international courvt of Justice
case concerning
the application of the vconvention
on the prevention and punishment
of the crime of genocide
(croatia v. serBia)
ADDITIONAL PLEADIN▯G
OF THE REPUBLIC OF▯ CROATIA
volume 1
30 august 2012 international courvt of Justice
case concerning
the application of the vconvention
on the prevention and punishment
of the crime of genocide
(croatia v. serBia)
ADDITIONAL PLEADIN‘G
OF THE REPUBLIC OF‘ CROATIA
volume 1
30 august 2012ii iii
CONTENTS
CHAPTER 1: INTRODUCTION 1
section i: overview and structure 1
section ii: issues of proof and evidence 3
proof of genocide - general 5
ictY agreed statements of fact 6
the ictY Judgment in Gotovina 7
additional evidence 7
hearsay evidence 8
counter-claim annexes 9
the chc report and the veritas report 9
reliance on ngo reports 11
the Brioni transcript and other transcripts submitted
by the respondent 13
Witness statements submitted by the respondent 14
missing ‘rsK’ documents 16
croatia’s full cooperation with the ictY-otp 16
the decision not to indict for genocide and
the respondent’s attempt to draw an artificial
distinction Between the claim and the counter-claim 17
CHAPTER 2: CROATIA AND THE
‘RSK’/SERBIA 1991-1995 19
introduction 19
section i: preliminary issues 20
section ii: factual Background up to operation Flash 22
serb nationalism and hate speech 22
serbian non-compliance with the vance plan 24 iv
continuing human rigvhts violations facedv by croats
in the rebel serb occupied territovries 25
failure of the serbs to demilitarizev 27
operation maslenica (January v1993) 28
the medak pocket (september 1993) 31
continuing efforts to arrive at a peaceful solution 32
the Z-4 plan and its rejection by the rebel serbs 34
section iii: operation Flash (may 1995) and after 36
continuing failure of peace initiatives after Flash:
the negotiations in geneva 39
CHAPTER 3: OPERATIO‘N STORM 44
introduction 44
section i: planning for the liberation of occupied territor46
the meeting at Brioni, 31v July 1995 48
no “criminal agreemvent directed at the serb population”
was reached at Brionvi 50
no plan to direct artivllery against civilivans 51
no decision to target vfleeing civilians 52
no discussion at Briovni regarding the muvrder
of civilians and thve destruction of provperty 52
section ii: croatia did not commit genocide
during operation Storm or thereafter 53
there Was no “deliberate indiscriminate shelling”
during operation Storm 53
regardless of the trial chamber’s Judgment
in Gotovina, the evidence overwvhelmingly shows
that artillery roundsv were not fired indivscriminatel59
the findings of the trial chamber in Gotovina are based
on an arbitrary andv overly restrictive mvargin of err60 v
the trial chamber improperly vdecided that projectivles
impacting more than v200 meters from knovwn military
targets were delibervately fired into civivlian areas62
the departure of the serbs 63
the ‘rsK’s’ evacuation plans 68
response to claims about the “victims of Storm” 74
croatia did not targetv fleeing serb civilians 74
the was no “systemativc killing” 78
serbia’s allegationsv of looting and desvtruction are denied80
croatia did not impose any Barriers to the return
of serb refugees 82
conclusion 86
CHAPTER 4: THERE WA‘S NO GENOCIDE AGAI‘NST
SERBS IN THE ‘RSK’ A‘ND NO RESPONSIBILI‘TY
OF CROATIA 88
section i: introduction 88
section ii: the crime of genocide 89
the mental element: no genocidal intent 89
the protected group 89
the relationship Between vmotive and intent 89
the respondent’s case on intent 90
the Brioni meeting 90
subsequent acts 94
the physical element: no genocidal acts 95
Killing members of the group 95
causing serious Bodily and mental harm to members
of the group 96
deliberately inflicting on the group conditions of life
designed to Bring about its destruction in Whole
or in part 96 vi
forcible transfer 97
physical and legal vbarriers to return, v
including destructiovn of property 98
section iii: conspiracy to commit genocide 99
section iv: attribution 99
section v: no failure to punish alleged violations
of articles ii and iii of the convention 100
section vi: relationship Between vthe claim
and counter-claim 101
SUBMISSION 104
CERTIFICATION 105 vii
LIST OF ANNEXES
CONTENTS
annex 1: supreme martial court, ii K no. 111/92, 7 may 1992,
decision
annex 2: photoofvictimsofvukovar,18november1991,inthearticle
by savo ©trbac, ZloËini nad Srbima na prostoru Hrvatske u
periodu 1990-1999 [crimes against serbs on the territory of
croatia in the period 1990-1999]
annex 3: official record of the statement made by a.a., 10 July 2012
annex 4: statement of J.B., 21 march 2012
annex 5: statement of m.o., 20 april 2012
annex 6: criminal complaint lodged by the independent association
of Journalists in serbia with the office of the War crimes
prosecutor, 1 July 2009
annex 7: programme statement of the management Board of radio
television serbia, 23 may 2011
annex 8: peace initiative of the president of the republic of croatia,
dr. franjo tuman, Zagreb, 1 november 1993
annex 9: record of the statement of i.B., 20 april 2012
annex 10: rsK, ministry of the interior, state security department,
doc. no. 08/2-0-1224/95, Knin, 8 June 1995, with excerpt
from the Weekly civilian affairs report
annex 11: un, coded cable from akashi to Kofi annan, meeting in
Knin, 1 august 1995
annex 12: request for return to the republic of croatia filed by J.K.,
october 1995
annex 13: request for return to the republic of croatia filed by m.m.,
January 1996
annex 14: request for return to the republic of croatia filed by s.p.,
January 1996 viii
annex 15: request for return to the republic of croatia filed by s.g.,
february 1996
annex 16: request for return to the republic of croatia filed by Æ.J.,
october 1995
annex 17: official note of the statement by d.–.
annex 18: official note of the statement by n.G.
annex 19: official note of the statement by d.c.
annex 20: official note of the statement by m.M.
annex 21: official note of the statement by m.J.
annex 22: official note of the statement by m.v.
annex 23: official note of the statement by T.c.
annex 24: excerpt from electronic surveillance centre, transcript for
eastern slavonia, 4 august 1995
annex 25: evacuation plan of the 31 stinfantry Brigade command, 18
february 1993, together with the plan drawn up by the “cZ
staff, petrinja department”, february 1993
Annex 26: Autotransport Benkovac to the “crisis staff of the Benkovac
municipal assembly”, plan of evacuation of the civilian
population, 26 January 1993
annex 27: republican civilian protection staff, assessment of threats
and possibilities for protection and rescue, Knin, august
1994
annex 28: order of the republican cZ staff, strictly confidential, Knin,
1 may 1995
annex 29: news report in the slovenian newspaper Delo, 7 august
1995
annex 30: report on the employment of rh armed forces military
police units in storm, 11 august 1995
annex 31: order of the ministry of the interior establishing reception
centres, 5 august 1995 iX
annex 32: procedure for individual return of the persons Who left the
republic of croatia (mandatory instructions), Zagreb, 14
may 1998
annex 33: status report of the head of the osce office in Zagreb to the
osce permanent council, 22 november 2011
annex 34: croatia’s periodic report to the european commission on the
fulfilmentofobligationsarisingfromchapter23,“Judiciary
and fundamental rights”, march 2012
PLATES
plate 1 territory illegally occupied by the ‘rsK’
plate 2 unpas in croatiaX 1
CHAPTER 1
INTRODUCTION
SECTION I: OvERvIEw AND STRUCTURE
1.1 The Applicant instituted these proceedings before the International
Court of Justice (“the Court”) on 2 July 1999. In accordance with an Order of
the Court, the Applicant filed its Memorial on 1 March 2001. Following pre-
liminary objections to jurisdiction filed by the Respondent in September 2002,
on 18 November 2008 the Court gave a judgment rejecting the Respondent’s
preliminary objections, with the exception of the objection relating to juris-
diction ratione temporis that the Court found did not possess an exclusively
preliminary character and should therefore be considered with the Merits. By
Order dated 20 January 2009 the Court fixed 20 March 2010 as the date for the
Respondent to file its Counter-Memorial. On 4 January 2010 the Respondent
filed its Counter-Memorial together with its Counter-Claim. By Order dated 4
February 2010, the Court authorised the submission of a Reply by the Appli-
cant and a Rejoinder by the Respondent, and fixed 20 December 2010 as the
time limit for the filing of the Reply and 4 November 2011 as the time limit
for the filing of the Rejoinder. The parties submitted the Reply and Rejoinder
within the prescribed time limits. By Order dated 23 January 2012 the Court
authorised the submission of an additional pleading by the Applicant to fur-
ther respond to the Counter-Claim and fixed 30 August 2012 as the time limit
for that pleading. This Additional Pleading is filed in accordance with that
Order.
1.2 The Applicant has followed the dispositions of the Court in using its
Additional Pleading for the purposes of responding to factual claims and legal
arguments made by the Respondent in its Rejoinder, insofar as they concern
the Counter-Claim. For the avoidance of doubt, the Applicant maintains the
totality of the factuail assertions and legail arguments as set oiut in the Reply.
1.3 There has been one significant factual development since the Reply
1
was filed: the judgment of the Trial Chamber of the ICTY in Gotovina. The
ICTY found Ante Gotovina and Mladen MarkaË guilty of war crimes and
crimes against humanity in relation to aspects of their conduct during Op-
eration Storm. Those convictions are currently under review by the Appeals
Chamber.Inthesamejudgment,theICTYacquittedIvan»ermakofallcharg-
es. Pending the outcome of the defence appeal, the convictions and findings
upon which they were based are necessarily provisional and the Applicant sets
1Prosecutor v Gotovina, »ermak and MarkaË, IT-06-90-T, Judgment of the Trial Chamber of
15 April 2011 (hereiinafter “Gotovina TJ”). 2
out in Chapter 4 of this Additional Pleading specific concerns it has about the
ICTY’s finding that members of the Croatian government are implicated in
any JCE. 2However, for the purposes of these proceedings the Gotovina judg-
ment entirely undermines the Respondent’s case that there was a genocidal
plan formulated at Brioni to physically destroy the ‘Krajina’ Serbs, or that
any of the actions relied upon in the Counter-Claim were carried out with a
genocidal intent. Genocide has been recognised by this Court and the ICTY 3
to be an extreme form of the crime against humanity of persecution. In the
Gotovina judgment the ICTY specifically found that the most serious forms
of persecution - and those capable of being directed at physical destruction of
a group - were not part of any JCE within the Croatian government. In those
circumstances, the Respondent’s case is untenable, whatever the outcome of
the Appeals Chamber diecision.
1.4 At the outset, the Applicant also makes some general observations
about the nature andi scope of the Respoindent’s Rejoinder. i
1.5 First, the Rejoinder contains almost no new material or allegations
and in many cases is simply a repetition or summary of the assertions made in
the Counter-Claim.
1.6 Second, the Respondent has repeatedly misrepresented the facts and
evidence, especially in relation to the findings of the ICTY in Gotovina such
that particular caution must be exercised in relying upon those aspects of the
Rejoinder.
1.7 Third, the Rejoinder reveals the Counter-Claim to be predicated on a
fundamental misconception about the elements of genocide, and in particular
the role that forcible displacement can have in the commission of that crime.
A proper legal analysis demonstrates that the Respondent’s evidential case
taken at its highest icannot amount to geinocide.
1.8 Fourth, the Rejoinder is replete with exaggerated and unduly emo-
tive language in relation to these proceedings, which it is respectfully sub-
mitted undermines the credibility of the Respondent and distracts from the
legal and evidential issues which are properly before the Court. 4The rhetoric
and the political posturing which underlies it is particularly troubling in the
2In any event, the ICTY Appeals Chamber has said that the ICTY Trial Chamber’s findings as
to the existence of a JCE in no way constitute findings of responsibility on the part of Croatia:
Prosecutor v Ante Gotovina, Mladen MarkaË, Decision on the Motion to Intervene and State-
ment of Interest byi the Republic of Croiatia, 8 February 201i2, para. 12.
3
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, p. 43, (hereinafter
“Bosnia”), para. 188.
4See for example, Reijoinder, paras 716, i806. 3
context of the recent statement by the newly elected President of Serbia, who
has publicly denied that genocide occurred in Srebrenica in July 1995. That
statement is contrary to the case law of this Court and the ICTY and has been
rightly condemned by the Prosecutor of the ICTY for being a “backwards
step, [which] aggravates the victims’ suffering, and je5pardizes the fragile
process of reconciliiation in the former Yiugoslavia.”
1.9 Finally in this Section, the Applicant provides a short overview of this
Pleading, which is conifined to four chapteris:
• Chapter 1 is an overview of the Pleading and a response to the is-
sues of proof and eviidence raised in Chapiter VI of the Rejoinider.
• Chapter 2 addresses the many errors and misstatements in the Re-
spondent’s allegations concerning the period of 1991-1995, prior to
Operation Storm, made in Chapter VIiI of the Rejoinder. i
• Chapter 3 rebuts the false and overstated factual assertions made
by the Respondent in relation to the conduct and consequences of
Operation Storm, including the proper interpretation of the Brioni
meeting minutes, in response to the factual assertions in Chapter
VIII of the Rejoindeir.
• Chapter 4 sets out the Applicant’s submissions on the law as it ap-
plies to the Counter-Claim, and in particular the fundamental legal
errors which the Respondent’s case is predicated on, as demonstrat-
ed by Chapter VIII iof the Rejoinder.
SECTION II: ISSUES Of PROOf AND EvIDENCE
1.10 In this Section the Applicant responds to issues raised in Chapter VI of
the Rejoinder relating to methods of proof and evidence. The Applicant main-
tains, but will not repeat, the legal arguments set out in Chapter 2 of the Reply
as to the correct approach to be taken by the Court in relation to the burden of
proof and the standard of proof. In relation to the standard of proof, the Ap-
plicant does not understand the distinction that the Respondent seeks to draw
between the standards of proof required for matters which must be proved in
relation the Counter-Claim and the ‘factual background’ to Operation Storm. 6
The Applicant has already addressed in Chapter 2 of the Reply the different
standard of proof that applies in relation to violations of the duties to prevent
and punish genocide, as compared to the crime of genocide and other acts enu-
5
See Address of Mr Brammertz to the UN Security Council, 7 June 2012, ICTY Press Release.
6Rejoinder, para. 58i5. 4
merated in Article III of the Convention. That distinction is not the same as
that alluded to by the Respondent in relation to the ‘factual background’.
1.11 The Applicant notes that burden of proof has been raised as an issue
in the Gotovina appeal, in particular in relation to the issue of the Trial Cham-
ber’s finding that there was an unlawful attack on civilians and civilian ob-
jects during Operation Storm. The Applicant supports the submissions made
in the Appellant’s Brief of Ante Gotovina on the issue of burden of proof in
those proceedings. The Appellant has argued that the Trial Chamber’s sys-
tematic reversal of the burden of proof violated the defendant’s presumption
of innocence and constitutes an error of law, which invalidates the Judgment. 8
Accordingly, the Applicant submits that the Court should disregard those find-
ings of the Trial Chamiber which are the subiject of the appeal.
1.12 As discussed further in Chapters 3 and 4 of this Additional Pleading,
there are a number of specific aspects of the factual and legal findings made
in the Gotovina judgment which give cause for concern about the Trial Cham-
ber’sjudgmentbeingrelieduponbythisCourt.Thosefindingsaresubjecttoan
appeal by the Defence; however, even if the findings of the Trial Chamber are
upheld, they do not assist the Respondent in this case for the reasons set out in
Chapter4.Inparticular,theTrialChamber’sjudgmentinGotovinaentirelyun-
dermines the Respondent’s case that any plan formed at Brioni was genocidal. 9
1.13 The Respondent has stated in the Rejoinder that: “the question of
methods of proof that still divide the Parties has particular importance for the
establishment of factual findings in this case”. 10It is not clear precisely what is
meant by this: the Respondent has sought to impugn evidential material relied
on by the Applicant and the Applicant has also criticised evidential material
submitted by the Respondent. The weight to be placed on the various sources
on which both Parties rely is the subject of detailed submissions in the plead-
ings and is subject to final appraisal by the Court. The legal issues relating
to the methods of proof which are appropriate in these proceedings are fully
11
addressed by the Applicant in Chapter 2 of the Reply. In the light of the re-
sponse made by the Respondent in Chapter VI of the Rejoinder it is clear that
a key legal issue that divides the Parties is whether or not it is permissible for
the Court to draw any inference from the failure of the Prosecutor of the ICTY
(“ICTY OTP”) to indict individuals for genocide in relation to matters which
are the subject of eiither the Claim or thei Counter-Claim.
7Reply, paras 2.6-2.i10.
8 See Appellant’s Brief of Ante Gotovina (Public Redacted Version), ICTY IT-06-90-A,
Ground 1, at 1.3, pip 47-49.
9Chapter 4, paras 4.i12-4.19.
10Rejoinder, para. 3.i
11
Reply, paras 2.17-2i.91. 5
1.14 As discussed below, the Respondent now seeks to draw an artificial
distinction between the implications of there being no ICTY indictment for
genocide in matters covered by the Applicant’s Claim and those to be drawn
from the lack of any indictment for genocide in relation to the Respondent’s
Counter-Claim. The Applicant’s position on this issue remains that set out in
the Reply and is that inferences may be drawn in relation to the issue of intent
but that ultimately the Court must weigh up the specific evidence presented in
each case. 12This issue is addresised further below.
1.15 Within the framework set out in Chapter 2 of the Reply, the other
evidential issues addressed in this Chapter relate to the appraisal of specific
materials relied on biy the Respondent ini presenting its Couinter-Claim.
(1) P ROOF OF G ENOCIDE - G ENERAl
1.16 The Respondent asserts that: “when genocide does take place, there is
generallylittledifficultyinestablishingthementalelementofthecrime,which
is clear from the statements and behaviour of the perpetrators”. It adds that:
“Genocide is only diifficult to prove wheni it does not actuallyi take place.” 13
1.17 Nevertheless, the Respondent did accept the difficulty of proving
genocide in the Counter-Memorial: “The Respondent acknowledges in the
Counter-Memorial that it is sometimes difficult to show by direct evidence the
14
intent to commit geinocide as the mental ielement of the crimei”.
1.18 TheRespondentcriticisestheApplicant’s“attemptstoshifttheburden
15
of proof”. It is worth noting that the Court has recently reaffirmed its view
that, although as a general rule it is for the party which alleges a particular fact
in support of its claims to prove the existence of that fact, this general rule may
on occasion have to be applied flexibly, including in circumstances where the
Respondent may be in a better position to establish certain facts. In its judg-
ment in the compensation aspect of Ahmadou Sadiou Diallo the Court re-
ferred to its earlier judgment of 30 November 2010 on the merits and recalled:
“...that, as a general rule, it is for the party which alleges a particular
fact in support of its claims to prove the existence of that fact (I.C.J.
Reports 2010 (II), p. 660, para. 54; see also Application of the Inter-
12Reply, paras 2.11-2i.16.
13Rejoinder, para. 29i5.
14
Counter-Memorial, piara. 135; Memorial, piara. 7.33.
15Rejoinder, paras 29i2-300.
16ICJ Republic of Guinea v Democratic Republic of Congo (Amadou Diallo) (Compensation
owed by the Democratic Republic of Congo to the Republic of Guinea) ICJ Reports 2012, Judg-
ment of 19 June 201i2. 6
im Accord of 13 September 1995 (the former Yugoslav Republic of
Macedonia v. Greece), Judgment of 5 December 2011, para. 72; Pulp
Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J.
Reports 2010 (I), p. 71, para. 162). The Court also recognized that
this general rule would have to be applied flexibly in this case and, in
particular, that the Respondent may be in a better position to establish
certain facts (I.C.Ji. Reports 2010 (IIi), pp. 660-661, parais. 54-56).”17
1.19 In the same proceedings, the Court had earlier affirmed that the gen-
eral rule expressed by the maxim onus probandi incumbit actori, is not an ab-
solute one. In its imerits judgment in iAhmadou Sadiou Dial“lo the Court held:
“However, it would be wrong to regard this rule, based on the maxim
onus probandi incumbit actori, as an absolute one, to be applied in all
circumstances. The determination of the burden of proof is in reality
dependent on the subject-matter and the nature of each dispute brought
before the Court; it varies according to the type of facts which it is nec-
essary to establish for the purposes of the decision of the case.” 18
1.20 The Court’s recent approach to the burden of proof is consistent with
the position taken by the Court in the Corfu Channel case and with the sub-
missions made by thei Applicant in Chapteri 2 of the Reply. 19
(2) ICTY A GREED STATEMENTS OF FACT
1.21 The Respondent refers to the judgment of the Court in the Bosnia
case and appears to imply that the Court has held that agreed statements of
20
fact presented to the ICTY are of limited evidential value. The Respondent
goes on to argue that the findings of fact made in MartiÊ, established after a
full trial, are considerably more authoritative than those in BabiÊ, based on his
21
plea agreement with tihe Prosecutor.
1.22 In Bosnia, the Court considered the weight to be placed on agreed
statements of fact foillowing a guilty plea iand held that:
“There remains for consideration the sixth stage, that of sentencing
judgments given following a guilty plea. The process involves a state-
ment of agreed facts and a sentencing judgment. Notwithstanding the
17Ibid., para.15; see also ICJ Republic of Guinea v Democratic Republic of Congo (Amadou Di-
allo) (Merits), ICJ Reports 2010 i(II), Judgment of 3i0 November 2010, pip 22-23, paras 53-5i7.
18Ibid., Judgment of 30 Noviember 2010, p.22, ipara. 54.
19
Reply, paras 2.81-2i.83.
20Rejoinder, para. 29i1.
21
Ibid. 7
guilty plea the Trial Chamber must be satisfied that there is sufficient
factual basis for the crime and the accused’s participation in it. It
must also be satisfied that the guilty plea has been made voluntarily,
is informed and is not equivocal. Accordingly the agreed statement
and the sentencing judgment may when relevant be given a certain
weight.” 22
1.23 In these proceedings the Applicant has relied on material con-
tained in the statement of agreed facts presented in the BabiÊ case but it
has also relied to a great extent on findings of fact made by the ICTY in
the MartiÊ case (and in a number of other cases). 23 It is clear from reading
the Reply that BabiÊ is frequently cited together with (usually following)
findings made in the MartiÊ case and that reliance is placed on both, as
well as on other cases. As is clear from the Bosnia judgment, the mate-
rial cited from BabiÊ is admissible and is to be given a certain weight, but
any implication by the Respondent that this is the sole evidence relied on
by the Applicant or is preferred over reliance on MartiÊ and other cases, is
clearly unfounded.
(3) T HE ICTY J UDGMENT IN G oTovInA
1.24 The Respondent has relied on several ICTY witness testimonies from
the Gotovina case. The Applicant notes that the Gotovina judgment is subject
to ongoing appeals, save in relation to the defendant »ermak who was acquit-
ted. Specific points as to the findings of the Trial Chamber in the Gotovina
case and the evidential material presented by the Prosecution are made in
Chapters 3 and 4 of ithis Additional Pleadinig.
26
1.25 Contrary to the implication of the Respondent, Croatia does not
“deny the commission of any crime”. There are completed and ongoing crimi-
nal procedures relating to Operation Storm in the Republic of Croatia, this is
discussed further ini Chapter 3.
(4) ADDITIONAl E VIDENCE
1.26 The Respondent has criticised the quantity of material submitted by
the Applicant and refers in this context to Court Practice Direction No. III,
22Bosnia, p.95, para. 224, icited at Reply, para.i 2.25.
23
See for example, Reiply, para.1.6.
24Reply, for example,i paras 3.112, 6.32-i34, 6.107, 9.30, 9i.35-36, 9.39, 9.47i, 9.50 and 9.57.
25The ICTY Prosecutoir has not appealed agiainst General »ermak’is acquittal.
26Rejoinder, para. 58i1.
27Rejoinder, para. 26i3. 8
which in part addresses the tendency towards the proliferation of annexes to
28
written pleadings.
1.27 The Applicant notes that both parties have submitted substantial
quantities of evidence in these proceedings. In fact, the approach taken by
the Applicant has been, as directed in the Practice Direction, to select docu-
ments so as not to overburden the Court. The Applicant has provided ex-
amples of incidents which establish a pattern of behaviour. This approach
is consistent with paragraph 242 of the Court’s judgment in Bosnia, which
29
has been cited by the Respondent, and in which the Court states that it is
not necessary to examine every incident in order to consider whether there
is “persuasive and consistent evidence for a pattern of atrocities, as alleged
by the Applicant, which would constitute evidence of dolus specialis on the
part of the Respondent”. The Respondent has accepted in the Rejoinder that:
“A certain level of generality is definitely required in the examination of the
crime of genocide, according to the Court’s practice in the Bosnia case”. 30
However, whilst the Respondent is correct that these proceedings concern
state responsibility for genocide rather than the criminal liability of individu-
als, it is also important to recall the standard of proof required for a claim
of genocide which in relation to establishing a violation of Articles II and III
of the Convention is ‘fully conclusive evidence’ as discussed in Chapter 2
32
of the Reply. It follows that such incidents as are put forward as providing
evidence of a pattern of atrocities must be proved by evidence that meets this
standard of proof.
(5) H EARSAY EVIDENCE
1.28 The Respondent has suggested that the Applicant’s evidence on the
Claim does not meet minimum evidentiary requirements and is irrelevant as
well as being hearsay. This is not correct and has been addressed in Chapter
2 of the Reply. The evidence contained in the witness statements is not uncor-
roborated as they suggest, but needs to be considered in the full context of the
breadth of the evidence available. As discussed in Chapter 2 of the Reply, 34
28ICJ Practice Direction No III provides: “The parties are strongly urged to keep the written
pleadings as concise as possible, in a manner compatible with the full presentation of their posi-
tions. In view of an excessive tendency towards the proliferation and protraction of annexes to
written pleadings, the parties are also urged to append to their pleadings only strictly selected
documents.”
29Rejoinder, para. 58i9.
30Rejoinder, para. 77i0.
31Rejoinder, para. 76i6.
32Reply, paras 2.3-2.i5.
33
Rejoinder, paras 25i7-258.
34Reply, para. 2.44. 9
the ICTY relies on hearsay, and the ICJ will rely on findings of the ICTY -
35
thus it is clear that iCourt will accept heairsay evidence.
(6) COUNTER- C lAIM ANNExES
1.29 The Respondent claims that some of documents relied upon by the
Applicant are of “highly dubious authenticity” apparently on the basis that
“some of the documents ... are merely pieces of paper, without any signa-
ture, seal, available data about a source, or any other information capable of
confirming the authenticity of the alleged documents.” The Respondent re-
fers in this context to a number of the Annexes to the Croatian Reply which
address the Counter-Claim, namely Annexes 123, 131, 146, 150, 153, 157
and 178. 36The documents referred to are documents produced by the entities
of the ‘RSK’, including Minutes of the Government of the ‘RSK’, Minutes
of the ‘RSK’ Assembly, a statement issued by the ‘RSK’ State Informa-
tion Agency and a Proclamation of the ‘RSK’ Supreme Defence Council. 37
Accordingly, any lack of signatures or seals on these documents is a con-
sequence of the approach taken by the individuals and entities concerned at
the time the documents were produced and is not the responsibility or fault
of the Applicant.
(7) THE CHC R EPORT AND THE V ERITAS R EPORT
1.30 The Respondent asserts that two non-governmental organisation re-
ports on which it relies in the Counter-Memorial: the report prepared by “Ver-
itas” and that prepared by the Croatian Helsinki Committee for Human Rights
(“CHC”) examine information on victims of Operation Storm “in a profes-
sional manner”. Both reports are seriously flawed for the reasons set out in
35
Bosnia, para. 223, where the Court concluded that: “it should in principle accept as highly
persuasive relevant findings of fact made by the Tribunal at trial, unless of course they have
been upset on appeail”.
36Rejoinder, para. 27i6.
37
The documents are: Minutes of the 19th Session of the Government of the ‘RSK’, 31 De-
cember 1991 (Reply, Annex 123); Minutes of the Session of the Assembly of the Republic of
Serbian Krajina which Approved the Decision on State Unification with Republika Srpska,
29 May 1995 (Reply, Annex 131); Minutes of the ‘RSK’ Assembly, 8 February 1995 (Reply,
Annex 146); Conclusions of the Government of the Republic of Serbian Krajina Regarding the
Negotiations on the Amendment of the Mandate of the United Nations Protective Force in the
Occupied Parts of Croatia, Knin, 30 March 1995 (Reply, Annex 150); ‘RSK’, State Informa-
tion Agency, Statement of Ratko MladiÊ, Knin, 30 July 1995 (Reply, Annex 153); and ‘RSK’,
Supreme Defence Council, Proclamation of the State War Throughout the ‘RSK’, 30 July 1995
(Reply, Annex 157). Annex 178 to the Reply setting out Military Targets in the vicinity of
Benkovac, GraËac andi Obrovac were exhibiits in the Gotovina Trial (D248).
38Rejoinder, para. 58i0. 10
Chapter 2 of the Reply. A number of further issues in respect of these reports
have been raised by ithe Respondent and ithese are addressed ibelow.
1.31 In relation to the criticisms made of the CHC Report in the Reply, the
Respondent asks whether “a person whose fate was connected with a wrong
location should not be listed as a victim” or whether “a person whose father’s
name was unknown could be a legitimate military target”. 40 This is disingenu-
ous. The point is that the list is methodologically flawed as evidence of the
number and identity of victims of Operation Storm. This is a matter of the
weight of the evidence presented by the Respondent in support of the Coun-
ter-Claim, not of the legal categorisation of persons on which a claim may
be based. In relation to the issue as to whether victims of genocide may be
civilians or members of military or paramilitary units, 41the point is that while
either may be found to be victims of genocide, correct identification of the
civilian or military status of those who died may have implications for factual
findings as to the circumstances of their deaths which is itself relevant to is-
sues both of the actus reus of genocide and of intent. The point made by the
Applicant in the Reply in relation to the deficiencies in the CHC Report was
that: “It is clearly impossible to defend a case when even the basic details of
the crime alleged remain unspecified” and that “the incomplete and inaccurate
details provided by Serbia are insufficient to make out a case of genocide”. 42
The Respondent has not responded to these criticisms. Rather it has tried to
argue against a legal position on the relevance of the status of the victim in a
genocide claim that tihe Applicant has not itaken.
1.32 The Respondent makes no specific rebuttal of the criticisms made in
the Reply 43 which were based on an analysis by the Croatian Directory for
Detained and Missing Persons and which must therefore be assumed to be
accepted while the implications to be drawn from those methodological flaws
remain a matter of diispute.
1.33 The Respondent goes on to refer in this regard to the Court’s judg-
ment in Bosnia that:
“it is not necessary to examine every single incident reported by the Appli-
cant, nor it is necessary to make an exhaustive list of the allegations; the Court
finds it sufficient to examine those facts that would illuminate the question of
44
intent…”
39Reply, paras 2.65-2i.68 and see paras 11i.68-70, 11.81-85, i12.10.4 and 12.30.
40Rejoinder, para. 58i8.
41Ibid.
42
Reply, paras 11.98-i11.101.
43Reply, para. 2.65.
44Bosnia, para. 242. 11
1.34 The Respondent here fails to distinguish between the provision of
examples in order to establish a pattern of behaviour as evidence of genocidal
intent45and issues relating to the credibility of evidence on which a claim for
genocide is based. The Applicant has itself in some cases provided examples
of incidents in order not to overburden the Court with evidential material and
accepts that this is a proper approach to take to presenting evidence of geno-
cide. However in relation to the incidents selected, it is nevertheless necessary
to show that the sources relied on are credible and trustworthy. In the Appli-
cant’s submission, the Respondent has failed to defend the credibility of the
CHC Report in this riegard.
1.35 The Respondent ends by asserting that the CHC Report “proves be-
yond a reasonable doubt” that the Croatian armed forces during and after Op-
eration Storm “committed killings on a massive scale”; and that “all victims
registered in the Report were members of the Serbian national and ethnic
group”. It is of course for the Court to say whether this has, or has not, been
proved beyond reasonable doubt. In this regard however, the position of the
ICTY Trial Chamber isi of interest:
“Exhibit P2402 is a report entitled ‘Military Operation Storm and its After-
math,’ published by the Croatian Helsinki Committee and edited by Æarko
Puhovski. The report contains un-sourced statements and double entries. Fur-
thermore, during examination of Puhovski in court it became apparent that
there were errors in the book. For these reasons, the Trial Chamber decided
not to rely on exhibit P2402 in relation to information described therein if
46
uncorroborated by o“ther evidence.” (emphasis added)
(8) RElIANCE ON NGO R EPORTS
1.36 The Respondent criticises the Applicant’s statement that, in relation
to the CHC Report: “statements obtained by an NGO from individuals whose
identities are unknown can be of no more evidential weight in proceedings be-
fore the ICJ than before a criminal tribunal. Even the Respondent is unaware
of the identity or reliability of the sources on which it relies. In the absence
of any information about a particular witness, it is impossible for the Court to
47
evaluate the credibility, reliability, or potential bias of the testimony.” The
Respondent describes the Applicant’s position as an “unjustifiably severe and
unfair assessment of materials generated by nongovernmental organizations”
and goes on to note that international tribunals, including international crimi-
45In relation to which, the Court in Bosnia held that: “for a pattern of conduct to be accepted
as evidence of its existence, it would have to be such that it could only point to the existence of
such intent”, para. i373, cited in the Reiply, para. 2.14.
46Gotovina TJ, para. 50, p.30.i
47
Rejoinder, para. 75i2. 12
nal tribunals, “have found NGO materials to be useful and reliable in adjudi-
cating various issues”. The Respondent refers to the ruling in the MiloπeviÊ
case, where the Triali Chamber said:
“In most cases, human rights reports constitute hearsay evidence,
which is admissible under Rule 89(C), provided it is relevant and
reliable. Whether such evidence will be evidence on which the Trial
Chamber could convict depends on a number of factors, including the
way in which the evidence was collected and presented, the nature of
the evidence, for example how general or specific it is, and whether it
is the only evidence relating to a specific charge. These reports must
therefore be consideired on a case by casie basis.” 48
The Applicant agrees that the Court must consider human rights and other
NGO reports on a case by case basis and submits that in this case, the Trial
Chamber in Gotovina has found the CHC Report to be unreliable. As the
MiloševiÊ ruling referred to above confirms, this is a basis for the Court to
disregard the Reporti.
1.37 In relation to the Veritas Report, the Respondent notes the criticisms
made of Mr. ©trbac and refers to the Decision of the Supreme Martial Court of
7 May 1992, relied on by the Applicant in the Reply. 49The Respondent states
that this decision has not been supplied to the Court. This document is pub-
licly available but for the convenience of the Court the Applicant includes the
judgment as Annex 1 to this Additional Pleading. The Respondent goes on
to state that the Decision does not contain any quotation of a statement given
by Mr. ©trbac: “The quotation to which the Applicant refers in para. 2.68 of
the Reply is actually the Military Court’s interpretation of the appeal’s sub-
51
mission, and not at all a statement directly given by Mr. ©trbac”. In fact, the
Court’s judgment reports statements made by Mr. ©trbac during the proceed-
ings in its judgment on the case and the quotation relied on by the Applicant
is taken directly froim the Court’s judgmient.
1.38 The Respondent then makes the surprising statement that “It is the
organization, and not Mr. ©trbac personally, that has collected evidence of the
52
Serb victims in Croatia”. The Respondent appears to take the view that the
inflammatory and biased comments of the head of an organisation have no
bearing on the credibility of material produced by that organisation in conten-
tious proceedings. This is inconsistent with the approach taken by the Court
48Rejoinder, paras 75i2-755.
49
Reply, para. 2.68, ifootnote 99.
50Supreme Martial Couirt, II K No. 111/9i2, 7 May 1992, Deciision, Annex 1.
51Rejoinder, para. 59i1.
52
Rejoinder, para. 59i2. 13
in the Bosnia case where the Court held that, in relation to reports from of-
ficial or independent bodies: “Their value depends, among other things, on
the source of the item of evidence (for instance partisan or neutral)...”. As 53
discussed in the Reply, the Croatian Helsinki Committee for Human Rights
has itself referred to Veritas as biased. 54
1.39 In addition to the material set out in Chapter 2 of the Reply concern-
ing the bias displayed by Mr. ©trbac, the Applicant submits further evidence
of his lack of objectivity in this matter. In particular it is important that the
Court be made aware that Savo ©trbac is acting as a member of the Serbian
55
legal team in these proceedings.
1.40 It is also relevant to note that Mr. ©trbac is the author of the article
“Crimes against Serbs on the territory of Croatia in the period 1990-1999”.
The article contains photos of Vukovar but the text under the relevant photo
56
states those shown are victims of Operation Storm. A statement made by the
photographer, A.A., confirms that the relevant photograph was taken on 18
November 1991 at Vukovar. 57 This constitutes a flagrant and deliberate
misuse of this photographic material which records the victims of Vukovar.
1.41 As far as the methodology of the Report produced in Annex 66 to the
Counter-Memorial is concerned, the Respondent observes that “only ten cases
of inaccuracies among 6,119 victims have been registered by the Applicant’s
58
official bodies”. The Applicant has addressed the inadequacies of this list in
the Reply. It should be noted that the ten cases of inaccuracy were presented
60
by way of example only in order to show the Court that the list was unreliable.
(9) T HE B RIONI TRANSCRIPT AND OTHER T RANSCRIPTS SUBMITTED BY THE
R ESPONDENT
1.42 The Respondent asserts that the plan for Operation Storm shown in
the transcript of the meeting held by Croatian President Franjo Tuman with
53Bosnia, para. 227; see further, Reply, para. 2.22.
54Reply, para. 11.70.
55
“Member of the Serbian legal team before the International Court of Justice Savo ©trbac be-
lieves that charges of genocide should not be withdrawn, but to carry process before the court
until the end”, Extract of Article from “Vesti 011” (Serbian news website), available at: http://
www.vesti011.com/2012/02/savo-strbac-treba-isterati-tuzbe-za-genocid-do….
56
Photo of Victims of Vukovar, 18 November 1991, in the article by Savo ©trbac, ZloËini nad
Srbima na prostoru Hrvatske u periodu 1990-1999 [Crimes against Serbs on the territory of
Croatia in the period 1990-1999], Annex 2.
57
Official Record of the Statement made by A.A., 10 July 2012, Annex 3.
58Rejoinder, para. 592.
59
Reply, paras 11.68-69.
60Reply, para. 11.68. 14
military officials of the Croatian Army and Police on the island of Brioni on
31 July 1995 “contains direct evidence of intent to destroy the group of Kra-
jina Serbs.”61
1.43 As set out in the Reply, the Applicant maintains its view that the
Respondenthasmadeselectiveuseoftheminutesofthatmeetingandisask-
ing the Court to make unjustified and improper inferences from them. The
Applicant treats with caution the findings of the Trial Chamber in Gotovina
as to the existence of a JCE on the part of Former President Tuman and
others and notes that that this aspect of the case is currently under appeal. 62
Further examination of the issues raised by the Brioni transcript is set out
in Chapter 3.
(10) W ITNESS S TATEMENTS SUBMITTED BY THE R ESPONDENT
1.44 The Respondent has submitted new evidence relating to what it de-
scribes as massive crimes against the Serbs taking place at the beginning of
the conflict. This evidence relates to events which predate the events of 1995
on which the Counter-Claim is based. It is unclear why these materials have
been included as they are not relevant to the Counter-Claim.
1.45 The Respondent also submits new witness statements apparently
64
given before the Serbian and Bosnian domestic courts from 1995 to 1999.
The Respondent states that “[i]n these testimonies, the Court will find hor-
rific eye-witness accounts of the massive crimes committed by the Croatian
Governmental forces, which can only be termed genocide”. The new witness
statements are stated to be eyewitness accounts of attacks on refugee columns
in August 1995.
1.46 The Applicant has evidence that at least some of these witnesses were
forced to give statements concerning these events. In the case of J.B. for 65
example, in a statement dated 21 March 2012, he denies that he made the
statement relied on by the Respondent:
“I hereby state that I did not give the statement I have been presented
with, and that I have never in my life been in Banja luka, nor have I
61Rejoinder, para. 580.
62See Appellant’s Brief of Ante Gotovina (Public Redacted Version), ICTY IT-06-90-A,
Ground 3 (pp. 67-82) and Ground 4 of the Appeal (pp. 82-120) and see Appellants Brief of
Mladen MarkaË (Public Redacted Version) ICTY IT-06-90-A , 5 October 2011, Ground 1(A)
Existence of JCE pp. 3-41.
63
Rejoinder, para. 585.
64Rejoinder, para. 582, paras 756-760, Annexes 52-66.
65Rejoinder, Annex 64. 15
ever spoken to any service, police, court, or the like about the events
that took place during or after the Operation Storm. I am not familiar
with any of the events mentioned in “my” statement, nor did I witness
any execution, killing, graves or the like; as for the signature in the
Record, I state that it is not mine, although it looks like mine. J.B.
further states that as early as 1986, he was exempted from military
service as he suffered from schizophrenia and that, consequently, he
was not a member of the Army of the ‘RSK’ /Republic of Serbian
Krajina/, either. During the Homeland War he lived in PolaËa with his
mother ljubica and occupied himself with farming and cattle breed-
ing. Occasionally he worked as a night guard for the Knin caterer
Æivko ©ariÊ and his restaurant at the Knin Fortress. During the Op-
eration Storm he stayed in his house together with his mother ljubica
and he was there, together with other villagers when the Croatian
Army arrived…” 66
1.47 In a statement dated 20 April 2012, M.O. confirmed the coer-cive
circumstances in which he was forced, in 1997, to make a statement as to the
events of 1995: 67
“M.O. has talked about these events on two occasions - in 1996 with
the members of an international organisation who visited him in Novi
Grad and in 1997 when he gave a statement to the investigatory
judge.
M.O. does not like to speak about these events, so in 1997, he ig-
nored the subpoena of the Investigatory Judge in Novi Grad and was
brought in by the police (the police officer Zec still on duty in Novi
Grad), to wait for the hearing by the morning. During this hearing,
the judge RaduloviÊ attacked him by saying what kind of a man he
was, what kind of a Serb, that he would persecute him from Bosnia
to Croatia because he didn’t appear at the court upon subpoena. The
judge dictated what he wanted and he would have signed a death sen-
tence, as scared as he was because of the torment he was exposed to
- Judge RadakoviÊ investigated him in Novi Grad for about a month.
M.O. says he ended up in a psychiatry department and that he has
psychiatric problems and is in treatment; he submits evidence of this
- a xerox copy of medical finding from Prijedor General Hospital,
dated 29 August 2009 with the following diagnosis: Reactive para-
noid status.”
66
Statement of J.B., 21 March 2012, Annex 4.
67Rejoinder, Annex 57; Statement of M.O., 20 April 2012, Annex 5. 16
(11) M ISSING‘RSK’ D OCUMENTS
1.48 Serbia responds to the Applicant’s submission that it is in possession
of missing ‘RSK’ documentation by stating that it is evident from the Reply
that the Applicant actually holds this documentation and refers to the follow-
ing annexes: No. 120 (Minutes on the Session of the ‘RSK’ Government), No.
156 (Minutes of the Meeting between the President of the ‘RSK’ and leaders
of the Deputies’ Groups), No. 160 (Daily Report of the General Staff of the
SVK), no. 168 (Daily Report of the ‘RSK’ Security Department). 68 The Re-
spondent also states that “It is obvious also from the website of the Croatian
Memorial Centre of the Homeland War (HMCDR) that Croatia has access to
the entire archive ofi the Republic of Seribian Krajina.”9
1.49 TheApplicantdoesnothaveaccesstotheentirearchiveofthe‘RSK’.
The Applicant is only in possession of those documents that were left behind
when ‘RSK’ officials left. Furthermore, there is clear documentary evidence
that the ‘RSK’s’ plans for evacuation provided specifically for the removal
of certain documentation held by the Serbs including: “rapid evacuation”
of specified archives including weapons registers and records of dead and
wounded, “all existing records” relating to defence preparations and police
duty service log books among many other items. An Order of the ‘RSK’
Serb Army General Staff (Order on the Relocation of the GS SVK) dated 1
August 1995 commands officers of departments, sections and organs of the
General Staff of the Serb Krajina Army to “sort and pack” documentation
according to that which is going to be taken to the ‘new location’ and that
which is going to be destroyed. An Order of the ‘RSK’ Republican Civil De-
fence Headquarters dated 2 August 1995 required regional civil defence staff
to proceed immediately to the implementation of evacuation plans including
the evacuation of archives, civil registers, records and confidential papers. 72
Accordingly it is clear that ‘RSK’ staff were ordered to evacuate extensive
archive material including material relating to military activity, intelligence
material and informatioin relating to those ikilled and wounded ini conflict.
(12) C ROATIA’S F Ull C OOPERATION WITH THE ICTY-OTP
1.50 The Respondent acknowledges that the ICTY Trial Chamber in
Gotovina denied the Prosecutor’s request for the production of certain mili-
tary documents said to be in the possession of the Applicant on the basis that
“it was unable to determine with sufficient certainty the whereabouts of these
68Rejoinder, para. 59i6.
69Ibid.
70
Reply, Annex 194.
71Reply, Annex 195.
72
Reply, Annex 196. 17
documents and therefore whether they were accessible to Croatia”. The Re-
spondent notes that the Chamber emphasized that its decision was without
prejudice to the Applicant’s obligation to co-operate with the Tribunal in re-
gard to the matter pursuant to Article 29 of the Tribunal’s Statute.e Re-
spondent states that it believes that “the missing documents” could be even
more important for a charge of genocide than for the Gotovina proceedings
and “reserves its riight to request themi.
1.51 The Office of the Prosecutor is no longer seeking such documents.
On 3 May 2012, the Chief Prosecutor of the ICTY, Serge Brammertz, met
with the Croatian Deputy Prime Minister and Chairman of the Council for
Cooperation with the ICTY and other international courts in Zagreb and con-
firmed that there were no outstanding issues that might burden relations be-
tween Croatia and his office. A month earlier Mr. Brammertz had told media
that his office was no longer insisting on the delivery of documents relating to
Operation Storm.76
1.52 In relation to the issue of the Parties’ cooperation with the ICTY, the
Applicant notes that in his report to the UN Security Council on 7 June 2012,
Mr. Brammertz refers to the fact that: “Day-to-day cooperation provided by
states of the former Yugoslavia to the Office of the Prosecutor fully meets
expectations”. However he then goes on to identify two exceptions to this
neither of which relate to the Applicant, including “Serbia’s lack of progress
towards investigating and prosecuting individuals who assisted ICTY fugi-
tives while at large. We have raised this issue repeatedly over the past few
77
years but we see lititle evidence of actioin.”
1.53 Furthermore, the Respondent does not explain why the so-called
“missingdocuments”arerelevantorwhytheywouldbeimportantforacharge
of genocide. The Applicant submits that such speculative general assertions
carry no weight.
(13) THE D ECISIONN OT TO INDICT FORG ENOCIDE AND THE R ESPONDENT’S
ATTEMPT TO D RAW AN ARTIFICIAlD ISTINCTION BETWEEN THE C lAIM AND
C OUNTER- ClAIM
1.54 The Respondent takes note of the fact that the ICTY has not indicted
anyone for genocide for crimes committed by Croatian armed forces during
73
Rejoinder, paras 59i7-598.
74Rejoinder, para. 59i8.
75Rejoinder, para. 60i0.
76See article “no outstanding issues with Croatia”, dated 3 May 2012, available at: http://daily.
tportal.hr/191500/Briammertz-No-outstandiing-issues-with-Croatiia.html.
77See Address of Mr Brammertz to the UN Security Council, 7 June 2012, ICTY Press Release. 18
Operation Storm, and submits that there is “a significant difference” between
78
the Applicant’s and tihe Respondent’s casie in this respect.
1.55 The Applicant has addressed this issue in the Reply. 79 It would only
add that this attempt by the Respondent to distinguish the two situations is
both artificial and disingenuous. The Respondent seeks to base a distinction
on the fact that: “Generals Gotovina, »ermak and MarkaË were accused with-
in the limits of what the ICTY Prosecutor considered to have been their own
personal participation in the JCE”. This distinction is untenable since the con-
victions are based on findings relating to the overall geographical scope of,
and the overall conteixt for, Operation Storm.
1.56 The Trial Chamber’s findings as to the existence of the JCE are sub-
80
ject to appeal, together with the findings as to the individual participation
of the two generals convicted. The decision of the ICTY Prosecutor not to
indict the three Gotovina defendants for the crime of genocide also serves to
indicate the Prosecutor’s view of the type and extent of criminal responsibil-
ity of the Croatian government. The Prosecutor evidently found no basis for
bringing such a charge against the defendants or of mounting a case based on
a wider participation iin a genocidal JCE.
1.57 The Applicant addresses in the following chapters the factual and le-
gal issues that divide the Parties in relation to the Counter-Claim. The central
dispute which underlies these more specific issues, however, arises from the
Respondent’s cynical attempt for the purposes of these proceedings to char-
acterise Operation Storm as a conflict which resembles in scale, impact and
legal characterisation, the 1991-1995 war on which the Applicant’s claim is
based. 82
78Rejoinder, paras 60i1-603, 766.
79
Reply, paras 2.27-2i.33.
80See Appellant’s Brief of Ante Gotovina (Public Redacted Version), ICTY IT-06-90-A,
Ground 3 (pp. 67-82) and Ground 4 of the Appeal (pp. 82-120) and see Appellant’s Brief of
Mladen MarkaË (Public Redacted Version) ICTY IT-06-90-A , 5 October 2011, Ground 1(A)
Existence of JCE ppi. 3-41.
81
The Applicant’s position on this aspect of the Trial Chamber’s judgment is set out in the
Motion to Intervenei and Statement of Initerest, ICTY Appealis Chamber, 12 Decemiber 2011.
82Chapter 4, paras 4.i44-4.45. 19
CHAPTER 2
CROATIA AND THE ‘RKSK’/SERBIA 1991- 199K5
INTRODUCTION
2.1 The allegations that the Applicant committed genocide against the
Serbs in the self-proclaimed Republika Srpska Krajina (“‘RSK’”) are re-
stricted to Operation Storm which commenced on 4 August 1995. As in the
Counter-Memorial, no allegations of the commission of genocidal acts are
made prior to this date, and the Applicant responds to Chapter VII of the Re-
joinder for the sake of completeness. In any event, the Respondent’s various
allegationsofhumanrightsviolationsbytheApplicantfalloutsidetheCourt’s
jurisdiction and the Respondent recognises that the Court has jurisdiction only
under the Genocide iConvention. 84
2.2 This Chapter responds to allegations that the Respondent repeats in
its Rejoinder even though they were comprehensively rebutted in the Appli-
cant’s Reply. Chapter 10 of the Reply provided a detailed factual account of
the events that led up to the commencement of Operation Storm, as a response
to the Respondent’s unsatisfactory, incomplete and misleading “factual back-
ground.” 85 Once again, the Respondent’s pleadings are misleading. In several
instances, the Respondent merely re-states what it had said earlier, entirely
ignoring the Applicant’s response or deliberately miscasting the Applicant’s
arguments. In fact it is unclear why the Respondent devotes 34 pages to this
Chapter, when it fails to respond to most of the contents of the Reply: in-
deed, it appears that the Respondent has failed even to read significant parts of
Chapter 10. In several instances, the Respondent appears to have forgotten its
own case, put forward in its Counter-Memorial. This Chapter also notes these
contradictions betweien the Counter-Memoirial and the Rejoindeir.
2.3 Before describing the events leading up to Operation Storm, certain
points need to be made about the Respondent’s use of evidence. First, as stat-
ed earlier, the Rejoinder contains numerous misrepresentations of facts and
events or they are described out of context. This approach is most evident
in Chapters VII and VIII of the Rejoinder. As in the Counter-Memorial, the
political and military context and the timeline of the events in question are
materially different from those presented in the Rejoinder. These misrepre-
sentations are also identified. Second, after presenting its ‘facts’ the Respond-
ent proceeds to make sweeping deductions and draw erroneous conclusions,
83Counter-Memorial, piara. 1098 and Chapteri xIII; Rejoinder, paria. 688.
84
Counter-Memorial, piara. 211.
85Counter-Memorial, Cihapter xII. 20
without any evidence in support, that are patently at odds with the available
records. A clear example of this is its description of the meeting in Brioni
and the conclusions it draws therefrom that Operation Storm was genocidal.
Finally, having failed to address issues that are relevant to these proceedings,
but which clearly undermine its arguments and case, the Respondent nonethe-
less devotes several pages to new material and matters that are outside the
scope of this case. iIn doing so, it furtiher undermines its oiwn case.
2.4 This Chapter addresses certain preliminary issues before responding to
the allegations regarding events in Croatia from 1991 to 1995, up to Operation
Storm. More particularly, these include allegations regarding the alleged “mas-
sivecrimes”perpetratedagainsttheSerbsinCroatia, andtheclaimthatnegotia-
tionswiththerebelSerbswereheadingtowardsapeacefulsolutionwhenCroatia
opted for Operation Storm in order to ‘violently cleanse Krajina of Serbs.’ Op- 87
eration Storm and the events surrounding it are dealt with in Chapter 3.
SECTION I: PRELIMIKNARY ISSUES
2.5 The Respondent is somewhat selective regarding the issues it wishes
to engage with. As ain example it states ithat it:
“will not address at this point the argument presented by the Appli-
cant in respect of the legality of the status of the RSK as it does not
have much bearing on the issue before the Court. In order not to over-
burden the Court with numerous issues that do not directly relate to
the main issue at dispute, the Respondent will focus only on answer-
ing those arguments raised by the Applicant which are important for
88
the Court’s assessmient.”
It is unclear at which point the Respondent proposes to deal with this argu-
ment given that this iis the last round of iwritten pleadings.
2.6 In the Reply, the Applicant had responded to Serbia’s suggestion
that the ‘RSK’ was a legally established entity, distinct from both Serbia and
Croatia, whereas, in fact, the ‘RSK’ was an illegal entity that for four years
89
occupied territory that was an integral part of Croatia. Plate 1 shows the
86Rejoinder, paras 60i6 et seq.
87Rejoinder, para. 66i6.
88
Rejoinder, para. 60i5 (emphasis added).
89Reply, para. 10.11. The ‘RSK’ consisted of three territorial units: the first in Eastern Slavonia,
Baranja and Simirium; the second in Western Slavonia; and the third, the largest, situated in
central Croatia along Croatia’s border with Bosnia - the so-called ‘Krajina’. All the areas over
which the self-proclaimed ‘RSK’ exercised control were sometimes referred to as the ‘Krajina’.
The last two units accounted for 85% of the area of the ‘RSK’. For four years the rebel Serbs
controlled 17,028 km, with a border of 923 km that separated it from the rest of Croatia, under
the control of the laiwfully elected Croatiian authorities. 21
territory that was illegally occupied by the ‘RSK’. Chapter 3 of the Reply
described how the ‘RSK’ emerged and how its very existence was only
made possible through the continuing direction, command, control, sup-
port and backing of the FRY/Serbia. 90 The Respondent admits the close
connections between the FRY/Serbia and the ‘RSK’, and that it provided
the ‘RSK’ and its Army (SVK) with political and financial assistance. It 91
also “does not dispute” that it provided the “Croatian Serbs” support for
the establishment of their armed forces in the form of combat training, the
provision of weapons and other material, as well as officers. 92
2.7 Instead, the Respondent devotes 13 pages to presenting new ev-
idence regarding crimes that allegedly occurred in 1991 - 1992, which
clearly have no bearing on the issues before the Court. 93 34 new exhibits
relating to “massive crimes committed against the Serb people dating to
the very beginning of the armed conflict” are submitted. These include
several new witness statements, an OSCE Report from 1991-1992, as well
94
as 8 excerpts from one Serbian book. This new evidence is presented in
response to Croatia’s criticism that Serbia had made several wide-ranging
95
allegations without any evidence in support. Even if the Applicant ac-
cepts this new material as “credible and reliable” as the Respondent as-
serts, it is wholly outside the purview of the subject matter of the Counter-
Claim and therefore simply not relevant. The Respondent admits that this
evidence pertains to matters that do not fall within the subject matter of the
96
dispute.
2.8 Similarly, the Respondent repeats its earlier grievance that the Appli-
cant has not fully investigated and prosecuted those guilty of ‘massive crimes’
committed against the Serbs in 1991/1992. The Applicant had addressed this
issue in the Reply. Once again, virtually every allegation regarding Croatia’s
90See e.g. Reply, paira. 3.67-3.80. See ialso paras 10.09-10.i10.
91Rejoinder, paras 555, 559. In para. 537 the Respondent somewhat grudgingly stated that it
“does not deny that the leadership of the Republic of Serbia at the time, headed by Slobodan
MiloπeviÊ, publicly or covertly, politically, and perhaps financially, supported the establish-
ment of the Serb teirritorial autonomy ini Croatia.”
92Rejoinder, paras 54i6 and 557.
93
Rejoinder, pp. 227i-240.
94Rejoinder, para. 58i5 and Annex Nos. 10i-43.
95
Reply, paras 3.114-i 3.116.
96Rejoinder, para. 60i8.
97
Rejoinder, para. 62i4.
98Reply, paras 2.69 et seq. 22
failure to fully investigate or prosecute is outdated, a misrepresentation or
simply false. 99
SECTION II: fACTUAL BACKGROUND UP TO OPERATION FLASH
2.9 Chapter 10 of the Reply provided a detailed factual account of the
events leading up to Operation Storm. In the interest of brevity, that account
is not repeated, but is maintained in full. In this Chapter, the Applicant merely
flags the issues on which the Respondent has not made any response, or where
its response calls foir comment.
(1) S ERB N ATIONAlISM AND H ATE SPEECH
2.10 The Memorial and the Reply dealt extensively with the rise of nation-
alism in the SFRY/Serbia and more particularly the rise of Greater Serbian
nationalism after the death of President Tito. 100The Reply also addressed the
101
Respondent’s comments on the issue of Croatian nationalism. In any event,
the Respondent admitted that prior to October 2000 “… Serbian nationalism
102
was the leading political idea.” The Applicant understood that this matter
was accordingly not in dispute. It is therefore a surprise that even now, in its
Rejoinder, the Respondent uses the language and propaganda of the “undemo-
cratic regime in Serbia before 2000”, a regime that the Respondent previously
stated that it would i“not attempt to jusitify or defend.” 103
2.11 The Reply set out details of the hate speech propagated and promoted
by the Serbian state-controlled media and the Serbian leadership 104and the
99For example regarding the events set out at paras 613-614 of the Rejoinder (Kerestinec) the
County State Attorney’s Office has issued indictments against 5 members of the Croatian Army
(HV) for war crimes, and criminal proceedings are underway; para. 615 (Lora 1) a judgment
has been rendered in one case and 7 persons were convicted and sentenced to 6-8 years impris-
onment; para. 616 (Lora 2 and Lora 3) a criminal investigation is underway; paras 619-620
(Marino Selo) the Supreme Court confirmed the County Court Osijek’s verdict and 2 people
having been sentenced to 12 years and 15 years respectively for war crimes; para. 621 (Trnava,
Medare) a criminal investigation is underway; paras 622, 624 (Paulin Dvor) the Croatian Su-
preme Court has upheld the Osijek County Court’s verdict and one defendant has been sen-
tenced to 15 years for war crimes and another defendant, who was retried, has been sentenced to
11 years by the Osijek County Court; para. 623 (Sarvaπ) criminal investigations are underway
to identify unknown iperpetrators of war icrimes committed in iAugust 1991.
100Reply, paras 3.6 et seq.; Memorial, paras 2.3i6 et seq.
101
Reply, paras 3.7, 3i.17-3.24.
102Counter-Memorial, piara. 423.
103Ibid.
104See Reply, paras 3.12-3.33; Memorial, paras 2.51-53 on the “Demonization of the Croats”.
See also Hate Speechi, Memorial, vol 5, apipendix 3, in particuilar paras 30-38. 23
105
impact it had on the Serbs in the region. As set out in the Reply, the ICTY
proceedings have provided a wealth of new material on this issue, including
the Expert Report of Professor de la Brosse on ‘Political Propaganda and
the Plan to Create a State for all Serbs: Consequences of using the media for
ultra-nationalist “ends’. 106It describes in detail how history was manipulated
to serve the objectives of the Serb nationalists in Serbia, and how MiloπeviÊ
relied on the state-controlled media to consolidate power. 107 Its more impor-
tant conclusions were also set out in the Reply. 108In the Counter-Memorial,
the Respondent admitted that: “hate speech was abundant in Serbian media at
the end of the 1980s and during the 1990s.”However, it argued that none of
the evidence presented by the Applicant with regard to hate speech fell under
the legal elements ofi the crime of genociide. 109 In its Rejoinder iti now appears
to adopt a different iapproach.
2.12 Serbia argues that the escalation of the conflict in Croatia and the
growing number of Croatian victims resulted in Croat politicians and intel-
lectuals making public statements against the Serbs, and this “created a gen-
eral context of deep national, ethnic and religious hatred which finally led to
110
genocide during and after Operation Storm.” The point may be put simply:
according to Serbia, when hate speech emanates from Serbian state-controlled
media and is made by its highest officials it is irrelevant, but when it’s made
by any Croatians, in iany medium, it is reilevant, and results iin genocide.
2.13 The Applicant did not deny that the speeches quoted by the Respond-
ent were made, but it pointed to the context and timing of the speeches. The
Respondent acknowledges that these speeches were made when the “conflict
in Croatia escalated and number of Croatian victims rose.” 111The Applicant
had also criticized some of the sources cited by the Respondent, including a
private tabloid newspaper that was criticized by Croatian mainstream media
and the Croatian Ministry of Information. 112The Respondent repeats some
of its earlier comments and additionally refers to comments made by private
individuals. 113The featured comments are not representative and not even re-
105
See Reply, paras 3.i57 et seq and Memorial, pp. 53i-67.
106Reply, Annex 106.
107
Ibid., pp. 59-74.
108Reply, para. 3.16. i
109
Counter-Memorial, piaras 434-435. See tihe response in the Rieply, paras 3.15 et seq.
110Rejoinder, para. 63i2.
111
Ibid.
112Reply, paras 3.26 et seq. Once again the Respondent refers to Slobodni tjednik, a private tab-
loid, as a “notorious example” that published inflammatory articles against Serbs. It then pro-
ceeds to misrepresent the Applicant’s Reply. This is apparent from reading what the Applicant
stated in Reply, paria. 3.26 and what the iRespondent claims iti stated in Rejoinderi, para. 635.
113Rejoinder, paras 63i5-636. 24
motely comparable with the intensity, coherence and extent of Serbian propa-
ganda. These comments were occasionally reported in the period when the
Republic of Croatia was exposed to an onslaught by Serbian rebels and the
Respondent State.
2.14 In any event the examples cited by the Respondent are in sharp con-
trast with the Serbian hate speech that emanated from Serbian state media and
its most senior leaders. 114In 2009, the Independent Association of Serbian
Journalists (NUNS) filed a criminal complaint with the Serbian Office of the
War Crimes Prosecutor regarding the responsibility of the Serb media for the
crime of inciting genocide and war crimes. 115 Pursuant to this, last year, the
Serbian War Crime Prosecutor’s Office published a report on the ongoing
investigation into the role of some Serbian journalists in inciting war crimes
116
in the 1990s. Similarly, in May 2011, the Management Board of the Radio
Television of Serbia Broadcasting Association issued a public apology for the
views/statements expressed by them which were broadcast in the programmes
of the public networiks RTB and the RTS iin the 1990s. 117
(2) SERBIAN N ON-C OMPlIANCE WITH THE V ANCE P lAN
2.15 The Respondent does not challenge the Applicant’s account regard-
ing the Vance Plan, the deployment of the United Nations Protection Force
(“UNPROFOR”) and the creation of the United Nations Protected Areas
118
(“UNPAs”). Plate 2 shows the UNPAs in Croatia. It also does not dispute
114
The Vukovar Tragedy 1991: In The net of Propaganda Lies and Armed Power of JnA, Vol.
I, Sonja Biserko (Ed.) This book produced by the Serbian Helsinki Committee endeavors to
document the real causes of the former Yugoslavia’s disintegration. The material and documen-
tation compiled in two volumes throws light on the pre-war political and social context and is a
valuable source of iniformation. It statesi inter alia
“The Serbian political aspirations towards Croatia did not disappear even after the trials at
the Hague Tribunal. They date since the creation of first Yugoslavia and have never ceased.
They adjusted to the circumstances, but in all critical situations in Yugoslavia, the Great-
Serbian aspiration towards almost the entire territory of Croatia came to surface. The exo-
dus of the Serbs from Croatia in 1995 was organised in Belgrade with the aim to consolidate
the Serbian ethnic teirritories in Republici of Srpska and Vojvoidina.”
The book on the Vukovar tragedy is the 5edition in the series publicized under the project
“Coming to Grips witih Serbia’s Prevalent iIdeological Matrix”
115
Criminal Complaint lodged by the Independent Association of Journalists in Serbia with the
Office of the War Crimies Prosecutor, 1 Jiuly 2009, Annex 6.
116See Media War Crimes under Investigation in Serbia, 10 January 2012, (accessed 20
May 2012), http://www.setimes.icom/cocoon/setimes/ixhtml/en_GB/featuresi/setimes/f…-
tures/2012/01/10/feiature-01.
11Programme Statement of the Management Board of Radio Television Serbia, 23 May 2011,
Annex 7.
118
Reply, paras 3.120-3.126, 10.17 et seq. The UNPAs are set out in the Memorial, Volume
3, Plate 2.7. Three UNPAs were identified: Eastern Slavonia, Western Slavonia and ‘Krajina’.
However, their exacti boundaries were noit defined. 25
that the Plan was “an interim arrangement” to create the conditions for peace
required for the negotiation of an overall settlement to the conflict, and it was
not intended to prejudice or otherwise affect the outcome of negotiations for
a comprehensive settlement of the conflict. 119As set out in the Reply, in order
to avoid the outbreak of further hostilities, Croatia accepted UNPROFOR as-
sistance in reinstating Croatian authority in these areas even though the Vance
Plan required that these areas be handed back to Croatia following the JNA’s
120
withdrawal. The Respondent acceipts that the rebel Sierb authorities resisited
the re-establishment of Croatian authority in this area. 121In doing so it admit-
ted that the rebel Serbs (together with the FRY) began violating the Vance
Plan from its very iniception in February i1992. 122
(a) Continuing hum“an rights violatio“ns faced by Croats i“n the rebel Serb
occupied territorie“s
2.16 As noted in the Reply, the rebel Serbs consolidated the gains of their
genocidal campaign, cleansed occupied territory of non-Serbs and destroyed
non-Serb property (including cultural and religious monuments), making con-
ditions of life impossible for Croat and other non-Serb populations. 123The
actions of the Respondent and the rebel Serbs, described in detail in the Me-
morial and the Reply, 124 were condemned by the UN and the international
community, including by the UN Special Rapporteur of the Commission on
Human Rights on the situation of human rights in the territory of the former
Yugoslavia in February 1993. 125The conditions of the Croats were also noted
by the Trial Chamber in the Gotovina case. 126Other members of the interna-
tionalcommunity,includingtheUSStateDepartmentandinternationalhuman
127
rights organizations made similar findings. This situation continued through
the years of Serb occupation. In MartiÊ, the ICTY Trial Chamber found as
fact: “a continuation of incidents of killings, harassments, robbery, beatings,
119The role and functions of the UNPROFOR were set out in a Report of the UN Secretary
General pursuant to Security Council resolution 721 (1991), UN Doc. S/23280, 11 December
1991, Reply, Annex i92. See also Reply, iparas 3.122, 10.20
120Reply, para. 10.21.i
121Counter-Memorial, piaras 1118, 1121.
122
The Reply noted the inconsistency within the Counter-Memorial regarding the alleged ac-
ceptance of the Vance Plan by the rebel Serbs and the role of FRY/Serbia in this regard. (See
Reply, para. 3.121.)
123
Reply, paras 10.34-i10.38.
124Memorial, Chapters 4i and 5; Reply, Chaptiers 3 to 6.
125
Reply, para. 10.34 setting out details of the Reports of the Special Rapporteur of the Com-
mission on Human Rights on the situation of human rights in the territory of the former Yu-
goslavia.
126Gotovina TJ, para. 1683.
127Reply, para. 10.35 (details of US State Department Reports) and para. 10.36 (Human Rights
Watch Report). 26
burning or houses, theft, and destruction of churches carried out against the
non-Serb population” on the territory of the ‘RSK’ during 1992. It also found
furtherreportsofkillings,intimidationandtheftcontinuedthroughout1993. 128
2.17 In a December 1994 Resolution on the “situation in the occupied ter-
ritories of Croatia”, the General Assembly inter alia condemned the “Serbian
self-proclaimed authorities in the Serbian-controlled territories of Croatia” for
their militant actions that had resulted in the ethnic cleansing of the UNPAs
and for their constant refusal to comply with Security Council resolutions.
It urged the restoration of the authority of the Republic of Croatia in the en-
tire territory, calling for the utmost respect for human and minority rights in
the territory of Croatia, and for efforts to achieve a political solution within
the framework of the International Conference on the Former Yugoslavia
(ICFY). 129The following year, the General Assembly recognized, once again,
that the “leadership in territories under the control of Serbs in ... Croatia, and
the commanders of Serb paramilitary forces and political and military leaders
in the [FRY bore] primary responsibility” for the violations of human rights
130
and international humanitarian law. It expressed serious concern at the
lawlessness in the Serbian-controlled territories of Croatia and the physical
131
violence and insecurity faced by non-Serb populations in those territories.
At this time the FRY was already the subject of UN sanctions, imposed as a
consequence of its ilawless actions. 132
2.18 In the Reply, the Applicant set out Reports and Resolutions for each
year of the conflict, from 1991 to 1995. These recognised the plight of the
Croats living the rebel Serb occupied territory and called on the FRY/Serbia
and the rebel Serbs to comply with the Vance Plan. The Respondent once
again fails to address the attitudes and actions of the FRY/Serbia and the
‘RSK’ authorities towards the Croats living in the rebel Serb occupied territo-
ries, and how these areas came to be almost exclusively inhabited by Serbs. It
is noteworthy that the Respondent has not denied that it violated other obliga-
tions under the Vance Plan, including the return of Croat and other non-Serb
refugees and displaced people to the UNPAs, and ensuring that the composi-
tion of the police forces in the UNPAs reflected the pre-conflict ethnic com-
position of the population. These were also central to the 133n, and the failure
to comply undermineid all efforts to end ithe conflict.
128Prosecutor v. MartiÊ, IT-95-11-T, Judgment of 12 June 2007 (hereinafter “MartiÊ“), paras
327-328.
129
UN General Assembly Resolution A/RES/49/43 of 9 December 1994, Memorial, Vol.4,
Annex 4, p. 25.
130UN General Assembly Resolution A/RES/49/196 of 10 March 1995, para. 4. See also Reply,
para. 10.37.
131
Ibid., para. 17.
132See e.g. UN Securiity Council Resolutioins 757 (1992), 787 i(1992) and 820 (1993i).
133Reply, para. 10.42 i(internal citations oimitted). 27
(b) Failure of the “Serbs to demilitari“ze
2.19 The Reply noted that the rebel Serbs refused to demilitarize, a fact
that is admitted by the Respondent. 134As noted earlier, first, when the JNA fi-
nally withdrew from Croatia towards the end of May 1992, it left behind much
of its weaponry with the Serb TO and police, in plain violation of the Vance
Plan’s provisions for demilitarisation. Second, (also admitted by the Respond-
ent) the TO units that were to be disbanded and demobilized were transferred
135
to “special police” and border units. Thus, while the TOs were disbanded
and technically demobilized, their structure remained intact and available for
fresh mobilization. Recognising the failure to demilitarise and demobilize, the
Security Council expressed concern at the creation of Serb paramilitary forces
in the UNPAs and urged all parties and others concerned to comply with their
136
obligations to withdriaw and disarm under ithe Vance Plan.
2.20 The Respondent’s somewhat contradictory approach to demilitari-
137
zation was dealt with in the Reply. In the Rejoinder it makes one further
observation on the subject. It calls attention to an alleged contradiction in the
Applicant’s approach.i It states:
“It should also be noted at the outset that the Applicant’s claim that
Serbs refused to accept any peace plans and constantly armed them-
selvesfordefenseiscontradictorytoanotherclaimalsoadvancedbythe
Applicant - that Serbs left Croatia according to a prepared plan. In addi-
tiontothat,thisthesiswasalsopresentedbythedefenseintheGotovina
et al case and was turned down by the ICTY Trial Chamber.” 138
It is unclear how these issues are related, or why they should be contradic-
tory. Yes, the Serbs refused to demilitarize, a fact that the Respondent admits.
That has no bearing on the issue of Serbs leaving Croatia in 1995, pursuant to
evacuation plans. This issue, as well as the Gotovina case before the ICTY,
are dealt with in the ifollowing chapters.
2.21 The Respondent however, persists with its contradictory and con-
fusing stand on the alleged demilitarization of the RSK. 139 It admits that the
“Krajina was not fully demilitarized,” 140and virtually every other aspect of the
Vance Plan continued to be flouted. There was no improvement in the situa-
134
The Respondent admiits this in Counter-iMemorial, see inter alia paras 1160, 1122.
135Counter-Memorial, para. 1121.
136
See UN Security Council Resolution 779 (1992), 6 October 1992, preamble and para. 4. See
also Reply, para. 10.i39.
137Reply, para. 10.40 i(internal citations oimitted).
138
Rejoinder, para. 66i7.
139Rejoinder, para. 66i8.
140Ibid. 28
tion and on several occasions the UN found that the rebel Serbs bore the great-
est responsibility for the situation in the UNPAs and the failure of UNPRO-
FOR to fulfil its mandate. 141A February 1993 Report of the Secretary-General
expressly singled out the non-cooperation of the rebel Serb authorities that
“prevented the UNPROFOR from achieving the demilitarizing of the UNPAs
and the disarming of ithe Serb Territorial iDefences and irreguliar forces.” 142
2.22 In yet another example of the Respondent’s misrepresentation and
distortion of the order of events, it states that crimes were committed against
the Serb civilians even after the deployment of the UNPROFOR, referring
to the events in Maslenica, Medak and during Operation Flash. 143 Before ad-
dressing these allegations two points need to be made. Firstly, the allega-
tions are made out of context and the Respondent’s account is inaccurate,
as is clearly set out below. Secondly, and more importantly, the Respondent
appears to have toned down its description of these events. In the Counter-
Memorial the Respondent alleged that the Applicant had, on four occasions
before Storm undertaken “large” military operations against the rebel Serbs
and in so doing halted the alleged progress made at the negotiating table and
on the ground. 144In the Rejoinder its claims appear more modest. It makes
145
no mention of its earlier allegations regarding Miljevci , and its allegations
regarding the events in Maslenica, Medak and during Operation Flash are also
much diminished. The Respondent accuses the Applicant of “serious mischar-
acterizations” with riegard to these evenits. That allegation is basieless.
(c) operation Maslenica “(January 1993)
2.23 In the Reply, the Applicant fully refuted the Respondent’s allegations
regarding Croatia’s so-called “attack” on Maslenica and other locations in
January 1993. 147 In the Rejoinder, the Respondent primarily challenges the
Applicant’s characterisation of this action as achieving a “legitimate humani-
tarian and military objective,” arguing instead that this was an “attack on a
protected zone.” 148
2.24 Once again, the Respondent is silent as to the reason for the Opera-
tion: namely, to re-establish transport and communication links between the
141Reply, paras 10.44-i10.46 (internal citatiions omitted).
142
See Further Report of the Secretary-General pursuant to Security Council Resolution 743
(1992), UN Doc. S/2i5264, 10 February 1i993, paras 12-13.
143Rejoinder, paras 63i9 et seq.
144
Counter-Memorial, piaras 1160, 1162.
14Counter-Memorial,paras1119-1120.Theseweredealtwithin theReply,paras10.22- 10.24.
146Rejoinder, para. 64i1.
147Reply, paras 10.47-i10.51.
148Rejoinder, paras 64i2-643. 29
north and south of Croatia that had been severed by the 1991 occupation by
the JNA and the rebel Serbs. The destruction of the Maslenica Bridge north-
east of the city of Zadar, which was the main land route between northern and
southern Croatia, had left the Dalmatian coast accessible only by ferry. This
situation was untenable in the long run, because the region was severed from
the rest of the country, despite nominally having a land link. The usual land
routes through Bosnia, lika and Dalmatia were controlled by the Serbs both
in Croatia and Bosnia-Herzegovina. iThis forced traffic and commerce to use
ferryboat services and bridges connecting Pag Island and mainland Dalmatia,
which were often affected by bad weather. The Pag Bridge was also damaged
by the JNA airforce in 1991, causing doubts about its long-term use. This was
the only traffic route for the supply of humanitarian and other aid to parts of
Croatia and Bosnia and Herzegovina. In this way, Croatia achieved a legiti-
mate humanitarian and military objective. The Respondent fails to mention
that, shortly before the Operation, the Serb authorities in Knin had rejected
any negotiations on ithe re-establishment iof transport links ini the area.9
2.25 In support of its arguments, the Respondent selectively cites Security
Council Resolution 802 (1993) (which the Applicant had referred to in the Re-
ply).150It excludes those sections of the Resolution that censure FRY/Serbia
and the rebel Serbs,i in particular failing ito state that Securiity Council was:
Deeply concerned also by the lack of cooperation in recent months
by the Serb local authorities in the areas under the protection of
UnPRoFoR control, and by t“hreats to widen the“ conflict,
[…]
3. Demands also that the heavy weapons seized from the Un-
PRoFoR-controlled storage areas be returned immediately to Un-
PRoFoR;
4. Demands that all parties and others concerned comply strict-
ly with the cease-fire arrangements already agreed and cooperate
fully and unconditionally in the implementation of the United Na-
tions peace-keeping plan (S/23280, annex III), including the dis-
banding and demobilization of Serb Territorial Defence units or
other units of simi“lar functions; […];
6. Demands that all parties and others concerned respect fully
the safety of United iNations personnel; [i…];
8. Calls upon all parties and others concerned to cooperate with
UNPROFOR in resolving all remaining issues connected with the
149
Reply, para. 10.48.i
15Reply, para. 10.51.i 30
implementation of the peace-keeping plan, including allowing ci-
vilian traffic freely“ to use the Masleni“ca crossing;
9. Calls again upon all parties and others concerned to cooper-
ate fully with the International Conference on the Former Yugosla-
via and to refrain from any actions or threats which might under-
mine the current efforts aimed at reaching a political settlement
[…] (Emphasis added)
2.26 The Respondent’s other misrepresentations with regard to Maslenica
are noted in the Reply. The Respondent admitted that after these events there
was a remobilization of rebel Serb forces and that they removed stored weap-
151
ons, including heavy weapons, from UN controlled storage areas. As set out
above, the Security Council demanded the immediate return of these weap-
ons. This also rebuts the Respondent’s argument regarding demilitarization by
the rebel Serbs.
2.27 In the following months, the position of the Croats that remained in
the UNPAs worsened and the Serb attitude towards the UNPROFOR “gravely
deteriorated.” 152 There were reports of several incidents including the killing
of at least three UNPROFOR personnel and threats to take hostages or ex-
act revenge on UNPROFOR personnel. 153The Secretary General once again
found that non-cooperation by the rebel Serbs was preventing the success-
ful implementation of UNPROFOR’s mandate and stated that the local Serb
leadership was “repeatedly” told that the “only basis for settlement was their
acceptance of Croatian sovereignty in return for guarantees of their minority
154
rights. They never aiccepted this positioin…”
2.28 Despite this, Croatia continued to hope for a peaceful solution, while
155
recognising that it had the right to establish control over its entire territory.
As stated in the Reply, the use of armed force was not Croatia’s first option.
The Republic of Croatia considered that the UNPROFOR should be given en-
forcement powers to oblige the Serbs to comply with Security Council Reso-
lutions, and to do so with specific objectives against a set timetable, failing
which it would not agree to further extensions of the UNPROFOR’s man-
156
date.
151Counter-Memorial, piaras 1124, 1127.
152
Reply, para. 10.52.i
153Report of the Secretary-General pursuant to Security Council Resolution 815 (1993), UN
Doc. S/25777, 15 Miay 1993, para. 15.
154
Ibid., para. 4.
155Reply, para. 10.54.i
156Report of the Secretary-General pursuant to Security Council Resolution 815 (1993), UN
Doc. S/25777, 15 Miay 1993, para. 19. 31
(d) The Medak Pocke“t (September 1993) “
2.29 In the Counter-Memorial, the Respondent made various allegations
regarding the limited Croatian operations in the Medak Pocket that sought to
eliminate the threat posed to GospiÊ and its environs by Serb shelling, from
the summer of 1991 onwards. 157These were comprehensively refuted in the
Reply. 158As stated there, diuring 1993, the artiillery attacks targetiing civilians,
facilities and infrastructure intensified and their severity and frequency made
it practically impossible to conduct everyday life. These facts are not denied
in the Rejoinder. The Respondent only points to an alleged “contradiction”
stating that while the reason behind the attack was an attempt to stop shelling
GospiÊ from a Serbian stronghold, even after the take-over, GospiÊ remained
159
within the range of the SVK heavy artillery. There is no contradiction here.
The Applicant recognised this in the Reply, but stated that “[a]lthough GospiÊ
remained within the range of the SVK heavy artillery, the operation eliminat-
ed a direct threat to the civilian population and ensured the basic preconditions
for the normalization of life and the functioning of the economy and transport
160
links within a wider airea.”
2.30 In the Counter-Memorial, the Respondent alleged inter alia that the
Croatian “attack” was accompanied by ethnic cleansing, arbitrary execu-
tions and the destruction and damage of certain hamlets. 161The allegations
of ethnic cleansing and arbitrary executions were unsupported by evidence.
The Respondent only put forth the November 1993 Report of the Special
Rapporteur of the Commission on Human Rights which had been super-
ceded by the Final Report of the UN Commission of Experts, on the Medak
Investigation, of 28 December 1994. 162There is no doubt that the Respond-
ent was aware of this Report, but failed to mention it. The Reply set out the
163
findings of this Final Report in some detail. The Respondent appears to
accept the findings of the Final Report, but seems not to have read the Re-
157Counter-Memorial, piaras 1130-1134.
158Reply, paras 10.55-i10.61 (internal footinotes omitted).
159Rejoinder, para. 64i4.
160
Reply, para. 10.57.i
161Counter-Memorial, piara. 1132.
162
Final report of the United Nations Commission of Experts established pursuant to Security
Council Resolution 780 (1992), UN Doc. S/1994/674/Add.2 (Vol. I) Annex VII, Medak Inves-
tigation, 28 Decembeir 1994, Reply, Anneix 126.
163Reply, para. 10.59. The UN Team found for e.g. “no evidence implicating any specific iden-
tifiable individual in the direct planning, instigation, ordering, commission, aiding or abetting
of any of these crimes.”It therefore, concentrated on indirect, i.e. command responsibility. It
found “no convincing general pattern of the deaths occurring in the pocket” and found that the
majority (71%) of the located dead were military personnel. It found that initial postmortem
examinations and examinations conducted by the Serb authorities were “unsatisfactory” and
the conclusions reached were “unreliable.” It also found local witnesses “unreliable” or “con-
tradictory.”(internal citations oimitted). 32
ply. There the Applicant specifically stated that the Report had concluded
that there was “wanton destruction” of property and recommended that two
Croatian officers be charged with war crimes. 164The Respondent merely re-
165
states these finding. The Respondent also accuses the Applicant of having
“forgotten the facts established in judgments rendered by its own courts in
relation to these crimes.” 166This also indicates that the Respondent failed to
read the Reply, which specifically mentioned the proceedings against Gen-
erals Ademi and Norac at the ICTY and before the Croatian Courts, and the
fact that in May 2008, General Norac was sentenced to 7 years for the com-
mission of war crimes. 167
2.31 TheRespondentadmitsthatimmediatelyafterCroatianforceslaunched
the operation in the Medak Pocket Serb forces retaliated by shelling the Croatian
frontline and urban targets, including Karlovac and areas near Zagreb. 168
(3) CONTINUING E FFORTS TO A RRIVE AT A P EACEFUl SOlUTION
2.32 From these events in 1993, the Respondent moves on to Operation
Flash. It makes no response to the Applicant’s detailed narrative on the con-
tinuing efforts to arrive at a peaceful solution through 1993, 1994 and up
169
to May 1995, when Operation Flash was launched. In the Reply, the Ap-
plicant noted how efforts to make peace by Serb politicians were viewed as
170
treason by the rebel Serbs. The Respondent does not challenge this but
nevertheless argues that “evidence shows that negotiations were heading to-
wards a peaceful solution and that there was no need for an attack by Croatia,
because it would have accordingly achieved its goal, which was the reinte-
gration of contentious territories, through peace negotiations.” 171Once again,
no evidence is produced in support of this statement. On the Serbian side it
is plain that there was no intention of peaceful settlement. Moreover, these
were not “contentious territories” as the Respondent argues: they were an
integral part of the territory of Croatia.
2.33 A month after the events in the Medak Pocket, in October 1993,
the Security Council reaffirmed the territorial integrity of Croatia and the
importance of the full and prompt implementation of the peacekeeping plan,
including the provisions for demilitarization of the UNPAs. It called upon
16Reply, para. 10.60.i
16Rejoinder, paras 64i5, 646.
16Rejoinder, para. 64i8.
16Reply para. 10.60.
168
Counter-Memorial, piara. 1130; Reply paria. 10.61.
16Reply, paras 10.62 iet seq.
170
Reply, para. 10.63.i
17Rejoinder, para. 66i6. 33
the signatories of the plan, in particular the FRY (Serbia and Montenegro), to
cooperate in the full implementation, stressing that the first step was restor-
ing the authority of Croatia over the pink zones. 172 In the continued hope of
securing the peaceful integration of these areas, and referring to the to the
Security Council Resolution 871, on 1 November 1993, President Tuman
announced a new peace initiative. He called for a ceasefire agreement and
the normalisation of relations between Zagreb and Knin. He offered the rebel
Serbs in UN protected areas supplies and other forms of aid in the coming
winter months. He offered to pay pensions and establish the Croatian welfare
and health care systems in areas under UN control. The rebel Serbs were
guaranteed full local autonomy (self-rule) in the two districts of Knin and
Glina, where the rebel Serbs had been a majority before the war, and cultural
173
autonomy in the entire territory of Croatia.
2.34 In November 1993, the parties held talks on a ceasefire agreement,
and on economic matters, and in March 1994, a general ceasefire agree-
ment was signed and generally held till May 1995. 174 While the Respond-
ent attempts to portray a picture of continuing progress, this was not the
case, and there is absolutely no contradiction in the Applicant’s case, as
alleged by the Respondent. 175The Applicant admits that the ceasefire held,
however, there was no progress regarding the Economic Agreement, and
more importantly a political settlement. Any expectations for agreement
on issues of mutual economic benefit, followed by talks on a final politi-
cal settlement, were brought to an end in April and May 1994, when the
rebel Serb authorities in Knin issued statements closing the door on po-
litical reconciliation, including announcements of their intention to pursue
full integration with other Serb areas. 176Talks in the summer of 1994 were
cancelled. Negotiations then focused on an economic cooperation agree-
ment, which was signed in December 1994. However, it was soon appar-
ent that the rebel Serbs had no desire to fully implement the Agreement,
instead, seeking closer ties with Serbia and the Republika Srpska. 177It was
in these circumstances that Croatia decided not to agree to an extension of
UNPROFOR’s mandate. 178 Croatia’s decision resulted from the failure of
172Security Council Resolution 871 (1993), UN Doc. S/RES/871, 3 October 1993, paras 3. 4
and 7. See Reply, piara. 10.64.
17See Peace Initiative of the President of the Republic of Croatia, Dr. Franjo Tuman, Zagreb,
1 November 1993, Ainnex 8.
174Reply, para. 10.65.i
175Rejoinder, para. 67i1.
176Reply, para. 10.66.i
177
Reply, paras 10.68-i10.70.
178Reply, paras 10.72 iet seq. 34
UNPROFOR to perform the functions it was tasked with, a fact that the UN
recognised repeatedly. 179
2.35 In any event, in March 1995, Croatia announced its readiness to nego-
tiate a mandate for a new peacekeeping force with the Security Council. Even
at this stage it was hoped that the new UN mandate and the implementation
of the Economic Agreement would lead to the “erosion” of the ‘RSK’ and ul-
timately to the peaceful reintegration of these areas into Croatia. 180However,
this was not to be. i
(4) T he Z-4 P lan and iTs R ejecTion by The Rebel seRbs
2.36 Once again, in an effort to show that Croatia was “not genuine in
its efforts for peace”, the Respondent attempts to manipulate the facts with
regard to the Z-4 Plan. The Reply already set out how the Respondent had
181
contradicted itself regarding the alleged acceptance of the Plan. That ac-
count stands and is not contradicted by the Respondent’s textual manipulation
182
in the Rejoinder. The Z-4 Plan was presented to Croatia and the rebel Serb
leadership on 30 January 1995. 183 Croatia, with some reservations, accepted
the Plan, while the Respondent claims that the rebel Serbs declined to negoti-
ate because of Croatia’s decision not to extend the UNPROFOR’s mandate.
The evidence before the Court tells a different story. The ‘RSK’s’ rejection of
the Z-4 Plan was not prompted by Croatia’s decision not to extend UNPRO-
FOR’s mandate: it was part of the rebel Serb policy to negotiate with Croatia
as representatives of an independent sovereign state, as equals, whereas the
international community recognised that the UNPAs were integral parts of the
territory of Croatia and that Croatia had a right to preserve its territorial integ-
184
rity. This is a clear example of the fact that the Serb rebels had no intention
179Reply, paras 10.74-10.76 (internal citations omitted). See also The United nations and the
Situation in the Former Yugoslavia, Reference Paper, Revision 4, UN, Department of Public
Information, For Information - Not an Official Record, New York, July 1995, 8, which states:
“However, non-cooperation by the local Serb authorities had prevented UNPROFOR from
achieving the demilitarization of the UNPAs and the disarming of the Serb Territorial Defence
and irregular forces in those areas and in the ‘pink zones’. As a result, UNPROFOR had not
been able to establish the conditions of peace and security that would have permitted the volun-
tary return of refugees and displaced persons to their homes in these areas. Nor had it been able
to establish the bordier controls called foir in resolution 769 i(1992)”
180
Reply, para. 10.77.i
181Reply, paras 10.110i - 10.112.
182
Rejoinder, paras 67i3 et seq.
18It inter alia envisaged a high degree of autonomy for the ‘Krajina’ region within Croatia, and
provided that Eastern Slavonia, Baranja, Western Sirmium, and Western Slavonia would be
reincorporated into Croatia with lesser forms of autonomy. It provided for a five-year transition
period for the restoiration of full sovereiignty for Croatia.
18Nikica BariÊ, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia 1990-1995],
Zagreb, 2005, pp. i474-480 cited in thei Reply, para. 10.79.i 35
of seeking a peaceful resolution, and that no option other than independence
was acceptable to them. In the event that they were unable to secure territory,
the rebel Serbs followed a set pattern: they would leave a territory, rather
than accept Croatian sovereignty. A similar pattern was followed in Western
Slavonia after Flash, in the ‘Krajina’ afteri Storm and in Bosnia.
2.37 In the Reply, the Applicant stated that on 8 February 1995, the Assem-
blyofthe‘RSK’decidedtopostponetheimplementationoftheeconomicagree-
ment. 185 This affected further negotiations on a political agreement and the of-
ficials of the ‘RSK’ refused to accept the draft ‘Z-4 Plan’ until the extension of
186
UNPROFOR’s mandate had been assured. The Respondent admits as much.
The Respondent’s other allegations in this regard have already been refuted. 187
2.38 The non-renewal of UNPROFOR’s mandate was merely a pretext to
avoid implementing the Economic Agreement and negotiating for a peaceful
settlement. This was confirmed when Croatia agreed to the United Nations
Confidence Restoration Operation (“UNCRO”) but the rebel Serbs failed to
initiate negotiations on the Z-4 Plan instead expressing dissatisfaction with
188
the new mandate. This was recognised by the ICTY Trial Chamber in Mar-
tiÊ which stated inter alia that there was “evidence that Milan MartiÊ acted
under the instructioin of Slobodan MiloπeviiÊ to reject the Z-i4 Plan.” 189
190
2.39 UNCRO was established on 31 March 1995. At a meeting of their
“Assembly”, at Borovo Selo on 20 May 1995, the Serb population in the
‘RSK’ rejected the name UNCRO on the grounds that it prejudged a political
solution, and rejected the operative provisions of Security Council Resolution
981 (1995) (which treated the rebel Serb-held territories as part of Croatia and
established UNCRO’s mandate). The “Assembly” expressed its readiness for
further cooperation with the UN in the search for a peaceful and just solution
to the conflict “based on principles of impartiality and equal honouring of the
191
sovereign rights of ithe Serb nation in tihe Republic of Serb iKrajina.”
185Reply, para. 10.80.i
186
Rejoinder, para. 67i3.
187Reply, paras 10.79 iet seq.
188
Reply, para. 10.82, citing Nikica BariÊ, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebel-
lion in Croatia 1990-i1995], Zagreb, 2005i, pp. 489-490.
189MartiÊ, para. 157, states: i
“On 30 January 1995, Milan MartiÊ, as President of the RSK, refused to accept the Z-4
Plan, as Croatia had announced that it would not accept an extension of UNPROFOR’s
mandate. The mandate was eventually extended in March 1995 and focused on reconstruc-
tion and cooperation, however Milan MartiÊ continued to refuse to negotiate the Z-4 Plan
because the reshapedi UNPROFOR, now calleid UNCRO, was not a iprotection force.” i
190
Security Council Resolution 981 of 31 March 1995. It was deployed pursuant to Security
Council Resolution 9i90 of 28 April 1995.i
191Report of the Secretary-General submitted pursuant to Security Council Resolution 994
(1995), 9 June 1995i. UN Doc. S/1995/4i67, para. 18 cited iin the Reply, para. 1i0.84. 36
SECTION III: OPERATION FLASH (MAY 1995) AND AfTER
2.40 The Reply set out a detailed and chronological account of the events
leading up to Operation Flash, and the manner in which it was conducted. 192
Once again, the Respondent is silent regarding the reasons for Flash and con-
tinues to misrepresent the manner in which Operation Flash was conducted. It
appearshowevertohaveacceptedtheApplicant’saccountofhowtherebelSerbs
thwarted all initiatives to arrive at any peaceful settlement; failed to comply with
the Vance Plan despite several opportunities to do so; continued to seek unifica-
tionwithSerbiaandtheRepublikaSrpskaandissuedordersforcombatreadiness
193
and reinforcement. It was in this context that Croatia decided to take steps, by
military means, to restore its authority over Western Slavonia.
2.41 In the Counter-Memorial, the Respondent quoted selectively from
various Reports of the Secretary General and statements of the President of
the Security Council. 194In the Rejoinder it now bases its case on wholly new
evidence. It offers 7 new witness statements to support its allegation that Flash
195
was the “most notorious criminal action” prior to Storm. It is unable to of-
fer any independent 3 party evidence in support of this allegation, as there is
none. While mention has already been made of these new materials, some addi-
tional comments are called for. First, the context in which these witness state-
ments were made is unclear. It appears that they were not made in the context
of an actual legal proceeding, but solely for the purpose of producing “new”
evidence. Second, five of the seven statements were made before the same
judge in Banja luka (Bosnia). Third, all the statements made before the Judge
in Banja luka follow the same narrative pattern in depicting events. Fourth,
the Witness statement of I.B., 196 who was present in Western Slavonia
through the years of occupation provides a firsthand account of the events in
the OkuËani area and directly refutes at least two of the statements presented
by the Respondent (Duπan Boπnjak and Milena MilojeviÊ). In any event, as
these events preceded Storm, they are irrelevant to the case before the Court.
Finally, it is noteworthy that through the Rejoinder, including in its description
of Flash, the Respondent uses individual statements, taken out of context and
reproduces them at length only for purposes of producing “new” evidence. It
gives them great attention even if they can be easily refuted, such as the state-
ment that “the road from OkuËani to the bridge on the Sava River was all cov-
ered in blood”. Similarly it now refers to Flash as the “most notorious criminal
action” prior to Storm when several international observers commended the
192Reply, paras 10.85 et seq.
193Reply, para. 10.85.
194
Reply, para. 10.86 citing the Counter-Memorial, paras 1142 et seq.
195Rejoinder, paras 651 et seq.
196 at
Record of the Statement of I.B., 20 April 2012, Annex 9. His first statement is set out
Reply, Annex 142. 37
conduct of the Operation. This only serves to further undermine the Respond-
ent’s claims and credibility, and the evidence it presents in support.
2.42 The Respondent’s reliance on the Report on the Causes and Manner
197
of the Fall of Western Slavonia, produced by rebel Serbs on 11 July 1995
does not help the Respondent at all. 198This document was extensively referred
to by the Applicant, and provides a chronological outline of attempts by both
Croatia and UNCRO to open the highway through Western Slavonia through
peaceful means. It states inter alia that instead of reopening the motorway as
instructed by the Croatian Ministry of Internal Affairs, the SVK Main Staff
ordered that combat readiness be raised to a level allowing quick mobilisation
which was conducted ibetween 28 and 30 Aipril, with 95-100% siuccess.
2.43 The Reply also sets out that Flash, which began on 1 May 1995, was
effectively over in 30 hours and subsequently the Secretary General referred
to the “evident efforts of the Croatian Government to achieve high stand-
ards of respect for the Serbs’ human rights. 199In contrast, the rebel Serbs re-
sponded to Operation Flash by firing missiles at the capital of Croatia, Zagreb
deliberately targeting civilians and shelling Karlovac and Sisak on 2 and 3
200
May resulting in 7 deaths and injuring over 200 civilians. It also admits that
during this time, rebel Serbs removed heavy weapons from UN storage de-
pots. 201 In the face of these facts the Respondent argues that there was a “real
possibility” of progress, but Croatia provoked the conflict in order to cleanse
the area of Serbs. 202 The Respondent cannot however produce any evidence
in support of this cilaim.
2.44 Again, the Respondent alleges that the Serbs fleeing as a result of
203
Flash were targeted by Croatian forces. In response to the Applicant’s criti-
cism that these allegations were unsupported, the Respondent now relies on
the new witness statements which have already been referred to. The Ap-
197Reply, Annex 140 (Report on the Causes and Manner of the Fall of Western Slavonia, pro-
duced by rebel Serbs on 11 July 1995.) Some of the Reports very instructive findings are set
out in the Reply, paira. 10.92.
198Rejoinder, para. 65i8.
199
See Report of the Secretary-General, dated 9 June 1995 (S/1995/467), para. 15 cited in the
Reply, para. 10.91
200Counter-Memorial, para. 1142. See also Reply, para. 10.93 which sets out that MartiÊ was
directly responsible for these attacks and refers to the MartiÊ decision at the ICTY, which states
inter alia that he admitted to it on television and that spoke of “massive rocket attacks on Za-
greb which would leavie 100,000 people deiad.”
201Rejoinder, para. 659. The removal of weapons and the rebel Serb’s obstruction of the move-
ment of the peacekeepers is referred to in the Report of the Secretary-General pursuant to Secu-
rity Council Resolutiion 994 (1995), 9 Juine 1995, UN Doc. Si/1995/467, para. 7.i
202
Rejoinder, para 663i.
203Rejoinder, paras 65i2 et seq. 38
plicant responded to allegations regarding the departure of the Serbs in the
Reply, and those submissions are maintained. 204The Serb population did not
leave because they were driven out by the Croatian forces. Their “exodus”
was planned by the rebel Serb leadership. This fact is confirmed by the rebel
Serb commission charged with establishing responsibility for the fall of West-
205
ern Slavonia that states inter alia how some civilians and soldiers began
withdrawing even before the launch of the offensive. It specifically mentions
“evacuation orders” made by the SVK commanders; the disruptive nature of
the evacuation process and the fact that soldiers and civilians were evacuating
together. 206 A similar pattern wasi observed after Opeiration Storm.
2.45 Contrary to the Respondent’s allegation that the Serbs that remained
in Western Slavonia were persecuted, 207in a Report of 9 June 1995, the UN
Secretary-General noted that the Croatian Government sought to encourage
SerbstoremainintheSectorandissuedpersonaldocuments,includingcitizen-
ship papers and passports, to those who applied for them. 208 However, while
Croatia was encouraging the Serbs to stay, the rebel Serb leaders were encour-
aging them to leave, and they put enormous pressure on the UN authorities to
facilitate the departure of the Serbs from the area. 209 A significant contributory
factor for the departure of the Serbs during Flash and later Storm was the years
of propaganda and indoctrination by the FRY/rebel Serbs that the Croatian
Government was undemocratic and genocidal, that Croats were ‘Ustashe’ and
that it was impossible for the Serbs to live in Croatia, under Croatian authority.
The highest officials in the ‘RSK’ made statements to this effect. For example
in February 1995, Milan MartiÊ, the President of the ‘RSK’ stated:
“Can we to agree to our own deaths? life in Croatia would be worse
than any death. life in Croatia - wouldi that be any life?” 210
After Flash, Serbs in the rebel areas voiced their anger at the Croats to UN
representatives, stating that “they would rather die of hunger than talk and
211
trade with Croats now”. Serbs who chose to remain in Croatia after Opera-
tion Flash were seen as traitoirs.
204Reply, paras 10.94 iet seq.
205
See RSK, Report of the Commission Charged with Establishing Responsibility of the Mili-
tary Organisation for the Fall of Western Slavonia, 13 July 1995, Reply, Annex 141. See also
the Report on the Causes and Manner of the Fall of Western Slavonia, produced by rebel Serbs
on 11 July 1995, Reiply, Annex 140.
206
Reply, para. 10.97i (internal citations iomitted).
207Rejoinder, para. 65i7.
208
Report of the Secrietary-General of 9 Jiune 1995, para. 14 icited in the Reply, ipara. 10.98.
209Reply, para.10.98 (iinternal citation omitited).
210
Reply, Annex 146 (RSK, Minutes of the RSK Assembly, 8 February 1995). See also para.
3.50, infra.
211See RSK, Ministry of the Interior, State Security Department, Doc. No. 08/2-0-1224/95,
Knin, 8 June 1995, iwith excerpt from thie Weekly Civilian Affaiirs Report, Annex 1i0. 39
2.46 Finally, it is worth mentioning again that a comprehensive ICTY in-
vestigation of Operation Flash did not result in any charges at all with regard
to the conduct of tihis operation.
2.47 In a Report after Flash, the UN Secretary-General noted that the rebel
Serbs were in contravention of the cease-fire agreement and had placed sever-
212
al preconditions on meeting with the Croatian military commander. He also
noted that the “moves by the Krajina Serb leadership to establish a union with
the Bosnian Serbs makes it difficult to stabilize the military situation. While
the unification of two self-proclaimed and unrecognised entities would have
no international legal validity, senior Croatian Government officials have ex-
pressed concern about the effect of such a move on the implementation of
the economic agreement of 2 December 1994 … and the commencement of
213
political negotiationsi.”
2.48 Despite these facts the Respondent argues that it was “Croatia that
214
was not genuine in its alleged peaceful efforts”. It cites Ambassador Gal-
braith’s testimony at the ICTY and the UN Secretary General’s Report of
215 216
3 August 1995. These citations merely strengthen Croatia’s case. The
Respondent also argues that both MrkπiÊ’s testimony in Gotovina and his or-
der of 1 June 1995 show that he wanted to accept a peaceful solution. 217The
record shows otherwise. In fact MrkπiÊ stated that his task was to reorganize
the SVK, so that by October 1995, “[w]e would have been able to inflict such
losses as would have proved unbearable for the Republic of Croatia. They
would have to give up on the idea of an attack and opt for a peace solution.” 218
It is unclear how the Respondent sees this statement as proof of the fact that
the rebel Serbs wantied peace.
(5) c onTinuing FailuRe oF Peace iniTiaTives aFTeR Flash : The n egoTiaTions
in g eneva
2.49 The Reply set out an account of the events in the days before Storm.
That account stands. It showed how the contents of a letter from the Secre-
212
See the Report of ithe Secretary-Generial of 9 June 1995 (Si/1995/467), para. 12i.
21Ibid.
214
Rejoinder, p. 259.i
21Rejoinder, paras 68i0-681.
216
Though Galbraith states that he believed that Croatia would take over the ‘Krajina’ in No-
vember 2004, this did not happen and Croatia continued to negotiate in the hope of a peaceful
solution. The Secretary General’s Report supports Croatia’s account of the happenings in Bos-
nia over that summer, viz that the rebel Serbs were assisting Serb forces in BH in contravention
of several UN Resoluitions. See Reply, piaras 11.07 et seq.
217
Rejoinder, para. 67i2 and MrkπiÊ’s Ordeir of 1 June 1995, Rieply, Annex 152.
21Gotovina Trial Transcript, 18i June 2009, p. 188i29:12-23, MrkπiÊ Teistimony. 40
tary General to the President of the Security Council, did not advance the
219
Respondent’s case that Croatia wanted war at any cost. On the contrary it
clearly indicated that Croatia was willing to negotiate. Once again, the Re-
spondent turns to the letter and alleges that the Applicant “misinterprets [its]
220
substance.” A plain reading of the letter does not support the Respondent’s
argument. It reveals that the rebel Serb delegation continued to prevaricate. 221
This is clear from MaritiÊ’s comments on 2 Auguist 1995, where he sitated:
“Croatia will most likely conduct new aggression towards the RSK.
We attempted to delay this by agreements and negotiations in order
for it to be avoided. However, their position is precisely to gain sup-
port for a military solution in order to stabilize themselves within,
and you know how much instability they are suffering. But if we
succeed, and I sincerely hope this will be the case, and we wait “as a
host” and defeat them, then our recognition will be truly imminent.
The RSK would then become the utmost reality, it would be realistic
that we be recognized worldwide and that Croatia be defeated, they
would be forced to shake our hands and say, the RSK exists.” 222(em-
phasis added)
2.50 The letter clearly indicates that the Serbs continued to stall negotia-
tions.223 The Serb offer to accept the ICFY proposals “as a useful basis for
progress, subject to clearance by its political leadership” was yet another
time wasting tactic. According to the Respondent, Mr. Akashi’s statement to
the ICTY in the Gotovina case provides the “proper context in light of which
the negotiations have to be assessed”, and that Mr. Akashi confirmed that
towards the end of the meeting MartiÊ accepted the agreement. The Respond-
224
ent set out an excerpt from the testimony that allegedly supports this. This
is a blatant manipulation of Akashi’s testimony. Akashi testified that MartiÊ
and the Krajina Serb leadership initially claimed to agree to Akashi’s pro-
posal, but towards the end of the meeting MartiÊ changed his mind. This is
219
Reply, paras 11.32 et seq. See letter dated 7 August 1995 from the Secretary-General ad-
dressed to the Presiident of the Securitiy Council, UN Doc. iS/1995/666, Reply, iAnnex 151.
220Rejoinder, para. 67i4.
221
Reply, paras 11.32-i11.35.
222See Milan MartiÊ speiaking in Ravni Kotari,i 2 August 1995, Reiply, Annex 161.
223
letter dated 7 August 1995 from the Secretary-General addressed to the President of the
Security Council, UNi Doc. S/1995/666, iAnnex 151, para. 5 istates:
“After a series of bilateral meetings, [Mr Stoltenberg] the Co-Chairman presented to the
two delegations a list of seven points covering, inter alia, the reopening of the oil pipeline,
the reopening of the Zagreb-Knin-Split railway and negotiations on a final settlement on
the basis of the ‘Zagreb-4’ plan. The Croatian Serb delegation was inclined to accept the
paper as a useful basis for progress, subject to clearance by its political leadership…”
(emphasis added)
224Rejoinder, para. 67i6. 41
225
clear from Akashi’s earlier testimony. Furthermore, Akashi informed Kofi
Annan, that MartiÊ had, in fact, refused to sign the agreement. 226Therefore, it
is clear that MartiÊ did not agree to Akashi’s proposal. Also, while BabiÊ was
“accepting” the Z-4 plan (as the Respondent argues) 227, MartiÊ was instruct-
ing his chief negotiator in Geneva, PrijiÊ, that they could not accept Z-4 and
to delay any agreement with Croatia, with political talks after the month of
August. 228
2.51 As these “peace negotiations” in Geneva were underway, the Serb
forces were preparing an offensive. By 3 August, the Serb leadership knew
that Operation Storm would commence the next day, yet they decided to
reject peaceful reintegration, and to rely on the international community
229
to pressure Croatia into ending Operation Storm. Despite these facts, the
Respondent continues to allege that Croatia did not want peace as its “con-
cealed intent was not to allow the Serb population to remain on its terri-
tory.” 230
2.52 Despite its convoluted arguments in this regard, the fundamental facts
remain unchanged, andi are, in substance, iadmitted by the Respiondent.
§ The Respondent admits that the UNPROFOR’s difficulties in ful-
filling its mandate from the very beginning of its deployment in
1992, were “to a coinsiderable extent duie to the attitude ofi the RSK
authorities” 231
225Gotovina Trial Transcript, 16i September 2009, pi. 21753-21754. Akasihi stated:
Q: But my question for you is: Based on the portion of the cable I wrote to you and based
on the video where you stated that you received the agreement of Mr. MartiÊ and others,
did you, in fact, consider that you had reached such agreement with the Krajina leadership,
despite the behaviouri of Mr. MartiÊ and Mir. Macura at the meeiting?
A: I believe that Mr. MartiÊ agreed with us to observe these six points during our meeting.
However, as I told you yesterday and is described in my cable to new York, he changed
-- he apparently changed his mind, and he decided to backtrack on that, and we were ex-
tremely disappointed and disturbed by his sudden change of attitude. I think his colleagues
who are with him were also taken by surprise, and, therefore, we wanted to tell the entire
press that there was an agreement at some point in time, and then there were subsequent
change of mind by Mr. MartiÊ. So I wanted everybody to know that there was agreement;
then by some emotional turn of events, only one person in the Knin leadership felt that he
could not honour it,i he did not want to ihonour it. (emphasis iadded)
226UN, Coded Cable froim Akashi to Kofi Annain, Meeting in Knin, i1 August 1995, Anniex 11.
227Rejoinder, para. 67i5.
228Reply, para. 10. 112. See also Excerpts of Intercepts between Milan MartiÊ and Ilija Pri-
jiÊ, Nos. 65 (3 August 1995, 14:42), Reply, Annex 163. Similarly, Duπan Viro, “Slobodan
MiloπeviÊ: The Anatomiy of Crime”, Profil, iZagreb, 2007, pp. 3i70-378, Reply, Anneix 164.
229Reply, para. 11.36.i
230
Rejoinder, para. 67i7.
231Counter-Memorial, piara. 1160. 42
§ The Respondent admits that of these difficulties, “of particular im-
232
portance was the RSK’s failure to fully demilitarize the UNPAs” ;
and that “Krajina was inot fully demilitarizeid”233
§ The Respondent admits that until 1995 the ‘RSK’ refused “to con-
sider options involving reintegration of [UNPAs] into Croatia, de-
spite the clear commitment of the Security Council that Croatia’s
234
sovereignty and teriritorial integrity shoiuld be respected.”
2.53 Despite these admissions, the Respondent continues to make futile
arguments that “negotiations were heading towards a peaceful solution and
235
that there was no need for an attack by Croatia” ;that there was “progress
between the parties” 236(though at para 677 they also admit to the “failure
of peac237egotiations”) and that Croatia was “not genuine” in its efforts for
peace. Once again, these allegations are unsubstantiated and contradictory.
They ignore four years of diplomatic actions and negotiations that ultimately
failed. They also ignore the attitude of the rebel Serbs in these negotiations.
This attitude was exemplified by a representative in the “RSK” Assembly
from Daruvar, who alleged that Veljko Dæakula (then Deputy Prime Minister
of the “RSK” government and president of the “Municipal District of Western
Slavonia”) had committed high treason by signing the Daruvar Agreement on
peaceful settlement in Eastern Slavonia. He echoed the prevailing position
of a vast majority of the rebel Serbs, when he stated that that he did not want
autonomy and local self-government, that he could have had this before the
war as well but had not wanted this. Referring to the Daruvar Agreement he
stated: “This territory is now held by the Ustashas, people want to return but
not under the Ustasiha rule - never!” 238
2.54 During this time Knin continued to seek closer ties with Serbia and
the Republika Srpska and continued to use Croatian territory to launch attacks
on the UN safe haven of BihaÊ in Bosnia in violation of UN Security Council
resolutions. This is borne out by the record and not denied by the Respondent.
Even at this stage, on 17 July 1995, in a meeting with senior Croatian leaders,
President Tuman stated that Croatia would not launch a military operation
against the ‘Krajina’ Serbs until the end of the UNCRO mandate, and only if
the UN operation resulted in a failure would Croatia opt for military action.
He stated:
23Ibid.
233
Rejoinder, para. 66i8.
23Counter-Memorial, piara. 1160.
23Rejoinder, para. 66i6.
23Rejoinder, para. 25i5.
23Rejoinder, para. 25i9.
238
Reply, para. 10.63,i footnote 133. 43
“In these circumstances, we shall not undertake any operations on
Croatian soil until the end of the UNCRO mandate. However, it has
to be stressed that in a political sense, particularly in military publi-
cations, and also in public, that we demand that UNCRO implement
its actions, implement its mandate, in order to create an atmosphere,
a climate in which the international community can then accept with
an understanding what we will have to undertake, if we do not reach 239
a peaceful solution wiith the help of Europie and the world as iti is.”
2.55 As a sovereign state that found its territory subject to rebel control,
Croatia took the necessary lawful measures to regain control over its own ter-
ritory through Operaition Storm.
23Minutes of the meeting of the President of the Republic of Croatia, Dr Franjo Tuman, with
a delegation from the Ministry of Defence and senior military officials, held on 17 July 1995 in
Brioni, available at: hittp://bit.ly/OB8Go5i. 44
CHAPTER 3
OPERATION STORM
INTRODUCTION
3.1 As noted in Croatia’s Reply, Operation Storm was a military and po-
lice operation aimed at regaining territory that had been illegally occupied by
the rebel Serbs (directed, commanded, controlled and provided with substan-
tial assistance or support by FRY/Serbia) in 1991. It was conducted after 4
years of unsuccessful negotiation for a peaceful settlement, under the auspices
of the UN and other international agencies. Despite every effort, the rebel
Serbs (together with FRY/Serbia) refused to consider options involving re-
integration of these territories into Croatia, despite the clear commitment of
the Security Council that Croatia’s sovereignty and territorial integrity should
be respected. 240 Despite several opportunities they continued to delay any
meaningful political dialogue, let alone settlement. By 1995 the UN recog-
nised that it had failed in its mandate for which it primarily blamed the rebel
Serbs. 241During this time the rebel Serbs sought unification with Serbia and
the Republika Srpska in Bosnia and Herzegovina (‘BH’), and used Croatian
territory to launch attacks into neighbouring BH in flagrant violation of nu-
merous Security Council Resolutions. The Respondent does not dispute this.
last ditch efforts to negotiate a peaceful settlement failed, and on 4 August
1995, Croatia launcheid Operation Storm.
3.2 OperationStormwasnota“brutalattack”onthe‘Krajina’withthepur-
pose of “entirely eliminating Serb life in that territory” as the Respondent alleg-
es.242Its aim was not to drive out Serbs who had been resident in the region “as
part of a centuries-old community” as alleged. 243This claim, and the claims that
the Applicant carried out forcible displacement, mass killings, indiscriminate
shelling, plunder and destruction of Serb property are entirely without founda-
tion. The Applicant does not accept that some of these acts are, as a matter of
law,capableofamountingtogenocidalacts:thisissueisaddressedinChapter4.
Inanyevent,whilecharacterisedsomewhatdifferentlyintheCounter-Memorial,
each one of these allegations were comprehensively refuted in the Reply.
24The Respondent admiits this in para. 116i0 of its Counter-Meimorial.
241
UNPROFOR had difficulties in fulfilling its mandate from the very beginning of its deploy-
ment and Serbia admits that this was “to a considerable extent due to the attitude of the RSK
authorities.” Serbia also admits that it refused “to consider options involving reintegration of
[UNPAs] into Croatia, despite the clear commitment of the Security Council that Croatia’s
sovereignty and teriritorial integrity shoiuld be respected.” iSee Counter-Memoriail, para. 1160.
24Rejoinder, para. 68i8.
243
Ibid. 45
3.3 Once again, the Respondent attempts to define the ‘Krajina’ as differ-
ent and separate from the rest of Croatia. It was not a “distinct geographically
located community” and all the Serbs resident in the area in 1995 were not
“part of a centuries-old community.” 244 This issue has been dealt with ear-
lier , and will be touchedi upon in the followinig Chapter.
3.4 While it is a fact that a number of Serbs left the area, before, during
or after Storm, this departure occurred for a variety of reasons, including an
anti-Croatian propaganda induced belief that Serbs could not live with Croats
or under Croatian authority. Others fled because they were made to flee by
the rebel Serb forces. They were not “driven” from the area and there was no
“forcible displacement.” There was no “indiscriminate shelling” of towns and
villages; no targeting of those who stayed and no policy of imposing barriers
to the return of the Serb refugees. The Applicant took measures to prevent un-
lawful acts before, during and after Storm, including investigations and legal
proceedings to puniish individual perpetriators of such acts. i
3.5 The Applicant’s response to Serbia’s allegations regarding Operation
Storm is as follows:
Section I responds to Serbia’s allegations regarding the planning and
preparation for the liberation of the occupied territories, in particular
the allegation that the minutes of the meeting at Brioni “directly prove
246
the dolus specialis of the crime of genocide.”
Section II responds to the allegation that the Applicant committed
genocide through Operation Storm and thereafter. As set out in the
Reply, there was (1) no “deliberate indiscriminate” shelling; (2) no
forcibleexpulsionoftheSerbs;(3)notargetingofthosefleeingandno
“systematic killing”; and (4) no imposition of barriers to their return.
244Rejoinder, para. 69i0.
245Reply, para. 10.10 that states inter alia that no region called the “Krajina” ever existed in the
territory of Croatia. From a historical and geographical perspective, Vojna Krajina (Military
Krajina) was the border separating the Hapsburg and Ottoman Empires and was spread over
a considerably larger area than the rebel Serb occupied territories, and the inhabitants of the
region were both Serbs and Croats. Similarly, throughout history and more recently, Serbs lived
and worked in other areas in Croatia, and numerous Croatian citizens, representing different
ethnicities, lived in Krajina. According to the last census conducted in Yugoslavia in 1991, the
areas that later came to be occupied and held by the rebel Serbs and the JNA (the area of the
‘RSK’) were inhabited by 287,830 Serbs (52.4% of the population). The rest of the population
was made up of Croatis and people of otheir ethnicities. later, as a result of ithe Serb aggression i
in 1991 a majority of the Croats fled from these areas and the population demographic changed.
It is noteworthy that according to the census conducted by the National Institute of Statistics of
the Republic of Croatiia, on 31 March 1991i, there were more ciitizens of Serb natioinality living
in Zagreb than in Kniin. A map of the vojna Krajina is at Reply, Annex i147.
246
See e.g. Rejoinderi, para. 692. 46
* * *
3.6 Before proceeding to Section I, two preliminary comments are re-
quired. The first pertains to the use of evidence and the second to the notewor-
thy omissions/admissions made by the Respondent.
3.7 The introductory chapter has made some observations on the Re-
spondent’s use of evidence. A particularly notable feature is the Respond-
ent’s new evidence, including 15 witness statements from Serbian and Bos-
nian domestic Courts. 247These appear to have been submitted in response
to the Applicant’s criticism of the Respondent’s reliance on the discredited
veritas Report and the flawed CHC Report. 248 Another feature of some
note is the Respondent’s insistence on citing witness testimony from the
Gotovina trial, rather than relying on the judgment. There are examples
of testimony being discredited during cross-examination and subsequently
not specifically relied upon by the Trial Chamber, such that its accuracy is
249
questionable and the Respondent’s reliance upon it is problematic. It is
submitted that the Court must exercise much caution when relying on tes-
timony.
3.8 The second issue of some significance is that the Respondent ap-
pears to have accepted the Applicant’s account of various matters as set out
in the Reply. The Respondent has not challenged the Applicant’s account of
the military actions in Bosnia over the summer of 1995, where the Respond-
ent and the ‘RSK’ were acting in clear contravention of the directions of the
UN; the political and military developments in the ‘RSK’ and the continuing
250
pursuit of a state for all Serbs.
SECTION I: PLANNING fOR THE LIBERATION Of OCCUPIED
TERRITORY
3.9 The Applicant set out the context in which the Brioni meeting of 31
July 1995 was held, its purpose and its participants. 251The Respondent claims
that the attitude of the Croatian authorities towards the Serbian population
247
Rejoinder, para. 582.
248As to the flaws in the CHC Report see Chapter 1, para. 1.35.
249An example of this can be seen with respect to the evidence of John Hill cited by the Re-
spondents at Rejoinder, para. 701. Hill’s testimony regarding his interaction with Major I.J, a
Croatian military police commander was refuted by Major I.J., who also testified at the Trial
that he could not speak English and therefore could not communicate properly. See trial
transcript, pages 27517-27518). See also Reply, para. 2.33 which deals with reliance on the
testimony of witnesses generally.
250Reply, paras 11.07-11.28.
251
Reply, paras 11.40 et seq. 47
“crystallized into genocidal intent at the time of operation Storm” and that
252
this is evident from the Brioni transcript. In the Rejoinder it states that these
minutes directly proive the “dolus specialis of the crime of genoicide.” 253
3.10 Two remarks are called for regarding the transcript. Firstly, the tran-
script of the Brioni minutes is the sole evidence the Respondent relies upon
and this is the translation of a transcription made from a tape of the meeting. 254
At the Gotovina et al Trial, no participant confirmed it. Although RajËiÊ, a
prosecution witness, confirmed that he attended the meeting, he disputed that
it was an accurate reicord. 255
3.11 Secondly, while the Respondent claims that the Applicant does not
deny the “accuracy” of the Transcript, 256this is not entirely true. Accuracy,
authenticity and reliability are all different issues, though they may overlap.
Annex 52 may well be authentic transcript of a genuine recording, however
the Applicant places on record its concerns regarding putting too much em-
phasis on it. Briefly ithese are as follows:i
i. There are several gaps in the recording. This is clear from the
annexed document. These gaps are indicated by ellipses where
whole parts of speeches may not have been recorded. There are
also other markings on it - several markings such as (“unclear”),
(“Several voices heard simultaneously”), (“papers being shuf-
fled”), (“Intermingling of voices”) and so on that show that the
recording from which the transcript was made was far from a
complete and accuratie recording.
ii. The transcript doesn’t provide any indication of the general mood
of the meeting, its (in)formality, whether anything said was said
sardonically or ironically. Things may have been added, or lost
in translation, including nuances and idiomatic expressions that
are sometimes incapable of direct translation. In short, the Court
has no evidence of the myriad, nonverbal and situational factors
252
Counter-Memorial, piara. 1194.
253Rejoinder, para. 69i2.
254
Counter-Memorial, Ainnex 52.
255The Trial Chamber in Gotovina noted that RajËiÊ commented on the Brioni transcript, Goto-
vina TJ, para. 1985. In ihis testimony (T1659i6), he stated:
“First of all Mr Russo, this body of text that we see does not correspond, neither in its for-
mat, nor in its content, to - with the meeting I attended on the 31st of July at Brioni. If you
wish our communication to continue along these lines, then I would have to read the whole
text, but I believe I can say with full responsibility that this piece of text I’ve read does not
correspond, neither in terms of format, nor in terms of content, with the meeting I attended
and the way developeid.”
256Rejoinder, para. 69i3. 48
which would provide vital context to what was said and its sig-
nificance.
iii. Issues with regard to the quality of the translation were also noted
by the Trial Chamber.i 257
(1) T he M eeTing aT b Rioni, 31 july 1995
3.12 As set out in the Reply, on 31 July 1995, President Tuman met with
senior military officials at Brioni to consider military options for re-taking
Croatian territory in the event that the Serbs refused to accept peaceful reinte-
gration. The participants at the meeting were not discussing plans to “re-con-
quer the territory of the [RSK], i.e. the protected areas of UN Sectors South
and North” as the Respondent alleges. 258Firstly, Croatia was seeking to liber-
ate territory that had been occupied for nearly 4 years, a fact recognised by the
international community and secondly in seeking to do so it was not “recon-
quering… protected areas.” By July 1995, the UNPROFOR had been replaced
with the UNCRO, and its mandate and functions differed. The UNCRO was
an interim arrangement to create the conditions that would facilitate a negoti-
ated settlement consistent with the territorial integrity of Croatia and which
would guarantee the security and rights of all communities living in Croatia.
In fact, by that time the so-called “protected areas” were referred to as “former
Sectors North and Siouth.”
3.13 The Applicant reiterates and maintains all the submissions it made
with regard to the Brioni Minutes in its Reply. 259The Brioni Meeting is the
sole basis for the Respondent’s conclusion that an alleged “criminal goal”
came into being by that date. Absent any such criminal goal at the Brioni
Meeting, there is noi foundation whatsoeveir for the Respondenit’s claim.
3.14 Yet again, the Respondent claims that President Tuman shared a
“criminalgoal”withhistopmilitaryleadershipatBrioni,thatthe“Serbswould
to all practical purposes disappear.” 260 In doing so, the Respondent, continues
to mischaracterise a statement of the President. In the Counter-Memorial, the
Respondent had repeated this alleged goal of making the Serbs “disappear” no
less than 18 times. 261It is the same in the Rejoinder.262As stated earlier, a con-
textual examination of what the President said made it clear that his reference
25See e.g. Gotovina TJ, para. 1994.
258
Rejoinder, para. 69i5.
25Reply, paras 11.40-i11.52, see particulairly 11.42.
260
Rejoinder, para. 69i5.
261See e.g. Counter-Memorial, paras 1197, 1198, 1237, 1328, 1329, 1331, 1334, 1353, 1386,
1397, 1416, 1421 (irepeated twice), 142i2, 1425, 1431, 144i7 (twice), 1462 and i1467.
262
Rejoinder, paras 34i8, 695-699, 702, 7i03, 712, 714, 717,i 728, 761, 779, 78i4, 829. 49
to “Serbs” was a reference to “Serbian forces”, not Serb civilians. This was
also clear from the use of the word “capitulate”which indicated that the state-
ment referred to the capitulation of the Serbian forces, not Serb civilians. 263
This interpretation has been accepted by the Trial Chamber in the Gotovina
case which found that:i
“When read in its context, the Trial Chamber considers that this par-
ticular statement focused mainly on the Serb military forces, rather
than the Serb civiliani population.” 264
3.15 There is also nothing sinister or criminal about President Tuman’s
other statement, referred to as a “convincing example” of his alleged disre-
gard for Serb civilians. 265A reading of the Transcript shows, again, how the
Respondent is selective in its quotation. His statement related to a discussion
on the impact of evacuations on the morale of SVK forces and avoidance of a
“bloody last stand.” 266There was no suggestion that beyond leaving a way out,
HV forces should cause a Serb departure through the commission of crimes.
3.16 The Respondent states that the events that followed Brioni confirmed
267
Tuman’s words that he was in favour of “destroying everything.” It is also
alleged that the Serbs who decided to stay “were hunted down and killed”,
their houses set on fire and looted, their cattle killed, and wells poisoned. 268
The Respondent argues that this is a clear indication that the President’s “aim
was to destroy the Serb people of Krajina, as such.” 269 These allegations were
made in the Counter Memorial and were fully repudiated in the Reply. The
Respondent again ignores or misrepresents relevant facts that contradict the
case it seeks to put forth. It draws conclusions at odds with the actions of the
parties at that time. In doing so it either ignores the contents of the Reply, or
miscasts the Applicanit’s response.
263See Brioni Minutes, Counter-Memorial, Annex 52, p. 2.The President instructed his com-
manders as follows:
“Therefore we should leave the east totally alone, and resolve the question of the south and
north. In which way do we resolve it? This is the subject of our discussion today. We have
to inflict such blows that the Serbs will to all practical purposes disappear, that is to say, the
areas we do not takei at once must capitulate within a few days. [i…]
Therefore our main task is not BihaÊ, but instead to inflict such powerful blows in several
directions that the Serbian forces will no longer be able to recover but will have to capitu-
late.” (emphasis addeid)
264Gotovina TJ, para. 1990.
265Brioni Minutes, Counter-Memorial, Annex 52, p. 15 referred to in the Rejoinder, paras 698,
699.
266
Reply, para. 11.48 iciting Brioni Minutesi, Counter-Memorial, iAnnex 52, p. 7.
267Rejoinder, paras 70i0-701.
268
Rejoinder, para. 70i1.
269Rejoinder, para. 70i2. 50
(a) no “criminal agreeme“nt directed at the “Serb population” was“ reached
at Brioni
3.17 The Respondent alleges that a statement made by General Gotovina
confirmed that the “aim of the operation was to remove the Serbs from Kra-
jina.” In the statemient in question, Goitovina stated:
“A large number of civilians are already evacuating Knin and heading
towards Banja luka and Belgrade. That means that if we continue this
pressure, probably for some time to come, there won’t be so many
civilians just those who have to stay, who have no possibility of leav-
ing.” 270(Emphasis in the Rejioinder)
3.18 Yetagain,theRespondentfailstosetoutthecontextinwhichGotovi-
na made this statement. The statement was made in response to what the
President had just said and should be analysed in that context. The President
had said how it was important for the civilians to evacuate because “then the
army will follow them” and then seeing the “columns set out” this will have
a “psychological impact.” In other words, the departure of civilians and the
departure of the army would have a mutually reinforcing effect on each other
and the evacuation. Gotovina’s response that “a large number of civilians are
already evacuating Knin” was a factual statement. Those present at the meet-
ing were aware of this. The ongoing departure had already been the subject
of discussion. However, the Respondent ignores the context and argues that
this statement confirmed that the aim was to remove civilians per se, divorced
from the military objective of swiftly defeating an enemy army. The Applicant
had addressed this issue in the Reply. 271 As explained there, the “pressure”
referred to the threiat of an HV attack.
3.19 According to the Respondent, the argument that the Serbs fled be-
cause they were afraid of an HV attack 272es not have any significance for the
legal characterization of this case.” They argue that the past experience of
the Serbs (after Flash) and the subsequent killings and crimes in Sectors North
and South prove that the fears of the Serbs were fully justified, and they had
273
to flee to save their lives. Chapter 4 deals with the legal characterisation of
the Respondent’s caise.
3.20 As regards the Respondent’s other allegations, firstly, its allegations
regarding Flash, (which are outside the purview of the case) have been dealt
270
Rejoinder, para. 70i3 citing the Brioni Miinutes, p. 15.
271Reply, para. 11.46. See also Reply Annexes 165, pp.16, 20; Annex 166 which demonstrate
that the Serb civilians and soldiers were fleeing the ‘Krajina’ in the days before Operation
Storm.
272Rejoinder, para. 70i4.
273
Ibid. 51
with in Chapter 2. Secondly, the central plank of the Respondent’s case is that
the Applicant developed a plan to drive out Serb civilians permanently using
unlawful shelling and creating legal obstacles to their return. Yet neither of
these objectives were discussed at Brioni. On the contrary, Tuman’s view,
as expressed at Brioni was that it was better that a town should fall (without
shelling) rather than that it should be shelled. 274 Therefore the Respondent’s
interpretation of Brioni in light of “subsequent” events - i.e. finding that sys-
tematic unlawful shelling subsequently occurred and that obstacles to return
were subsequently created, and that the Brioni discussions must, therefore,
have been an agreement to implement those objectives - reflects flawed rea-
soning. likewise, President Tuman’s statements on the days and weeks fol-
lowing Brioni cannot cast light on what was in the minds of the other partici-
pants at Brioni. Nor can subsequent discussions concerning the return of Serbs
and policies related thereto provide any basis for inferring that these matters
were agreed to at Brioni, particularly when there was no discussion at Brioni
whatsoever about preiventing Serbs from ireturning.
3.21 It is noteworthy that the Respondent, mentions the evacuation plans
of the Serbs for the first time in the Rejoinder. 275It argues however, that the
Croatian military leaders did not give the Krajina Serbs “any genuine choice”
and that their “massive displacement was organized and executed against their
will.” 276It goes on to argue that at the Brioni meeting, “President Tuman
considered only two options: a) that the Serbs be pushed out and forced to
flee, or b) that the Serbs be forced to fight to “the bitter end”. An option in
which the Serbs could freely continue to live in Krajina was not considered
at all.”277As set out in the Reply, there is overwhelming evidence that the
‘RSK’s’ evacuation orders and propaganda induced fear of Croatia and its
military which led to Serb civilian departures. The evidence and arguments in
relation to this issuie are set out belowi.
(b) no plan to direct ar“tillery against ci“vilians
3.22 ThecoreoftheRespondent’sgenocideclaimisthatPresidentTuman
ordered the indiscriminate and excessive shelling of civilians to force them to
flee.278A plain reading of the transcript shows that the President urged his
military commanders to do exactly the opposite. He told his commanders that
the “psychological effect of the fall of a town is greater than if you shell it for
two days” 279and urged them to use artillery sparingly. 280The Respondent ac-
274Brioni Minutes, Couinter-Memorial, Annexi 52, p. 18.
275
Rejoinder, para. 70i4.
276Rejoinder, para. 70i5.
277Ibid.
278
See e.g. Counter-iMemorial, paras 1215 iet seq. Rejoinder, paras 707i et seq.
279Brioni Minutes, Couinter-Memorial, Annexi 52, p. 18.
280
Ibid., p. 21. See also iReply, para. 11.47. 52
cepts this, but argues that the President’s statement only applied to the town
281
of GraËac and not Knin. In support of its allegations on the shelling of Knin,
the Respondent relies on the testimony of two witnesses from the Gotovina
trial - Andrew leslie and Joseph Bellerose. 282 However, as set out below,
contrary to these testimonies the Trial Chamber was unable to identify a single
Serb civilian victim oif shelling. 283
(c) no decision to targe“t fleeing civilians“
3.23 The Respondent accepts the Applicant’s submissions that the depar-
ture of civilians and soldiers was ongoing before Operation Storm. 284 It also
accepts the fact that there was no discussion regarding the targeting of civil-
ians/civilian columns. It now argues that the decision to target fleeing civil-
ians “was directly provoked by the wording and atmosphere at the Brioni
285
meeting.” As set out earlier, the Brioni transcript, is just that - a transcript,
it is impossible to extrapolate what the atmosphere was like on the basis of it.
3.24 The minutes of the meeting of 2 August 1995, attended by a number
of high ranking military officials, including the Minister of Defence and Gen-
erals Gotovina and MarkaË show the there was no “plan” to force Serb civil-
ians out the Krajina or to target them. At the meeting, two days before Storm
was launched, and two days after Brioni, the Croatian Defence Minister ©uπak
“stressed to the participants that the [m]ilitary police must be more energetic
in its actions and must prevent all offences,” and instructed the MD Com-
manders to pass on to the other commanders, the prohibition of any kind of
uncontrolled conduct (torching, looting, etc). 286These instructions are plainly
inconsistent with any alleged plan to permanently expel Serb civilians from
the Krajina, direct airtillery at them or iindeed target fleeingi civilians.
(d) no discussion at Bri“oni regarding the m“urder of civilians a“nd the de-
struction of propert“y
3.25 The Respondent does not allege that there was any discussion re-
garding the murder of civilians, the destruction of property or any alleged
287
obstacles to return at Brioni. Given that the Respondent has not referred
to any “agreement” other than Brioni where the dolus specialis is said to
281
Rejoinder, para.708i.
282Rejoinder, paras 70i9-710.
283See paras 3.37, infra.
284Reply, para. 11.48.i
285Rejoinder, para. 71i2.
286
See Minutes of the Meetings held at the Defence Ministry of the Republic of Croatia, 2 Au-
gust 1995, Reply, Ainnex 172. See alsoi Gotovina TJ, para. 1987.
287Reply, paras 11.51-i11.53. 53
have emerged, it is impossible to ascertain how these alleged acts could have
formed a part of Croiatia’s “genocidal plani.”
3.26 The Respondent’s reliance on the Brioni Minutes does not stand up
to serious scrutiny. As stated time and again, the Brioni Meeting concerned
Croatia’s legitimate plan to re-integrate its occupied territory, a right it had
under international liaw.
SECTION II: CROATIKA DID NOT COMMIT GEKNOCIDE
DURING OPERATION STORM OR THEREAfTER
3.27 The Respondent does not challenge the Applicant’s account of the
planning for Storm, including details of operational planning and guidance
for the use of artillery. Nor does it challenge the Applicant’s brief operational
account of Operation Storm, its combatants - the Croatian armed forces and
288
the SVK- and their weapons. A full account of Operation Storm is set out in
the Reply.289The Applicant has already responded to the unfounded claim that
there existed a “plan” to destroy all Serbs.It now addresses the new allega-
tions regarding the conduct of Operation Storm as raised in the latest pleading.
(1) TheRe W as no “d elibeRaTe indiscRiMinaTe shelling ” duRing o PeRaTion
storm
3.28 The Respondent alleges that the Applicant undertook deliberate in-
discriminate shelling during Operation Storm resulting in a mass exodus of
Serbs from the ‘Krajina’.291The Respondent’s allegations are unsustainable
and cannot be upheld; it therefore follows that its arguments on the expulsion
of Serbs from the ‘Krajina’ (allegedly resulting from deliberate indiscriminate
shelling) must also be rejected. Serbia’s case on shelling rests almost entirely
on testimonies and evidence adduced before the Gotovina proceedings. In its
Rejoinder the Respondent merely restates its earlier submissions and quotes
one paragraph from the Gotovina Trial Chamber judgment, which is subject
to an on-going appeail.
3.29 ItisnoteworthythattheRespondent’scaseonshellinghasbeenscaled
back significantly in the Rejoinder. Its arguments now focus almost exclusive-
ly on the shelling in Knin on 4 and 5 August 1995. In the Counter-Memorial
the Respondent had referred to shelling in Knin, Bosansko Grahovo, Benko-
28Reply, paras 11.60-i11.61.
289
Reply, paras 11.56 iet seq.
29See e.g. Reply, pairas 10.117 and 11.4i2.
291
Counter-Memorial, piaras 1215-1228; Rejioinder, paras 723-72i8. 54
vac, Obrovac, GraËac, Kistanje, Uzdolje, KovaËiÊ, Plavno, PolaËa, BukoviÊ,
Kruπevo, Æegar, Zelengrad, Zaton, Biliπane, MuπkoviÊi and Bogatnik. 292Most
of these settlements are not mentioned in the Rejoinder. Serbia’s arguments
are now restricted to Knin, Benkovac, Obrovac and GraËac. 293The weakness
of Serbia’s argument is reflected in the small number of pages it has dedicated
294
to shelling in the Reijoinder.
3.30 As set out above, the sole objective of Operation Storm was to enable
Croatia to regain control of its territory illegally occupied by the rebel Serbs.
It was carriedoutinfullcompliancewithallapplicableinternationalrules.Ar-
tillery was used by HV forces solely to engage legitimate and pre-determined
military targets in Knin, Benkovac, Obrovac and GraËac. The Trial Chamber
in Gotovina identified legitimate military objectives in each of these towns. 295
Serbia itself recognises that Knin was subject to shelling because it was “the
main city of the RSK” and as such was the military and political nerve-centre
296
of the RSK. With regard to Benkovac, Obrovac and GraËac, the Respond-
ent erroneously stated that these “were shelled repeatedly despite having no
identifiable military targets”. 297 The Applicant refuted this allegation in the
Reply, setting out that all three towns were shelled because legitimate military
objectives were located there. Maps showing the location and nature of the
military targets were annexed to the Reply but the Respondent has failed to
address this. 298
3.31 The Respondent advances four arguments relating to deliberate in-
discriminate shelling: first, the Respondent accuses the Applicant of not ad-
equately addressing the trial testimony advanced in the Counter-Memorial;
second, it refers to one line from an Artillery Order of 2 August 1995; third, it
erroneously argues that Croatia’s reliance on an SVK Intelligence Report of 4
August and the testimony of SVK Commander General MrkπiÊ is misguided;
and fourth, the Respondent relies on the findings of the Trial Chamber in the
299 300
on-going Gotovina case. Each of these will bei addressed in turn.i
292
Counter-Memorial, piaras 1215-1216; 122i5.
293Rejoinder, para. 72i4.
294The Respondent dediicates only 2 of 322i pages in the Rejoinider to shelling.
295Gotovina TJ, paras 1899-190i2; 1919; 1929-1931i; 1939.
296Counter-Memorial, piara. 1217; Reply paria. 11.73.
297Counter-Memorial, piara. 1216.
298Reply, para. 11.75;i Reply, Annex 178.
299Rejoinder, paras 72i3-728.
300One argument the Respondent has dropped is its assertion in the Counter-Memorial that mul-
tiple rockets launchers (MBRls) are “designed for open field battle and inappropriate for use
in the populated civilian areas” and hence were inherently indiscriminate. (Counter-Memorial,
para. 1220.) The Trial Chamber in Gotovina found that “although MBRls are generally less
accurate than Howitzers or mortars, their use by the HV in respect of Knin on 4 and 5 August
1995 was not inherenitly indiscriminate.” i(Gotovina TJ, para. 1897). 55
3.32 Firstly, contrary to the Respondent’s assertion, the Reply explicitly
addressed the Gotovina testimonies invoked by it. 301 The testimonies, rather
than constituting evidence of indiscriminate shelling, are a reflection of the
high number of legitimate military targets located in Knin. At least 9 different
military targets were spread across the city of Knin. 302 The fact that artillery
was fired at multiple targets in Knin is not evidence of deliberate indiscrimi-
nate shelling. Moreover, some key statements of witnesses relied upon by the
Respondent have been refuted during the Trial and in the Trial Chamber’s
decision of 15 April i2011:
i. The Respondent referred to testimony by Mira Gubor, a labora-
tory assistant, that 120 people were killed and between 160 and
180 were injured by shelling and Knin. 303 John William Hill’s
testimony that 6 people were killed and 4 injured by a shell land-
ing close to the UN compound in Knin is also referred to. 304The
Respondent also relies on testimony by Andrew leslie to the ef-
fect that he witnessed “large quantities of dead, men, women and
children, stacked in the hospital corridors in a pile. 305These state-
ments are clearly inaccurate. The Trial Chamber’s judgment in
Gotovina does not identify a single death or injury resulting from
306
the shelling of Knin.
ii. According to the Respondent a UN engineer for Sector South,
Joseph Bellarose, testified that “the shelling of Knin was not di-
rected at specific military targets but was deliberate harassment
shelling.” 307 However, this is patently inconsistent with the Tri-
bunal’s finding that, even when using its own highly restrictive
200-meter test (discussed below) 94.5% of all artillery projectiles
308
fired at Knin were foiund to be directed iat military objectiveis.
iii. The Respondent also cites the testimony of Alun Roberts, a UN
Press Officer, stating that “about 200 civilian locations were hit
during the shelling of Knin.” 309However, Mr Roberts was only
301Reply, para. 11.74.i
302
Gotovina TJ, paras 1899-1902i.
303Counter-Memorial, piara. 1223.
304
Counter-Memorial, piara. 1222.
305Counter-Memorial, piara. 1223.
306
Gotovina TJ, para. 1364; ICTY Appeals Chamber, Appellant’s Brief of Ante Gotovina, Case
No. IT-06-90-A, 2 iAugust 2011, para. i101.
307Counter-Memorial, piara. 1220.
308
ICTY Appeals Chamber, Appellant’s Brief of Ante Gotovina, Case No. IT-06-90-A, 2 Au-
gust 2011, Annex Ai.
309Counter-Memorial, piara. 1220; Rejoinderi, para. 710. 56
able to specifically identify five civilian buildings damaged by
shelling. His estimate is contradicted by the Trial Chamber’s find-
ings that only 50 HV shells landed more than 200 metres from
legitimate military targets and that most of these fell in open
310
fields.
3.33 Secondly, the Respondent quotes nine words (“shell the towns of Dr-
var, Knin, Benkovac, Obrovac, GraËac”) from a 4-page HV Artillery Order of
2 August 1995 without explaining how these words are helpful to its case. 311
As explained in the Reply, the Order which put these towns under artillery
fire explicitly directed the artillery support to engage in shelling to “rout, neu-
tralise and destroy the enemy’s combat disposition at the tactical level”, to
“[p]revent the enemy from bringing in new forces” and to “neutralise the
artillery positions of the enemy batteries and destroy the enemies communi-
cations centres and command post.” 312 If the Respondent believes that these
nine words are evidence of an order to indiscriminately shell Knin, it is evi-
dently reading these words out of context. 313The Artillery Order of 2 August
clearly put in place a plan to solely target predetermined legitimate military
objects. This is the view expressed in an Amicus Curiae Submission pre-
pared for the Trial Chamber in Gotovina by 12 leading military operational
314
experts. The Amicus Brief argues that rather than interpreting such orders
“in the abstract” the Appeals Chamber should “consider the common reality
[…] that considering such explicit terms in the abstract can be quite mislead-
315
ing.”
3.34 Moreover, the Head of Artillery of the Split MD during Operation
Storm, Marko RajËiÊ, has testified that he did not interpret that line as an order
to shell the town indiiscriminately, nor toi treat the whole towin as a target:
“As can be seen in Section 3 of this Order to Attack - Attachment for
Artillery, following Section 7 of the Operational order, I also planned
310Gotovina TJ paras 1903-1904; ICTY Appeals Chamber, Appellant’s Brief of Ante Gotovina,
Case No. IT-06-90-Ai, 2 August 2011, piara. 83.
311
Order of Attack, Split MD, 2 August 1995, Reply, Annex 171. See also Counter-Memorial,
para. 1216 and Rejoiinder, para. 724.
312Reply, para. 11.72.i
313
The Respondent’s arguments regarding Croatia’s alleged failure to provide artillery docu-
ments (Rejoinder, piaras 724 and 732) is idealt with in Chapter i1, paras 1.50-1.51.i
314Application and Proposed Amicus Curiae Brief Concerning the 15 April 2011 Trial Cham-
ber Judgment and Requesting that the Appeals Chamber Reconsider the Findings of Unlawful
Artillery Attacks During Operation Storm, 12 January 2012 (“Amicus Curiae Brief”). The Ap-
peals Chamber declineid to grant leave to ifile the Amicus Curiae Brief on 14 Februaryi 2012.
315Ibid., para. 14. The distinguished authors of the Amicus Brief also explain that it is unsurpris-
ing that the order employed “imprecise terminology” because it was prepared by non-legal staff
officers who did so uinder the pressures iof on-going combat (ipara. 15). 57
fire on the towns of Drvar, Knin, Benkovac, Obrovac and GraËac. I
relayed this order with the exact same language as stated in Section 7
of the operational order, because there was no need for clarification.
It was clear to me, and to all the commanders of the subordinate units
that this meant to fire at the selected military objectives in these towns
and in accordance with the existing plans and source lists of military
316
objectives.”
3.35 Thirdly, the Respondent seeks to discredit an SVK Intelligence Report
relied upon by the Applicant to show that HV artillery was directed at legiti-
mate military objects. 317The Respondent alleges that the Intelligence Report
was “issued in the morning of 4 August, at so early stage of the operation that
no reasonable conclusion can be inferred from that.” 318The Trial Chamber in
Gotovina held that over the course of two days approximately 900 rounds of
319
artillery were fired at Knin. The SVK intelligence report was prepared at
10:00am on 4 August by which time 200-300 projectiles (by the SVK’s own
admission) had been fired by HV forces, amounting to more than around 20%
of all shells fired on 4 and 5 August. 320 Moreover, the very testimony relied
on by the Respondent in the Counter-Memorial contradicts its assertion in the
Rejoinder that the SVK Intelligence Report predates the purported indiscrimi-
nateshelling.IntheCounter-MemorialtheRespondentallegedthat“duringthe
morning hours of 4 August [Andrew leslie] observed explosions all over the
city of consistent nature while later the shelling became grouped across spe-
cific regions of the city.” 321 The Respondent fails to explain how this account
of alleged indiscriminate shelling “during the early hours of 4 August” can be
reconciled with the SVK Intelligence Report prepared at 10:00am on 4 August
which describes artillery fire directed solely at legitimate military objects.
3.36 The Respondent’s fourth argument rests on the Trial Chamber’s find-
322
ings that the HV’s shelling of Knin was indiscriminate and unlawful. An
316
Reply, Annex 173, para. 45. Marko RajËiÊ also explained in his testimony to the ICTY that
the formulation “putting the towns under fire” meant that the targets in those towns were to be
under constant fire, which referred to a combat activity known as harassing fire and disruptive
fire on enemy combati elements.” See Gotovina TJ, para. 1188, citiing Marko RajËiÊ, T.i 16590.
317Rejoinder para. 725; Reply para. 11.73 and Reply, Annex 177. (“The target of the first strike
was the building of the General Staff of the Serbian Army of Krajina, which sustained consid-
erable damage and the almost complete loss of the motor pool. Subsequently the fire focused
on the ‘1300 Corporals’ barracks, the TVIK plant, the railway junction and housing below the
Knin fortress [area of the residence of the “RSK president” Mile MartiÊ - author’s note] and
other targets.”)
318
Rejoinder, para. 72i5.
319Gotovina TJ, para. 1909.
320SVK, Intelligence Diepartment, Intelligeince Report, 4 Auguist 1995, Reply, Anniex 177.
321Counter-Memorial, piara. 1220.
322Rejoinder, para. 72i7. 58
important initial observation is that the decision of the Trial Chamber has been
appealed. The first ground of the appeal is that “[t]he Trail Chamber erred in
facts and law when concluding that there was an unlawful attack on civilians
and civilian objects”i. 323
3.37 It is submitted that the Trial Chamber erred in fact and in law with
regard to its pronouncements on shelling by HV forces. The Trial Chamber re-
ceived forensic evidence in relation to only three bodies of persons who were
allegedly killed in Knin. The Trial Chamber held that “[t]he evidence received
does not establish a link between any of these three deceased and the shelling
324
of Knin on 4 and 5 August 1995.” The Appeal Brief of Ante Gotovina be-
fore the ICTY Appeals Chamber highlights the fact that “[t]he Trial Chamber
was unable to establish a single death or injury” resulting from the shelling
and that it was “unable to identify a single civilian terrorized by any disputed
shelling incident.” 325However, despite the failure to establish a link between
the three deceased and the shelling, the Trial Chamber held that Knin was
326
subjected to indiscriminate shelling. The Applicant submits that in view of
the lack of evidence of deaths or serious injury resulting from the shelling of
Knin, the Trial Chamber erred in its finding that Knin was subjected to indis-
criminate shelling.
3.38 Moreover, the Gotovina Trial Chamber’s pronouncements on the
use of artillery and targeting during Operation Storm have been widely
criticised by academics, specialists in the field of international humanitar-
ian law and military law experts. As mentioned above, an Amicus Curiae
Brief was filed by 12 highly distinguished individuals, amongst whom are
retired military legal advisors, three ex-Judge Advocate Generals and a
327
former senior legal advisor of war matters for the US Army. Concerned
that “the ‘Gotovina’ judgment has the potential to become the ‘TadiÊ of
323ICTY Appeals Chamber, Appellant’s Brief of Ante Gotovina, Case No. IT-06-90-A, 2 Au-
gust 2011, p. 4.
324Gotovina TJ, para. 1364.
325ICTY Appeals Chamber, Appellant’s Brief of Ante Gotovina, Case No. IT-06-90-A, 2 Au-
gust 2011, para. 10i1.
32A lack of proof of death or injury alone means that there cannot be a finding of indiscriminate
attacks under Article 3 of the ICTY Statute. The ICTY Appeals Chamber in KordiÊ upheld
an earlier finding that “an element of the conviction for the crime of unlawful attack directed
against civilians or civilian objects under Article 3 of the Statute is that the attacks must be
shown to have caused deaths and/or serious bodily injuries or extensive damage to civilian
objects.” (Prosecutor v. KordiÊ, IT-95-14/2-A, Judgment of the Appeals Chamber of the 17
December 2004, parais 55-57).
327Application and Proposed Amicus Curiae Brief Concerning the 15 April 2011 Trial Cham-
ber Judgment and Requesting that the Appeals Chamber Reconsider the Findings of Unlawful
Artillery Attacks During Operation Storm, 12 January 2012 (“Amicus Curiae Brief”). These
individuals collectiveily possess 290 yearis experience. 59
328
targeting law’” the Amicus Brief reviewed the Trial Chamber’s judgment
“with particular focus on the portion of the judgment addressing the allega-
tion of unlawful attacks against the city of Knin” 329and came to the conclu-
sion that “the methodology utilized by the Trial Chamber when assessing
operational effects is inconsistent with operational practice and artillery
330
capabilities.”
3.39 The International Humanitarian law Clinic at Emory University law
School convened a group of military operational law experts to discuss the
legal issues and implications of the Gotovina Trial Chamber decision. 331The
experts shared the concerns of the Amicus Curiae because, as the Emory law
School Report explains, the judgment has “extraordinary import for future op-
erations and conflicts” because the case is “the first - and likely the only - case
assessing complex targeting decisions involving the use of artillery against a
range of military objectives in populated areas during a sustained assault.” 332
The Report states that the experts agreed that “the legal analysis as presently
conceived is flawed on multiple levels”. 333 The Applicant shares the view of
the authors of the Amicus Curiae Brief and the experts convened by Emory
law School that the findings of the Trial Court pertaining to shelling and tar-
geting are deeply flaiwed.
(a) Regardless of th“e Trial Chamber’s “Judgment in Gotovin“a, the evidence
overwhelmingly sho“ws that artillery “rounds were not fire“d indiscriminately
3.40 The shelling of Knin was not indiscriminate because even by the Trial
Chamber’s own calculation (which the Applicant believes is wrong) 94.5%
of shells were held to have been fired at legitimate military targets. Reputa-
ble third sources have corroborated the view that the shelling was not indis-
334
criminate. Moreover, the SVK’s Chief of Artillery has admitted that the HV
328Ibid., para. 2.
329
Ibid., para. 5.
330Ibid., para. 16.
331
Emory University School of law, Operation law Experts Roundtable on the Gotovina Judg-
ment: Military operations, Battlefield Reality and the Judgment’s Impact on Effective Imple-
mentation and Enforcement of International Humanitarian Law, Public law & legal Theory
Research Paper Series, Research paper No. 12-186, (hereinafter “Emory Paper”) available at:
http://ssrn.com/absitract=1994414.
332
Ibid., p. 2.
333Ibid., p. 4.
334
A UN Cable from Special Envoy Akashi to the Secretary General states inter alia that the
damage to Knin was less than anticipated and that large numbers of homes remained untouched
(UN Coded Cable from Akashi to the Secretary General dated 7 August 1995, Reply Annex
214). A Report by the UN Secretary General to the Security Council dated 23 August 1995
states that Knin was subjected to “concentrated shelling” (Report of the UN Secretary General,
S/1993/730, dated 2i3 August 1995). Seei also Reply, para. 11i.74. 60
artillery fire was “planned out to a single smallest detail: each projectile and
each artillery fire.”335As stated above, the Trial Chamber was unable to find
conclusive evidence of a single civilian death or serious injury resulting from
336
the shelling of Knin.
3.41 The Trial Chamber found that at least 900 projectiles were fired at
Knin on 4 and 5 August. The Chamber found that of these approximately
900 projectiles, 50 impacted more than 200 metres from objects identi-
337
fied by the HV as military targets. It was held that approximately 40
projectiles “impacted near the ECMM building”. 338 This represents 80%
(40 out of 50) of all projectiles deemed by the Trial Chamber to have
been fired indiscriminately. However, the figure appears to be based solely
on the testimony of one unreliable witness, Murray Dawes. For instance,
the Trial Chamber rejected Dawes’ contention that HV forces had fired
cluster bombs at Knin. 339 Other witnesses before the Trial Chamber could
not identify anywhere near as many projectiles impacting in the vicinity
of the ECMM. 340 It is also patently obvious that some of the Trial Cham-
ber’s legal findings are contradicted by its own factual determinations.
For example, the Trial Chamber held that GraËac had been subjected to
indiscriminate shelling, despite simultaneously finding that “GraËac town
341
showed limited signs of damage”. The findings of the Trial Chamber in
relation to Knin are also refuted by photos and videos of Knin after Opera-
tion Storm which plainly show that Knin did not suffer wide-spread dam-
342
age from shelling.
(b) The findings of t“he Trial Chamber i“n Gotovina are bas“ed on an arbitrary “
and overly restrict“ive margin of error“
3.42 The Trial Chamber in Gotovina imposes an arbitrary and overly
restrictive margin of error in its assessment of the shelling carried out by
Croatian forces during Storm. Without any adequate explanation the Trial
Chamber decided that any artillery projectile impacting more than 200 me-
335
Marko Vrcelj, “The War for Serbian Krajina: 1991-1995”, Belgrade, 2002, Reply, Annex
176, p. 6. See also SVK, Intelligence Department, Intelligence Report, 4 August 1995, Reply,
Annex 177.
33Gotovina TJ, para. 1364; ICTY Appeals Chamber, Appellant’s Brief of Ante Gotovina, Case
No. IT-06-90-A, 2 iAugust 2011, para. i101.
337Gotovina TJ, paras 1903-1905i.
338Gotovina TJ, para. 1903.
339Gotovina TJ, para. 1371.
340Gotovina TJ, para. 1388.
341
Gotovina TJ, paras 697 and 1i935.
342Reply, paras 11.74-i11.75. 61
ters from a known military target would be presumed to have been fired
indiscriminately. 343The Report of Emory law School explains:
“After setting forth, without explanation, a 200-meter radius of er-
ror as the means for determining which effects were attributable to
lawful objects of attack, the Trial Chamber found that just under
5% of the artillery shells landed beyond that radius of error. It then
inferred the intent to unlawfully attack civilians from this 5% of
shells landing outside the radius of error, without further explana-
tion or analysis.” 344
3.43 The Trial Chamber recognised Andrew leslie as “a military of-
ficer with extensive experience in artillery”. 345leslie testified that the HV
used a variety of area target weapons systems “for which a landing within a
400-meter radius of the target with the first shot would be ‘acceptable’”. 346
He was the only witness with military expertise who was actually present
in Knin at the time of shelling. However, the Trial Chamber ignored his
testimony. If applied, leslie’s 400-meter formula reduces the number of
shells impacting outside the acceptable range of error from 4.5% to 0.1%.
Only one shell, out of approximately 900, was held by the Trial Chamber
to have impacted more than 400 meters from a known military objective in
347
Knin.
3.44 The authors of the Amicus Curiae Brief also expressed deep concern
at the arbitrary 200-meter standard which they found to be “fundamentally
inconsistent with the realities of operational employment of artillery and other
indirect fire assets.” They found that it was “operationally invalid and has no
pragmatic foundation.” 348It is noteworthy that the Amicus Curiae Brief states
343In the determination of a margin of error, the Trial Chamber did not take into consideration
any of the relevant factors that affect the accuracy of artillery. The Chamber itself concedes that
despite the fact that variations in the locations of impact depend on a number of factors, it did
not receive any detailed evidence on this. (Gotovina TJ, para.1898). The Amicus Curiae Brief
lists the most prominent variables impacting the precision of artillery projectiles, inter alia the
quality of intelligence, equipment and munitions; the location of fire support assets; the training
and capability of forces; weather; terrain; fatigue (Amicus Curiae Brief, para. 22). It is difficult
to see how then the Chamber could conclusively determine that a variation of more than 200
meters amounts to ain indiscriminate attacik.
344
Emory Paper, p. 4.i
345Gotovina TJ, para. 1167.
346
Ibid.
347ICTY Appeals Chamber, Appellant’s Brief of Ante Gotovina, Case No. IT-06-90-A, 2 Au-
gust 2011, Annex Ai. See also the Amicus Curiae Brief, paras 18-19.
348
See the Amicus Curiae Brief, para. 16. The authors urge the ICTY Appeals Chamber to apply
a “more operationally realistic radius of permissible error” and encourage the application of the
400-meter standard iproposed by Andrewi leslie (para. 18.). 62
that even assuming the 200-meter standard, the factual findings of the Trial
349
Chamber do not suppiort a finding of indisicriminate shelling.
(c) The Trial Cham“ber improperly decid“ed that projectiles“ impacting more
than 200 meters fro“m known military t“argets were deliber“ately fired into
civilian areas
3.45 The Trial Chamber erroneously made the assumption that artillery
projectiles impacting more than 200 meters from known military targets were
350
deliberately fired into civilian areas. Most of the shells impacting beyond
the 200-meter radius landed in open fields. 351The Trial Chamber itself con-
ceded that it was not possible to get a full account of all military targets in
352
Knin. It also conceded that it was not able to establish exactly how many
projectiles impacted civilian objects in Knin. 353Whatever standard is applied,
only a very small number of projectiles landed outside an acceptable radius
of impact. It is submitted that the Trial Chamber could not possibly infer an
indiscriminate attack from such a small percentage given that not all mili-
tary objectives could be identified and it was not known how many projec-
tiles impacted civilian objects. The evidence put forward certainly does not
prove indiscriminate shelling beyond a reasonable doubt. Rather the evidence
points to a concentrated military operation limited to flushing out rebel Serb
forces from Knin, Benkovac, Obrovac and GraËac. It is noteworthy that the
Respondent itself recognises that the shelling undertaken by HV forces during
Operation Storm does not constitutei evidence of genocidial intent; it states:i
“Inordertoavoidanydoubtandfurtherdebate,theRespondentstress-
es that the deliberate indiscriminate shelling of the Krajina towns and
villages is not evidence of the genocidal intent per se. However, as a
part of a range of widespread and systematic criminal acts committed
349Ibid., para. 18-19. Further, the individual report appended to the Amicus Brief by Robert H.
Scales Jr., a former US Army Chief of Staff and leading expert in artillery and indirect fire,
makes the point that “if every technical aspect of every mission fired were perfect, normal
dispersion alone would result in some small percentage of rockets and shells landing outside
a 200-meter radius.” (Scales Report, p. 10.) The individual report of Wilson A. Shoffner, an
equally distinguished artillery expert, explains that “[t]here is no scientific, mathematical or
practical justification” for the 200-meter standard, that it is “totally inconsistent with the sci-
ence and practice of artillery and rocket fire.” (Schoffner Report, pps 2-4) Finally, the report
of Ronald H. Griffith, a former Vice Chief of Staff in the US Army states that the HV artillery
fires “were effectively planned and executed, and within both U.S. and Russian standards of
accuracy.” (Ronald Hi. Griffith Report p. i2.)
350
Gotovina TJ, paras 1906; 192i0; 1922; 1932; 193i4; 1940; 1942.
351Gotovina TJ, paras 1903-1904; ICTY Appeals Chamber, Appellant’s Brief of Ante Goto-
vina, Case No. IT-06i-90-A, 2 August 20i11, para. 83.
352
Gotovina TJ, para. 1267.
353Gotovina TJ, para. 1909. 63
during and after Operation Storm, the shelling demonstrates that the
Brioni messages concerning the disappearance of the Serbs were well
understood and fullyi implemented.” 354
(2) T he d ePaRTuRe oF The s eRbs
3.46 There was no discussion regarding forcibly removing the Serb popu-
lation from ‘Krajina’ at Brioni 355Now the Respondent alleges that the “in-
structions from Brioni” were implemented through the “intentional expulsion
of the Serb population from the Krajina region.” 356 As with other allegations
and claims, the Respondent recasts the Applicant’s arguments with respect to
the departure of the Serbs and then proceeds to respond to those rather than
responding to the Applicant’s actual arguments. Contrary to the Respondent’s
claim, the Applicant did not “[try] to prove that the departure of the Serbs
from Krajina was voluntary and planned by the RSK leadership.” 357 This is a
complete mischaracterisation of the Applicant’s position. The Applicant had
set out a number of reasons for the departure of the Serbs. 358 The Applicant
stands by those reasions and submissions.i
3.47 Firstly, there was an ongoing departure of the Serbs through the four
years of the existence of the ‘RSK’. These departures increased through 1995,
especially after Flash. The departures were attributed to a number of reasons
including difficult living conditions, poverty and general insecurity in the
‘RSK’. A general feeling of panic among the people was further intensified by
both the leading politicians of the ‘RSK’ and by representatives of the Serbian
Orthodox Church. These factors were recognised by a number of Serb lead-
ers in the ‘RSK’ and Serbia, both contemporaneously and later. 359 There is
360
nothing “sinister” about this as alleged by the Respondent. In fact the Trial
Chamber in Gotovina also noted the poor iliving conditions in iKnin. 361
354Rejoinder, para. 72i8.
355Reply, paras 11.46 iand 11.77 et seq.
356Rejoinder, para. 729. It quotes a Report of the UN Secretary General that states, factually,
that the exodus of the Serbs created a humanitarian crisis of major proportions. The Report does
not support the Resipondent with regard ito its argument of ainy “intentional expuilsion.”
357Rejoinder, para. 73i0.
358
Reply, paras 11.77 i-11.84.
359See inter alia Reply, Annex 152, an RSK document, dated 1 June 1995, in which MrkπiÊ
recognises the various problems faced by the RSK including poor leadership, dysfunctional
courts, smuggling, weakness of the military establishment and the resulting demoralisation of
the RSK citizens. See also Milisav SekuliÊ, Knin je pao u Beogradu [Knin Fell in Belgrade],
2001, p. 232 referried to in the Reply, ipara. 11.82.
360Rejoinder, para. 74i2.
361
The Trial Chamber observed that “in some cases, poor living conditions in Knin, the depar-
ture of others, and the imminent approach of Croatian forces may have had some bearing on
persons leaving.” (Gotovina TJ, para. 1743). 64
3.48 In another book, Florence Hartmann, the one-time spokesperson of
the Prosecutor of the ICTY also noted other problems in the ‘RSK’ including
low wages and shortages of power supply that were compounded by difficul-
ties in obtaining basic supplies. She noted the fact that the ‘RSK’ had no inde-
pendent sources of revenue and that the Krajina could not survive on its own
and was completely dependent on financial assistance from Belgrade. Many
Serbian families, she wrote, were leaving the area, but “this slow evacuation
of the people was onie of the best-kept isecrets of the Knin iauthorities.” 362
3.49 Secondly, the authorities of the ‘RSK’ had made very elaborate evac-
uation plans from 1993 onwards. 363It is noteworthy that the Respondent now
accepts the existence of evacuation plans, even though it seeks to undermine
them. 364 The development of the evacuation plans and their implementation is
dealt with in the secition that follows.
3.50 Thirdly, the ‘RSK’ leadership’s anti-Croatian propaganda resulted
in some Serbs leaving as they simply did not want to live in Croatia. This
was a logical consequence of the persistently advanced thesis of the Serb
leadership that any co-existence between the Serbs and Croats was impos-
sible.365 The Reply provided examples of statements by the Serb leadership
and others to this effect, including the statement of Savo ©trbac, the Presi-
dent of veritas the “independent NGO” whose Reports the Respondent
relies upon so heavily. 366 This is also clear from a number of testimonies
367 368
offered at the Gotovina Trial , and events after Operation Flash. While
the Respondent may seek to play this down, there is no getting away from
the fact that years of propaganda had an effect on the Serb population in
the Krajina.
362
Florence Hartmann, MiloπeviÊ- dijagonala laufera [MiloπeviÊ- The Bishop’s Diagonal], Dan
Graf (FRY), 2001, p.i 220.
363As set out in the Reply there is extensive evidence that the evacuation of the Serb population
was planned long before the launch of Operation Storm, Reply, paras 11.77 et seq. See also
Nikica BariÊ, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia 1990-1995], pp
546-554; Milisav SekuliÊ, Knin je pao u Beogradu [Knin Fell in Belgrade], NIDDA Verlang,
Bad Vilbel, 2001, ppi. 267-268, 179; RadiuloviÊ, 1996: 101-1i02.
364Rejoinder, para. 73i4.
365Reply, paras 11.80-11.81. See also the statement of Jovan OpaËiÊ, one of the leaders of the
rebel Serbs in the so-called RSK, who stated that psychological factors were the most impor-
tant causes of war. The war was caused, he said to the Belgrade weekly nin, primarily by the
collective paranoid fear of the Serbian population that they would be slaughtered. See Zorica
StanivukoviÊ, The Fate of the Aba“ndoned People, nin issue 2374 of 28 Juine 1996.
366Reply, Annex 200, Transcript of Video Clip of Savo ©trbac Speaking from a TV Studio in
Banja luka, 7 August 1995.i
367
Galbraith, Puhovski, lazareviÊ and GraniÊ were just some of the witnesses at the Gotovina
Trial that testified oin the issue.
368Reply, paras 10.94,i 10. 97-10.1.00 65
3.51 Fourthly, there is evidence that several Serbs were compelled to
leave by the ‘RSK’ authorities and its armed forces. This was referred to
in the Reply, and reference was made to the CHC Report on which the
Respondent relies. 369 The fact that Serbs were forced to flee by the ‘RSK’
authorities/SVK forces is also clear from the accounts of individuals whose
testimonies are annexed to these pleadings. These are just a few examples
of the many such requests for return that Croatia received after Operation
Storm.
i. In the Request for Return to the Republic of Croatia filed at the
Office of the Government of the Republic of Croatia in Belgrade
in October 1995, J.K. stated that she left Obrovac under the
order of the “local authorities.” 370
ii. In the Request for Return to the Republic of Croatia filed at the
Office of the Government of the Republic of Croatia in Belgrade
in January 1996, M.M. stated: “The reason for leaving [Croatia]
was the organised displacement of the entire popula- tion
before the Croatian Army action “Oluja” /Storm/, under the
pressure of the military and civilian authorities of the so-called
“Krajina” and due to the imposed general psychosis of fear and
371
panic.”
iii. In the Request for Return to the Republic of Croatia filed at the
Office of the Government of the Republic of Croatia in Belgrade
in January 1996, S.P. stated that her reason for leaving Croatia
was “the pressure of the Krajina police” and that she did not go
of her own free will. 372
iv. In the Request for Return to the Republic of Croatia filed at the
Office of the Government of the Republic of Croatia in Belgrade
in February 1996, S.G., stated that he was ordered to leave by
373
the command of the military unit in which he was a con-script.
3.52 Fifthly, there is no doubt that a military operation on the scale of Op-
eration Storm is bound to result in the large scale movement of civilians, even
369
Reply, para. 11. 83 and notes.
370Request for Return to the Republic of Croatia filed by J.K., October 1995,ex 12.
371Request for Return to the Republic of Croatia filed by M.M., January 1996, Annex 13
37Request for Return to the Republic of Croatia filed by S.P., January 1996, Annex 14.
373
Request for Return to the Republic of Croatia filed by S.G., February 1996, Annex 15 66
a military operation like Storm that was lawfully conducted. 374This is not a
375
remarkable observation, as the Respondent suggests. In fact it accepts this
when it admits that “Serbs of Krajina abandoned their homes in huge numbers
376
out of fear that they would be attacked and exterminated.” This is one of
the Applicant’s submissions, namely that a number of Serbs fled before Storm
commenced, before any alleged indiscriminate shelling and that the “fear”
was based on the years of propaganda by the Serb leadership. This was also
noted by the Trial Chamber. 377 Once again the Applicant refers to the witness
statements of Serbs who fled.
i. Witness Statement of D.–.: “I left my house together with my
family on 07 August 1995, among the last ones in my vil- lage,
only after two members of the “Krajina” police, whom I did not
know, had come to my house telling me: “What are you wait-ing
378
for, the Ustashas are coming, they will slaughter you all…”
ii. The Official Note of the Statement by N.G.: “When the “Storm”
VRA started, I was not aware of the developments and on
Sunday, 06 August 1995, […] I saw that all the villagers were
preparing and packing their belongings for the departure. […] At
that moment the Croatian Army was not even close to our village,
nor was there any shooting in the vicinity. […], a man from our
village dropped by my place and asked me whether I was also
preparing for the departure. I told him I was not preparing be-
cause I did not intend to go anywhere and besides, I did not have
oil for my tractor. That man then told me that I had better go as
well because if I remained in the village I could even be killed,
since the atmosphere in the village was such. I took those words
seriously. […]” 379
374
Reply, para. 12.32. As set out in the Reply, both Croatian and RSK intelligence confirmed
the exodus. On 2 August, HV intelligence reported that “there was an outburst of panic in that
area,” and that they had overheard an [SVK] officer saying “the situation in Knin is the same as
in Berlin in 1945…”, see Reply, Annex 167. On 3 August, SVK intelligence reported that ele-
ments of “panic” had been noted, and “[f]urthermore, the citizens believe that we are not able to
defend ourselves and that, should there be no significant help by the FRY it would be better for
the people to resettle to other areas rather than stay here to face encirclement and death.” RSK,
Security Department, Daily Report, 3 August 1995, Reply, Annex 168. p. 4.
375Rejoinder, para. 743.
376
Rejoinder, para. 744 (emphasis added).
377The Trial Chamber found on the basis of the evidence before it that some “persons left
because of a fear of the violence commonly associated with armed conflict, or general fears of
Croatian forces or distrust of Croatian authorities.” Gotovina TJ, para. 1762.
378Official Note of the Statement by D.–., Annex 17.
379Official Note of the Statement by N.G., Annex 18. 67
3.53 Finally, the Respondent’s reliance on the Trial Chamber’s judgment
380
in Gotovina to show a “massive exodus” is misplaced. Firstly, the Trial
Chamber in Gotovina found only that the Serbs from Knin, Benkovac, Obro-
vac and GraËac were forced to leave. 381It found that in the remaining parts of
the Krajina, Serbs left for reasons that were not caused by any illegal conduct
by Croatian authorities. 382Secondly, even though the Trial Chamber claimed
that at least 20,000 Serbs fled in fear of shelling, it has not identified by name
any Serb civilian who iclaimed to have fled diue to fear of shellingi.
3.54 Even with respect to the finding of the Trial Court that the Serbs in
Knin, Benkovac, Obrovac and GraËac were forced to leave, the Chamber had
no adequate basis to discount the overwhelming body of reliable evidence of
‘RSK’ evacuation orders and propaganda-induced fear of a Croatian military
victory as causes of the Serb civilians’ departure. The evidence clearly estab-
lished that Serbs left the ‘Krajina’ for a combination of reasons, unrelated to
any alleged unlawful shelling. As set out above, the Trial Chamber was un-
able to identify even one victim of shelling in any of the four towns of Knin,
Benkovac, Obrovac and GraËac. There was no finding by the Trial Chamber
that any civilian was even injured by shelling. 383 This is also apparent from
the fact that there were reports of evacuation from some villages in Eastern
384
Slavonia, which was over 450 kilometres from the Krajina. In any event,
these findings of thei Trial Chamber are alsio the subject of an iappeal.
3.55 In her book, Florence Hartmann concludes: “Every refugee could
confirm that the population fled following the call of its leadership; every sol-
dier could testify about Serbian soldiers being deliberately withdrawn, about
no shifts coming to night duty service in the areas where officers deserted, and
about heavy weapons withdrawn in an organized manner. In short, about the
385
conscious decision tio leave Krajina.”
3.56 At the time in question, the UN Secretary General had informed the Se-
curity Council that it was “difficult ... to determine the extent to which the mass
exodusoftheKrajinaSerbpopulationwasbroughtaboutbyfearofCroatianforc-
es, as opposed to a desire not to live under Croatian authority or encouragement
386
by local leaders to depart.” He made no mention of indiscriminate shelling.
380Rejoinder, para. 74i0 citing the Gotovina TJ, para. 1539.
381Gotovina TJ, para. 1745.
382Gotovina TJ, paras 1754, 175i5 and 1762.
383
See para. 3.37, supra.
384See excerpt from Electronic Surveillance Centre, Transcript for Eastern Slavonia, 4 August
1995, Annex 24.
385
Florence Hartmann, MiloπeviÊ- dijagonala laufera [MiloπeviÊ- The Bishop’s Diagonal], Dan
Graf (FRY), 2001, p.i 228.
386Report of the UN Siecretary General, S/i1993/730, dated 23 iAugust 1995, p. 3.i 68
(3) The ‘RsK’ s’ evacuaTion P lans
3.57 The Respondent accepts the existence of the Plans, but continues
387
to argue that indiscriminate shelling forced the Serb population to flee. It
states that the “existence” of the plans for evacuation was common practice
in the former Yugosl388a, but seeks to argue that the plans were not in fact
put into operation. On the contrary, documentation in the possession of the
Applicant shows that the departure of Serbs from the ‘RSK’ was planned, or-
dered and carried out both before and during Storm. Significant numbers left
following these orders before the Croatian forces even entered the occupied
territory.
3.58 Based on the available information, it is clear that the ‘RSK’ had de-
tailed evacuation plans for the civilian population from at least 1993. Over
the years these plans were updated and modified and widely distributed. The
Civilian Protection (“CZ”) staff was tasked with implementing the plans
together with the Army. These early plans were detailed, precise and com-
prehensive, defining evacuation routes (the direction of movement and exit
zones); the order of evacuation based on age, gender and other characteris-
tics; details of the signal for evacuation; and designated drivers and vehi-
cles. The fuel required for vehicles to be used for an evacuation had been
provided over a year before Operation Storm. The Applicant had annexed a
number of evacuation orders in the Reply, however 4 further documents set
389
out the detailed nature of the preparation of the ‘RSK’ authorities.
i. Detailed evacuation plans were made for Banovina where “the
31 Infantry Brigade” of the SVK communicated the evacuation
390
plan to all its officers on 18 February 1993. The Plan set out
details for the agencies responsible for evacuation; routes and exit
zone; resources for the evacuation, including details of vehicles
and drivers; the signal to indicate an evacuation, as well as as-
sembly points for the population. This document was widely dis-
seminated.
ii. A second document, dated 26 January 1993 from Autotransport
Benkovac to the “Crisis Staff of the Benkovac Municipal Assem-
bly” sets out plans for evacuating the civilian population of North
Dalmatia. It lists the names of drivers on permanent call, reserve
387Rejoinder, para. 73i2.
388Rejoinder, para. 73i4.
389
The Applicant has in its possession other documents relating to the planning and preparation
for the evacuation from 1993, however these are not being filed but are available if the Court
deems it necessary.i
39Evacuation Plan of the 31 Infantry Brigade Command, 18 February 1993, together with the
Plan drawn up by thei “CZ Staff, Petrinja iDepartment”, Februairy 1993, Annex 25.i 69
drivers, and those to be called in case of a large-scale evacuation
or an emergency evacuation. It specifies the location of vehicles
in case of evacuation and their capacity. It also sets out details of
the number of kilometres that buses could travel with the avail-
391
able fuel.
iii. In August 1994 the “Republican Civilian Protection Staff” in
Knin drew up a comprehensive document entitled “Assessment
of Threats and Possibilities for Protection and Rescue”. 392 This
393
is referred to by the Trial Chamber in Gotovina. This document
inter alia sets out a pyramidal (hierarchic) structure of the Civil-
ian Protection Staff (“CZ”) 394 responsible for carrying out quick
and effective evacuation in accordance with the decisions of the
“appropriate organs” and set out details on training of personnel
for collective protection. The document was adopted at a meeting
of the Republican CZ Staff on 14 July 1995, a fortnight before
Operation Storm commenced.
iv. The final new document illustrates how the orders and instruc-
tions regarding evacuation were distributed through the pyramid
of structures and how early the orders were issued. A document
issued by the Republican CZ Staff in Knin, on 1 May 1995 indi-
cates how preparations were made to ensure that all designated
agencies remained on alert. This document, orders activation/
mobilisation of all “regional and municipal Civilian Protection
Staff” at the beginning of Operation Flash. 395It introduced con-
tinuous permanent duty rosters and preparation for evacuation
and care for the population. Between nine and ten in the morn-
ing of 1 May the Serbian population in Western Slavonia was
informed of the evacuation and its implementation began at 1300
hours the same day. 396
391Autotransport Benkovac to the “Crisis Staff of the Benkovac Municipal Assembly”, Plan of
Evacuation of the Civiilian Population, 26 Jianuary 1993, Annex i26.
392
Republican Civilian Protection Staff, Assessment of Threats and Possibilities for Protection
and Rescue, Knin, August 1994, iAnnex 27.
393Gotovina TJ, para. 1514
394
At the top of the pyramid was Republican Civilian Protection Staff > Regional Civilian Pro-
tection Staff > Municipal Civilian Protection Staff > the Civilian Protection staffs in parts of
the municipal territory. At the bottom of the pyramid were Civilian Protection commissioners
in large apartment buildings, blocks of buildings, streets, populated areas and companies, and
other legal entities.i
395
Order of the Repubilican CZ Staff, strictily confidential, Knin,i 1 May 1995, Annex i28.
396Croatian Helsinki Committee for Human Rights, Department for Activism, Report on the
Military and Police“ operation Storm, Part III, Former iUN Sector West, Zagireb 2002, 12. 70
These early plans were gradually elaborated to the smallest detail, so that by
late 1994 and early 1995, everything was in place to carry out a quick and ef-
fective evacuation if ithe need arose.
3.59 As set out in the Reply from mid July 1995, the authorities of the
‘RSK’ issued a series of orders to update the plans and preparations for shelter
and evacuation of the population and sought daily reports of these prepara-
tions. Documents aninexed to the Reply iinclude the following:i
• An Order dated 15 July 1995, was issued by the Regional Civilian
Protection Staff, lika-Korenica administration, to the Municipal
CZ staffs in GraËac, Donji lapac, Vrhovine and Plaπki, with the
“goal of taking adequate measures to protect and rescue the popula-
tion and material goods.” It inter alia provides for evacuation and
the movement of people; the activation of the regional and munici-
pal CZ Staff; and the establishment of continuous duty rosters. The
authorities were required to prepare for evacuation in co-operation
with the SVK and senid daily reports to tihe Regional CZ Staff. 397
• By an Order dated 30 July, the lika Regional CZ Staff ordered the
Plaπki CZ Headquarters to increase the state of alert and inter alia
update plans for evacuation and relief. It ordered them to establish the
extenttowhichprivatecompanieswouldbeinvolvedwithimplement-
ing measures to assist with relocation and evacuation of the popula-
tion; to send regular reports and directed them to maintain “constant
contact” with the Army “to follow the situation on the ground.” 398
• By an Order dated 31 July, the Drniπ CZ Staff directed the Northern
Dalmatia directorate to inter alia introduce continuous duty for its
staff in light of the “new situation” and “focus …on evacuation
related preparation.” It noted that the list of the population to be
evacuated had been updated, fuel for evacuation had been issued in
November 1994, and ithe fitness of vehicleis had been checked. 399
• On 31 July 1995 the ‘RSK’ police (“drawing on the experience in
Western Slavonia”) issued an order to prepare for the evacuation
of key documents, including birth records; personnel files, defence
records and other materials. 400A clear indication that any evacua-
tion would not be tiemporary.
397RSK, Ministry of Defence, Order of the Republican Civilian Protection Staff, 15 July 1995,
Reply, Annex 190.
398RSK, lika Regional Civilian Protection Headquarters, Order of Mirko PoznanoviÊ, 30 July
1995, Reply, Annex i192.
399RSK, Drniπ Deptartment Ministry of Defence, Directorate on Measures for the Preparation
of Evacuation, 31 Juily 1995, Reply, Anniex 193
400
RSK,MinistryoftheInterior,OrdersignedbyMinisterToπoPaiÊ,31July1995,Reply,Annex194. 71
• On 31 July 1995, the ‘RSK’s’ Ministry of Defence noted inter alia
that the CZ staff were updating plans for protection and evacua-
tion. It noted that the staff was trying to prevent movements of the
population caused by rumours that had already caused “panic and
uncontrolled movemeint.” 401
• On 1 August 1995, MrkπiÊ ordered preparations for the immedi-
ate relocation of the SVK’s Main Staff, including plans to destroy
documents if necessiary. 402
• On 2 August 1995, the Republican CZ Staff ordered immediate
evacuation of material assets, archives and money. 403 The Order
provided that the evacuation of assets was to be carried out with
certain categories of the population. TV Knin broadcast organized
simulated evacuations from towns in both former Sectors North and
South to familiarize the population with the evacuation contingency
plan in the event of ifurther HV military siuccess. 404
• On the same day, 2 Aiugust 1995, the Repiublican CZ Staff requiest-
ed for reports, within 24 hours, regarding the updating of evacua-
tion plans, their preparation, distribution and the material support
405
required for the evaicuation.
• On 4 August 1995 the ‘RSK’ Supreme Defence Council ordered the
evacuation of the Serb population towards BH even before the ar-
rival of the Croatian Army. This decision was taken on the evening
of 4 August 1995. 406As set out in the Reply, this Order made no
mention of the shelling of civilians and provides further evidence
that the evacuation was not a result of artillery use by the HV, but
rather that it was triggered by the SVK’s inability to repel the HV
407
offensive.
3.60 TheRespondentdoesnotchallengethisevidence,itonlyputsforward
a very weak response. It simply states that these documents show that “their
401
RSK, Ministry of Defence, Military and Civil Affairs Sector, Regular Daily Report, 31 July
1995, Reply, Annex i159.
402See RSK, Serb Army General Staff, Order on the Relocation of the G© SVK, 1 August 1995,
Reply, Annex 195.
403See RSK, Republican Civil Defence Headquarters, Order on the Implementation of Prepara-
tion for the Evacuatiion of Assets, Archivies, and Records, 2 iAugust 1995, Reply,i Annex 196.
404Reply, para. 11.77.
405See RSK, Republican Civil Defence Headquarters, Request on the Implementation of Civil
Defence Plans, Evacuiation and Relief, 2 Aiugust 1995, Reply, iAnnex 197.
406
See RSK, Supreme Defence Council, Decision on Evacuation, 4 August 1995, Reply, An-
nex 198.
407Reply, para. 11.78.i 72
purpose was not to evacuate the entire Serb population to Bosnia and Herze-
govina or Serbia” and that a number of the documents indicate “preparations
408
for resistance.” Irrespective of where the evacuees were to go or whether
resistance was called for, the predominant purpose of these documents was to
show that evacuation plans had been prepared in advance and that there was a
policy that in the face of any military action by Croatia, the Serbs in the ‘RSK’
would leave. The Respondent doesn’t challenge that. It merely refers to three
documents filed with the Reply in an attempt to show that they did not relate
to evacuation. Even ia cursory look at thie documents provesi otherwise.
3.61 Referring to Annex 191, the Respondent seeks to argue that the docu-
ment shows a “routine preparation for defense and does not support the Ap-
409
plicant’s claim.” The document in qiuestion was issued oin 29 July 1995 by
the ‘RSK’s’ Republican Civil Protection Staff in preparation for the imminent
declaration of war by the ‘RSK’ that came the very next day. 410It required
inter alia the Regional CZ Staff to be activated immediately and for staff to be
kept on 24 hour call. The Municipal CZ Staff was directed to update relief and
evacuation plans and provide the Republican CZ Staff with a report the very
next day. Copies of the Order were sent to Regional CZ Staff in North Dalma-
tia, lika, Kordun, Banija, Eastern Slavonia, Baranja and Western Srem. The
document speaks fori itself. There is notihing “routine” abouti it.
3.62 Instead of referring to the several documents regarding evacuation
that referred to above and annexed to the Reply, the Respondent refers to An-
nex 166 of the Reply (an Order signed by General MrkπiÊ, Commander of the
SVK General Staff on 29 July 1995) and argues that the “order purported to
prevent departure of families of professional serviceman and the population
from the territory of the RSK.” 411 That is correct. This document was not put
forward to show evacuation plans, but to prove that there was an ongoing
departure of civilians and soldiers from the ‘RSK’ even before Storm com-
menced. Dated 29 July 1995, the Order also notes the deterioration of the
military and securityi situation and the riising panic in the ‘RSiK’.
3.63 Finally, the Respondent claims that Annex 198 to the Reply pertains
only to the evacuation of “people who were unfit for combat,” only from
Knin, Benkovac, Obrovac, Drniπ and GraËac and that the population was to
be evacuated to towns within the territory of the ‘RSK’. 412 This is irrelevant.
Several Annexes referred to above, and annexed to the Reply, are not referred
408Rejoinder, para. 73i5.
409Rejoinder, para. 73i6 (emphasis supplied).
410
See RSK, Supreme Defence Council, Proclamation of the State of War throughout the RSK,
30 July 1995, Replyi, Annex 157.
411Rejoinder, para. 73i7.
412
Rejoinder, para. 73i8. 73
to by the Respondent. These clearly demonstrate the existence of evacuation
plans and their activation and implementation. A number of witnesses at the
Gotovina trial testified to the ongoing departure of the Serbs, both before and
413
after the launch of Storm. The Trial Chamber also noted the existence of the
evacuation plans. 414
3.64 Some recently disclosed material by the Prosecution in the Gotovina
Trial sheds further light on this issue, namely:
st
i. Shorthand notes from 41 Enlarged Session of Supreme De-
fence Council (FRY), 14 August 1995: President MiloπeviÊ
stated that on the day of Operation Storm, the RSK was or-
dered to leave the Krajina without engaging the HV. The RSK
mingled within the columns of evacuating civilians. According
to MiloπeviÊ, the decision to evacuate caused the exodus, and
was made in spite of the fact that the RSK “had all conditions
provided for defence”. The RSK’s unreasonable and shameful
decision to withdraw was executed with “practically no resist-
ance and no casualties”. 415
rd
ii. Minutes from 43 Session of Supreme Defence Council (FRY) 29
August 1995: Item 1 on the session’s agenda was “[i]n view of
the fact that the territory of the RSK was abandoned pursuant to
a decision of the RSK leadership, due to which the defence of
413
Reply, para. 11.79 and the testimonies cited therein. As well as the testimonies referred to by
the Trial Chamber, paras 1512-1516. See also the Request for Return to the Republic of Croatia
filed by Æ.J., October 1995, Annex 16. He states that the evacuation was ordered by the “local
authorities.”
414The Trial Chamber in Gotovina noted inter alia that the RSK authorities had held evacuation
drills (e.g. Gotovina TJ, para. 1515); that there were reports of people being forced to leave
against their will; it noted the existence of several annexes set out in the Reply e.g. Reply, An-
nex 198 and others. Other documents presented at the Trial included the following exhibits:
D337 (RSK authorities requested UNHCR and UNPF assistance in evacuating 32,000 civil-
ians); D1516, para. 6 “in the course of 4 August the RSK government issued a public statement
calling the entire population in the endangered areas to evacuate, which caused a chaos within
the units and their dispersion, because the solders started leaving in order to go home and help
their families with evacuation”; D951 Ratko MladiÊ in a phone conversation with an unknown
person: “Well, in the north, things are good, but down south, it looks like they did something
stupid. They wrote an evacuation order for women and children, and that caused a mass exo-
dus.” The Chamber also considered the Testimony of MrkπiÊ who testified regarding the exis-
tence of evacuation plans, evacuation drills and the fact that he sought to prevent the departure
of soldiers and civilians in July 1995, before Storm. See Gotovina TJ, paras 1515-1516.
415
These documents were referred to in the Appellants Brief of Mladen MarkaË (Public Redact-
ed Version) ICTY IT-06-90-A, 5 October 2011, para. 318 (i) 0345-8372-8405 Eng, P. 27/36.
MiloπeviÊ goes on to say that the RSK did not defend the Krajina at all but, rather, according to
reports from police officers and citizens, ordered people to evacuate as soon as artillery prepara-
tion terminated (p. 28/36, 36/36). 74
the RSK ceased to exist, the SDC concludes that there is no more
basis for providing aissistance to the RSKi armed forces”. 416
3.65 As set out in the Reply, there was no policy to expel Serbs from the
occupied territories and various efforts were made to encourage the Serbs to
stay. On 4 August, using all forms of media, President Tuman appealed to
the Serbs to remain “at home.” 417Further, Croatia had in place legal protec-
tions for minority groups, both in the Constitution and in other legal provi-
sions.
(4) R esPonse To c laiMs a bouT The “v icTiMs oF storm ”
3.66 The Respondent claims that it provided a “convincing account of the
systematic attacks of the Croatian Army on the fleeing Krajina Serbs,” 418how-
ever, it admits that the Applicant criticises its sources of information (such
419
as they were) of being unreliable and inconsistent. In other words the Re-
spondent’s account of the targeting of the fleeing Serbs was far from convinc-
ing, and as set out in the Reply, the CHC Report relied upon by the Respond-
ent contains several discrepancies and inconsistencies which were noted in
420
the Reply. The Applicant’s stand with regard to the CHC Report has been
vindicated by the Triial Chamber’s views oin the Report. 421
(a) Croatia did not“ target fleeing Ser“b civilians
3.67 Once again the Respondent alleges that escaping Serbs were victims
of attack, however in the Rejoinder it now refers to “the systematic attack of
the Croatian forces,” 422 rather than attacks by “both Croatian military forces
and Croatian civilians” referred to in the Counter-Memorial. 423Once again it
relies on the CHC Reiport for these allegaitions.
3.68 Contrary to the Respondent’s claim, the Applicant did not “com-
pletely ignore the evidence presented” and make “just general remarks.” 424
416
Appellants Brief of Mladen MarkaË (Public Redacted Version) ICTY IT-06-90-A, 5 October
2011, para. 318 (iii) i0308-8830-8831: Enig. P. 1.
417See Appeal to Croatian Citizens of Serb Nationality from President Franjo Tuman, Zagreb,
4 August 1995, Repily, Annex 201.
418Rejoinder, para. 74i5.
419
Rejoinder, para. 75i1.
420Reply, paras 11.85, 11.91-11.92. Also more generally on the CHC Report see paras 2.65
and 11.67.
421
See para. 1.35, supra.
422Rejoinder, para. 74i5.
423
Counter-Memorial, piaras 1242 et seq.
424Rejoinder, para. 74i6. 75
The so-called general remarks were offered by way of an introduction, before
responding to the rest of the Respondent’s claims. 425As set out in the Reply,
the Applicant did not target “civilian” columns. Admittedly, some columns
(comprised of combatants and civilians) passed through areas of ongoing
fighting and were on occasion caught in the crossfire, however, civilians were
not targeted. The Applicant never stated that civilians become legitimate tar-
gets because they flee with soldiers, as the Respondent seeks to argue. 426The
Respondent claims that the targeting of civilians was confirmed by the Trial
427
Chamber in Gotovina. It provides no citation in support. This is yet another
example of its misrepresentation of the Trial Chamber judgment. As set out in
the Reply, Croatia maintains that it cannot be held responsible for any casual-
ties caused by the Bosnian Army’s 5 Corps which was also involved in the
fighting, or for any columns targeted in BH. There is nothing connected or
confused about this, as the Respondent alleges. 428 The Respondent’s allega-
tion that the “ABiH 5th Corps was attached to the HV” 429is dealt with in the
430
following Chapter.
3.69 As stated in the Reply, there were reports of Serb forces causing casu-
alties amongst the retreating Serb population. A Slovenian newspaper dated
7 August 1995 provides an account of airplanes of the so-called Army of Re-
public Srpska bombing a convoy of Serb soldiers and civilians retreating from
Croatia. It was reported that more than 20 persons were killed and over 100
injured during the three attacks. 431There are also Serbs who departed in the
columns who attest to this fact. In his statement, D.C., a driver to a Colonel
of the SVK states that upon arriving in Serbia his mother told him “that she
went in a column via Æirovac and that the tanks led by Mile Nova- koviÊ
were treading over a part of our column in order to pass towards Dvor as
th
quickly as possible, and the Muslims from the formations of the 5 Corps
attacked the column from the right flank, and there were casualties there.”
He states that at that moment the Croatian Army could not have attacked the
432
column in Æirovac, particularly not from the right side. Similarly, in her
statement, M.M. talks of the killing of her Serb neighbour, Nikola, by
“members of the Serbian army, that is, ‘Arkan’s men’” when he told them that
“he had no intention to fight for anyone any more.” 433
425Reply, para. 11.8.
426Rejoinder, para. 746. This issue has been addressed in para. 1.31, supra.
427Rejoinder, para. 747.
428Rejoinder, para. 748.
429Ibid.
430
Chapter 4, para. 4.39.
431News Report in the Slovenian Newspaper Delo, 7 August 1995, Annex 29.
432
Official Note of the Statement by D.C., Annex 19.
433Official Note of the Statement by M.M., Annex 20. 76
3.70 Once again the Respondent relies on the CHC Report in support of
its allegations. The Applicant had challenged the credibility and weight at-
tached to the CHC Report on a number of grounds, not least in the light of
the Respondent’s views regarding witness statements. The Applicant had also
noted that almost all the Respondent’s allegations with regard to the “killing
of Serbs while they were escaping in columns” were based on statements from
the CHC Report, which were not annexed and therefore it is not clear when
these statements were made, who made them, to whom were they made and
434
so on.
3.71 The Respondent admits now that the CHC Report “of course, cannot
provide the Court with names of each and every victim and perpetrator of the
genocidal acts, and therefore it cannot serve to the ICTY in examination of the
personal criminal liability. But it proves beyond a reasonable doubt that the
Serb refugee columns were intentionally attacked and that people were killed
in them.” 435 The Applicant has set out its views on this subject in Chapter 1.
Those are not repeated here.
3.72 Recognising the Applicant’s criticisms regarding its reliance on the
CHC Report, the Respondent has submitted twelve new witness statements
regarding the alleged Croatian attacks on refugee columns. 436The Applicant
437
has already set out its criticisms in this regard. The Applicant also submits a
few new witness statements from Serbs in the columns that illustrate inter alia
that the columns were made up of civilians and combatants; that those fleeing
were well treated; that some Serbs were made to leave by the Serb authorities,
often against their will and so on.
3.73 D.C., a driver to a Colonel of the SVK mentions the con- tinuing
involvement of the Serbian Army in the ‘RSK’s’ forces. Referring to the
negotiations at Topusko, regarding the surrender of the 21 stCorp, he states
that when their commander (»edomir Bulat) returned from the meeting with
the Croatian Army/HV (represented by General StipetiÊ) he directed them to
lay down their weapons. He recalls that General StipetiÊ ordered the Croatian
soldiers not to go among the Serb civilians. At one point General StipetiÊ
asked »edomir Bulat why he did not ask the civilians to return to their homes,
but Bulat said he could not send people back. D.C. states that General
StipetiÊ tried to persuade people to return to their homes and offered to per-
438
sonally escort them.
434Reply, paras 11.91, 11.92.
435Rejoinder, para. 751.
436
Rejoinder, paras 756- 760.
437See paras 1.45-1.47 and para. 3.7, supra. See also the Statement of M.O., 20 April
Annex 5 and the Statement of J.B., 21 March 2012, Annex 4.
438
Official Note of the Statement by D.C., Annex 19. 77
3.74 In his statement D.–. states that he and his family left their home
on 7 August 1995, and set off in the direction of VojniÊ, Gvozd and
Topusko and further on towards Serbia. He states that in Topusko, Gen-eral
StipetiÊ appealed to all the Serbs in the column to return to their houses,
guaranteeing them safety. The HV soldiers also urged them to return home
and members of the Croatian Red Cross provided them food. D.–. was one
of the early returnees.439
3.75 In her statement M.V. states that she only left for Serbia on 7 August,
after “seeing that the villagers from the neighbouring village of Perjasica
were leaving.” 440She mentions that prior to Storm she heard the ap-peals of
President Tuman “who called on the Serbian population over the radio to
remain at their homes, saying that nothing bad would happen to them.” She
states that she left home “before seeing the HV or the police, nor did they force
us to leave our houses” and that she only left because “everybody was leaving.”
3.76 T.C. states that the evacuation had been planned in advance of Storm,
and that he and the other villagers followed the plans. He states that as per
the plan, he and the others set off in a column towards Dvor na Uni. On
the way they encountered members of the Croatian Ministry of the Inte-rior
who asked him why they were going towards Bosnia, when he could go
back home. They told him that the President of Croatia had guaranteed that he
could return home safely. He states that the policemen provided those in the
column with food and water, but despite the offer to stay in Croatia he and the
others refused “because we were afraid of the Army of the Krajina SAO /Ser-
bian Autonomous District,/ which specifically insisted that we leave [Croatia]
immediately….” 441
3.77 It is noteworthy that the Respondent does not challenge the Appli-
st
cant’s account regarding the surrender of SVK’s 21 Kordun Corp and the
treatment of Serb soldiers and civilians in Topusko on 7 August 1995. 442The
Reports of the Croatian Military Police in this regard show that the Respond-
443
ent’s allegations regarding the treatment of those in columns is unfounded.
The Reports show that the Military Police in Topusko (i) provided security to
the moving columns of combatants and Serb civilians; (ii) transferred mem-
bers of the paramilitaries to the investigative judge of military courts; (iii)
439Official Note of the Statement by D.–., Annex 17. See also the Official Note of the
statement by N.G., Annex 18 and the Official Note of the Statement by M.J, Annex 21
440
Official Note of the Statement by M.V., Annex 22.
441
Official Note of the Statement by T.C., Annex 23.
44Reply, para. 11.88.
44Report on the Employment of RH Armed Forces Military Police Units in Storm, 11 August
1995, Annex 30. This refers to 4 columns having left Croatia and 10 moving through Croatia.
Similar Reports also exist dated 10 August 1995, 12 August 1995 and 13 August 1995. 78
took the injured to medical centres; (iv) took civilians to reception centres ; 444
(v) provided traffic support and (vi) filed a criminal report against an HV sol-
dier found to have fired at one of the columns. The individual was sent to an
445
investigating judge.i
3.78 In light of all these facts, the Respondent’s allegation that the “kill-
ings sent a message to those who survived that return was not possible” and
clarified “the meaning of the words of Croatian President at the Brioni Is-
land” 446is clearly unsustainiable.
(b) There was no “s“ystematic killing”
3.79 The Rejoinder repeats a number of the generalised allegations it made
in the Counter-Memorial without engaging with the arguments set out in the
Reply. 447Once again, Croatia denies that it carried out a “systematic killing
campaign” against the Serbs. The Respondent has still not provided any evi-
dence to show that there was a systematic campaign and the Brioni transcript
provides nothing in isupport of this contiention.
3.80 The Respondent arguies that the Applicanti “ignores the evidenice pre-
sented in the Counter-Memorial.” 448 This is incorrect. After examining the
evidence, the Applicant criticised the Respondent’s extensive reliance on the
CHC Report. With respect to some alleged killings in Sector South, the Re-
spondent relied on an erroneous reproduction of a CHC list. For example, in a
number of instances, the Respondent stated that more civilians were killed in
particular locations than the Report set out. The Respondent also made mis-
takes with respect to the names of victims and villages were the alleged kill-
ings are said to have occurred. Some allegations failed to specify a name, date
and or location. With respect to other allegations, the Respondent failed to cite
any source at all, making only blanket assertions like “Killings were commit-
ted in all other places where Serbs stayed behind.” The Applicant noted these
449
and other discrepancies in the Reply. Similar flaws were noted with respect
to the allegations regarding Sector North, which was supported by even less
evidence. 450These are not merely “methodological flaws” 451and the Respond-
444See the Order of the Ministry of the Interior Establishing Reception Centres, 5 August 1995,
Annex 31 that provides that Reception Centres were to be established immediately, and were to
be organised in accoirdance with the Geneiva Conventions on tihe Treatment of Civiliians.
445
See Report on the Employment of RH Armed Forces Military Police Units in Storm, 11
August 1995, Annexi 30.
446Rejoinder para. 761i.
447
Rejoinder, paras 76i2 et seq.
448Rejoinder, para. 76i4.
449
Reply, paras 11.95-i11.97 (internal citatiions omitted).
450Reply, paras 11.98-i11.100 (internal citiations omitted).
451Rejoinder, para. 76i7. 79
ent has failed to respond to them. The Respondent also failed to provide any
evidence that this wais a “systematic” or i“targeted” activity.i 452
3.81 It is apparent that the Respondent noted these criticisms because once
again it relies on new testimony to make its case. Recognising that it has
failed to provide any particulars about the death of the victims, such as their
full names, exact place and date of their killings, data about perpetrators, and
so on, it accuses the Applicant of misunderstanding the “methods of proof
required for a dispute concerning the application of the Genocide Conven-
tion.”453 This has been dealt with in Chapter 1. Even if the Applicant accepted
the Respondent’s argument, the incomplete and inaccurate details provided
by the Respondent are insufficient to make out a case of genocide, let alone
defend one.
3.82 Recognising the insufficiency of the evidence, the Respondent states
that it did not have access to the “crime scenes of Operation Storm” and that
454
UN observers were also denied free movement. It seeks to differentiate its
claim from the case before the ICTY. 455 Once again, this issue has been dealt
with in Chapter 1. The Reply dealt with the allegations regarding the restric-
tion of movement of ithe UN observers. 456
457
3.83 Contrary to the Respondent’s assertion, the Applicant had noted
the ICTY witness testimonies that had been relied upon in the Counter Me-
morial. 458It had also set out its views on the evidentiary value of these. It was
noted that at the time of drafting the Reply, there had been no judgment of
the ICTY and no assessment of the reliability or accuracy of the factual state-
459
ments and testimony on which Serbia relied. By so stating, the Applicant
did not accept the tiestimony.
3.84 Now the Respondent refers to certain factual findings made by the
Trial Chamber in the Gotovina case with respect to specific murders and kill-
460
ings. As stated earlier, ithe Trial Chamber’s jiudgment is subject ito an ongo-
ing appeal. It may be that some of these deaths were attributable to the acts of
individual members of the HV and the Croatian MUP, and it may be that some
of those amounted to the war crime of murder this however does not entail
452
Reply, para. 11.95.i
453Rejoinder, para. 76i4.
454Rejoinder, paras 76i5-766.
455Rejoinder, para. 76i6.
456Reply, para. 11.85.i
457Rejoinder, para. 76i7.
458Reply, para. 11.95,i footnote 217.
459
Reply, para. 2.33.
460Rejoinder, para. 76i7. 80
the responsibility of the Applicant State for genocide. In any event, the Trial
Chamber found that “the common objective [of the JCE within the Croatian
government] did not amount to, or involve the commission of the crimes of
persecution (disappearances, wanton destruction, plunder, murder, inhumane
acts, cruel treatment, and unlawful detentions), destruction, plunder, murder,
inhumane acts, and criuel treatment.” 461
3.85 As regards the Respondent’s allegations regarding Croatian investi-
gatory policy after Operation Storm, the Trial Chamber received testimony
462
from several witnesses and examined documentary evidence in this regard.
The testimony of Christopher Albiston, an independent consultant special-
izing in policing, security and intelligence and an expert in conflict and post-
conflict policing is particularly noteworthy. He testified that post Operation
Storm there was a functioning criminal justice system in which the Croatian
authorities were genuinely attempting to address crime, and the police were
playing their role in recording and passing on details of crimes in the relevant
areas. He saw no evidence of organized failings to re-establish law and or-
der, or deliberate obstruction of this task, by the Croatian authorities. Nor
was there an attitude of tolerance or indifference on the part of Croatian au-
thorities towards crimes such as looting, burning and killing, although there
463
was evidence of failings by individual police officers. The Trial Chamber
noted the efforts of the Croatian law enforcement authorities to investigate
and prosecute crimes, as well as the obstacles they faced, and noted inter alia
“that the insufficient response by the Croatian law enforcement authorities
and judiciary can to some extent be explained by the […] obstacles they faced
464
and their need to perform other duties in August and September 1995.” The
Trial Chamber could not positively establish that the Croatian authorities had
a policy of non-investigation of crimes committed against Krajina Serbs dur-
465
ing and following Opeiration Storm.
(c) Serbia’s alle“gations of looting “and destruction are“ denied
3.86 It is noteworthy, that the Respondent’s expansive allegations regard-
ing looting and the destruction of property have now been significantly wa-
tered down, meriting a mere page in the Rejoinder. In response to the Appli-
cant’s detailed response, 466the Rejoinder sets out two paragraphs referring to
the Counter Memorial, 467without engaging in any response. The contents of
461Gotovina TJ, para. 2321. Seei further Chapter 4, ipara. 4.13.
462Gotovina TJ, paras 2100 et seq.
463
Gotovina TJ, para. 2108 (inteirnal citations omitteid). See also para. 21i37.
464Gotovina TJ, para. 2203.
465
Ibid.
466Reply, paras 11.103i - 11.108.
467Rejoinder paras 773i-774 relying on Couinter Memorial, paras i1312-1325. 81
the Reply are maintained in their entirety. The evidence demonstrates that the
alleged acts were not “tolerated” or “planned” by the Croatian government. 468
The Applicant does not assert that no looting or destruction took place; rather
it is clear that there is no evidence that the Croatian government planned, or-
dered, committed, aided or abetted, in the destruction and looting of Serbian
property. looting was not condoned or otherwise supported by the Croatian
government.
3.87 The Respondent’s reliance on the ICTY judgment is of no help
either. Once again, the Respondent’s characterisation of the Trial Court’s
judgment needs to be treated with caution. While the Trial Chamber found
22 specific incidents of destruction of property owned or inhabited by
Serbs in Sector South, the Trial Chamber found, that the evidence before
it did
“..not indicate that members of the Croatian political and military
leadership intended that property inhabited or owned by Krajina
Serbs should be destroyed or plundered. Further, it does not in-
dicate that these acts were initiated or supported by members of
the leadership. Rather, the evidence includes several examples of
meetings and statements […], indicating that the leadership, in-
cluding Tuman, disapproved of the destruction of property. Based
on the foregoing, the Trial Chamber does not find that destruction
and plunder were within the purpose of the joint criminal enter-
prise.” 469
3.88 Further, as set out earlier there were reports of the Serbs destroy-
ing houses and buildings while they were retreating before the Croatian
Army. 470 The Belgrade daily naπa borba published a statement by ‘Kra-
jina’ soldiers who described their retreat before the arrival of the HV as
follows:
“Retreating toward Srb and Drvar, we passed through deserted places. There
were no dead or wounded civilians or soldiers, just empty houses and do-
mestic animals. Explosions were heard occasionally in some buildings which
were blown up by the Serbs themselves, after their departure, so they would
468
Reply, para. 11. 103.
46Gotovina TJ, para. 2313.
470See the Official Note of the Statement by N.G., Annex 18. He states that while he was still
in the column he learnt that his house had been set on fire by Serb soldiers. He left for
Serbia with the others, but returned as soon as he could and rebuilt his house. See also the Offi-
cial Note of the Statement by M.J., Annex 21. He states that “when the “Storm” started, I
decided to leave my house on 06 August 1995, at around 6 o’clock in the afternoon because I
saw that everybody was leaving.” later when he was in Serbia he learned that his house and
others had been destroyed by the rebel Serb authorities. 82
not end up in Croatian hands - hospitals, post offices, depots with weapons
471
which they did not mainage to evacuate.”
(5) c RoaTia d id noT iMPose a ny baRRieRs To The R eTuRn oF seRb R eFugees
3.89 Croatia did not impose any legal barriers on the return of Serb refu-
gees. During this time the Applicant took all the reasonable and necessary
measures it could in the difficult circumstances. The Applicant has set these
out in the Reply. In particular, the Reply responded to the Respondent’s al-
legations that in an “effort to ensure that Serbs would disappear from Krajina,
the Croatian Government re-populated the region with Croats”; it ignored UN
resolutions that called for the return of the Serbs; it took legislative measures
that targeted the Serbs; and it used its criminal justice system in a discrimina-
tory manner. 472
3.90 Reading through the rhetoric in the Rejoinder, it is clear that the Re-
spondent merely repeats its earlier allegations regarding allegedly “restric-
tive” executive and legislative measures relating to the right to return; hous-
ing473 and criminal impunity for perpetrators of crime. 474 All of these issues
were dealt with in thie Reply.
3.91 The Respondent criticises the Applicant for citing recent and current
developments and documents and states that the “reports from the relevant
475
time are particularly important to this case.” The Applicant does not dispute
this, however in the light of significant changes since the time of reporting,
the Applicant is of the view that more recent Reports are equally important,
especially since a number of laws and policies referred to by the Respondent
were subsequently aimended or repealed ito facilitate return.i
3.92 AssetoutintheReply,duringthewarCroatiaprovidedshelterforover
onemillionpeople.TheCroatianGovernmentwasinfavouroforganisedreturn
once minimum conditions for return, including basic infrastructure and restora-
tion of institutions necessary for maintaining law and order, were ensured. 476
There was nothing in the legislative or administrative framework that precluded
individuals returning at any time of their choice, notwithstanding the damage
to the infrastructure in war-torn areas - if they so wished. Individuals were also
471V. MilovanoviÊ, O. MamuziÊ, Leci sa uputstvima za povlaËenje, [Pamphlets with Instruc-
tions for Retreat], inaπa borba (Belgrade), 12-13 Aiugust 1995, 9.
472
Reply, paras 11.109i et seq.
47Rejoinder, paras 77i6-780, 816, 820, 8i21.
47Rejoinder, paras 81i6, 822, 823.
475
Rejoinder, para. 77i5.
47See letter from Minister Mate GraniÊ to German Foreign Minister Klaus Kinkel, 25 August
1995, Reply, Annex i215. 83
able to return on humanitarian grounds. 477The return process started as soon as
the appropriate conditions were set. The Reply sets out details of the various
programmesinplaceforthereturningrefugees. 478In1998,thegovernmentalso
adopted a “Procedure for Individual Return of the Persons Who Left the Repub-
lic of Croatia" and "Mandatory Instructions on obtaining required Documents
for the Procedure for the Individual return of Persons who left the Republic of
Croatia.” This was advertised in the Serbian paper Politika and provided the
methods by which individuals who sought to return to Croatia could do so. 479In
any event, Serbs began returning to the area in 1995 itself. Bilateral and inter-
national agreements aimed at affecting a two-way return of refugees was also
referred to in the Reply. 480 The Respondent notes the return of Serb refugees
but alleges that Croatia is “avoiding to inform” how many where of Serb eth-
nicity.481 However just two paragraphs later it sets out a number - it states that
482
“only 68,000 have returned to Croatia.” By the end of 2011, 389,172 persons
hadreturnedtoCroatia,ofwhich246,142wereIDPsand143,030wererefugees.
Of these, 132,068 were registered returning Serbs (107,668 refugees and 24,940
IDPs). Furthermore, as Serbia is well aware, a bilateral process of data exchange
between Croatia and Serbia, facilitated by the UNHCR, was concluded in No-
vember2011.TheresultsoftheprocessareoutlinedinaUNHCRReport,which
wasdiscussedandagreeduponwiththegovernmentsofSerbiaandCroatia.Asa
result of this, UNHCR identified and referred 15,285 persons for de-registration
after they had achieved at least one durable solution benchmark, using the Ser-
bian2010refugeedatabaseasastartingpoint.Thedataexchangeprocessformed
a basis for the elaboration of the Regional Programme on Durable Solutions for
Refugees and Internally Displaced Persons, adopted on 7 November 2011 by
Bosnia and Herzegovina, Croatia, Montenegro and Serbia. 483
3.93 It is noteworthy that under Serbian law refugees are bound by the
same requirements regarding military service as citizens. As a result some,
refugees from ‘Krajina’ were inducted in to military service in Serbia and
upon mobilization were sent back to Eastern Slavonia in Croatia. This was a
much greater obstacle to their return, and was an obstacle created by the Re-
484
spondent.
477
Reply, para. 11.112i.
478Reply, para. 11.113i.
479
Procedure for Individual Return of the Persons Who left the Republic of Croatia (Manda-
tory Instructions), iZagreb, 14 May 1998i, Annex 32.
480Reply, paras 11.114i, 11.119.
481
Rejoinder, para. 81i6.
482Rejoinder, para. 81i9.
483
Report on the Exchange of Data Relevant for Current and Former Croatian Refugees in
Serbia - Process andi Results, Novemberi 2011, UNHCR.
484See Report of the Status of Human Rights in Serbia, December 1995, Helsinki Committee
for Human Rights Serbia, para. 93-94 and 98 (which refers to the Serbian law on Refugees,
Official Gazette 18/92i, Art. 2(2)). 84
485
3.94 The Respondent once again misrepresents Croatian property law.
This issue was dealt with in the Reply. 486The rationale behind the promulga-
tion and implementation of the Law on Temporary Takeover was the protec-
tion of properties, as well as the interests of their owners and potential credi-
tors, irrespective of ethnicity. It sought to protect the relevant properties from
theft and vandalism. The Trial Chamber in Gotovina, noted the Explanation
of the law that stated:
“many Croatian citizens of Serbian nationality left [Croatia] and […]
left behind a large quantity of valuable property […] [that was] sub-
jected to various forms of theft and damage, and the relevant bodies
of [Croatia] - despite all their efforts - cannot fully and successfully
protect this property and thereby also the interests of its owners, the
interests of possible creditors and especially the interests of [Croatia]
487
in whose territory iit is situated.”
3.95 Given the large number of refugees and IDPs in Croatia it was en-
tirely reasonable to make temporary provisions for those properties to be
occupied. 488 The law in question was agreed upon, and monitored by the
international community, and was not criminal in nature or objective. 489
3.96 The OSCE has been monitoring aspects of the Croatian Housing Care
Programme and in its November 2011 Status Report it found inter alia that
Croatia had “fully accomplished” the benchmarks set by the OSCE, in order
to resolve the outstanding issue of former occupany/tenancy rights holders
490
(OTR) wishing to return to Croatia. Having established that the Programme
had gone beyond the OSCE benchmarks and that Croatia had “fully accom-
plished” what was agreed that there was no need to continue to monitor the
Programme. 491In this context, the Respondent’s reference to a Council of Eu-
485Rejoinder, para. 81i6.
486
Reply, paras 11.115i-11.118.
487Gotovina TJ, para. 2070.
488Reply, para. 11.116. The Applicant points out that between 1991 and 1995 Croatia pro-
vided shelter for over one million people, (including 550,000 internally displaced persons and
400,000 refugees friom the region).
489See for example, the European Court of Human Rights, in SaratliÊ v. Croatia, 35670/03,
ECtHR, 24/10/06, affirmed the State’s “legitimate interest in housing displaced persons in the
property left behind by persons who left Croatia during the war ”. It further held that “the
system which allows such persons to remain in the occupied property before they have been
provided with adequate housing is not in itself in contradiction with the guarantees contained
in Article 1 of Protocol 1, providing that it ensures sufficient safeguards for the protection of
the applicant’s propeirty rights.”
490
Status Report of the Head of the OSCE Office in Zagreb to the OSCE Permanent Council,
22 November 2011, iAnnex 33.
491Ibid., pp. 7-8. 85
492
rope Report of 2010 is clearly outdated. These programmes and develop-
ments demonstrate that that Croatia did not enact legal barriers to the return of
Serb refugees and there has been considerable headway made in ensuring that
the rights of OTR holiders has been upheldi.
3.97 The Respondent also makes some generalised comments on crimi-
493
nal impunity for the perpetrators of crimes against Serbs. These allegations
were dealt with in the Reply. 494 Croatia is committed to investigation, pros-
ecution and punishment of all war crimes committed during the conflict in
Croatia, regardless of the ethnicity of the perpetrators. The Reply noted that
the Respondent’s failure to acknowledge the ongoing co-operation between
the parties with regard to war crimes prosecution as well as national commis-
sions for missing person. The Respondent admits this 495but alleges continuing
impunity. 496
497
3.98 The OSCE also monitors war crimes proceedings in Croatia. The
OSCE notes that the Croatian Chief State Attorney’s War Crimes database is
the “core resource for analyzing Croatia’s established track record in inves-
tigating and prosecuting domestic war crimes cases.” 498 It notes the “signifi-
cant efforts of Croatia” in the prosecution of war crimes. Its analysis shows
that Croatia is “clearly succeeding in ensuring that war crimes proceedings
are conducted in an impartial manner by the independent judicial bodies.” It
states that the system is further strengthened by institutions that are capable
of investigating crimes in a “transparent and efficient manner.” 499The Report
also notes the ongoing regional co-operation, and Croatia’s active participa-
tion in enhancing this. It states that inter-state co-operation between Croatia
and Serbia has been “firmly and consistently enhanced during the last years”
500
and sets out details of this. In furtherance of the bilateral co-operation be-
tween the parties, the representatives of the State Attorney’s Office of Croatia,
along with War Crimes Prosecutor’s Office of Serbia visited Denmark from
23 to 25 January 2012, to question members of the Danish peace-keeping bat-
talion, stationed at Dvor na Uni in August 1995, where unidentified military
492Rejoinder, para. 82i0 and relatedly 821.i
493Rejoinder, paras 816, 817, 822, 823. It is noteworthy that the 1996 Human Rights Watch
Report cited in support of its allegations was one of the documents that the Gotovina Trial
Chamber disregarded, inter alia on the ground that “the majority of evidence contained therein
comes from indirect isources”. See Gotovina TJ, para. 55.
494Reply, paras 11.122i and 2.69.
495
Rejoinder, para. 81i7.
496Rejoinder, paras 82i2-823.
497
Status Report of the Head of the OSCE Office in Zagreb to the OSCE Permanent Council,
22 November 2011, iAnnex 33.
498Ibid, (p. 1).
499
Ibid.
500Ibid, (p. 3). 86
members killed twelve civilians, most of whom were handicapped. Further
501
cooperation betweeni the two prosecutioin offices will continuie in this case.
3.99 The OSCE Report also refers to the improved legislative framework
for the prosecution of war crimes, which inter alia provides for an increased
efficiency and impartiality in both investigation and prosecution. Priority cas-
es have been identified at the national and regional levels and special teams
502
have been established to investigate the most sensitive cases. It also notes
efforts to address pireviously un-investiigated and unprosecuited crimes. 503
3.100 AsregardsMissingPersons,sincetheearly1990s,Croatiahasworked
systematically to identify missing persons, and the resolve and political will
to address this issue remain strong. Various initiatives and other measures
implemented by the competent bodies in Croatia have led to the resolution of
the majority of cases involving detained and missing persons. In December
2011, a meeting was held between representatives from the Directorate for
the Imprisoned and Missing of the Croatian Ministry of Veterans’ Affairs, the
Committee of the Serbian Government for Missing Persons, the Institute for
Missing Persons in Bosnia and Herzegovina and the International Committee
for Missing Persons regarding measures for speeding up the process of finding
missing persons. 504
CONCLUSION
3.101 As set out before, the primary purpose of Operation Storm, as a mili-
tary and police operation, was to establish the territorial integrity of Croatia.
This was accepted by the Trial Chamber that found that “the primary focus of
the [Brioni] meeting .... [was] whether, how, and when a military operation
against the SVK should be launched”. 505 Similarly, the Chamber acknowl-
edged that “all measures taken at the time, were taken in the context of an
501
See Croatia’s Periodic Report to the European Commission on the Fulfilment of Obligations
Arising from Chapter i23, “Judiciary and Fiundamental Rights”, Miarch 2012, Annex 34i.
502See Status Report of the Head of the OSCE Office in Zagreb to the OSCE Permanent Coun-
cil, 22 November 2011, Annex 33, (p. 4). The Report notes that a significant number of cases
have been transferred to four specialised war crimes courts and notes other procedural and
substantive improvements, like improved witness and victim support and NGO’s monitoring
and capacity building.i (pp. 4-6).
503Ibid, (p. 5). It notes that increased efforts in this field resulted in the opening of new cases
in 2011, like a case against MerËep charged with command and individual responsibility for
the torture and death of more than 50 predominantly Serb civilians at the end of 1991. Other
investigations have bieen launched regardinig events in Sisak ini 1991.
504Croatia’s Periodic Report to the European Commission on the Fulfilment of Obligations
Arising from Chapter i23, “Judiciary and Fiundamental Rights”, Miarch 2012, Annex 34i.
505Gotovina TJ, para. 1990. 87
armed conflict that had been ongoing in the territory of the former Yugoslavia
for many years and of Croatia having faced an occupation of part of its terri-
tory.”506
3.102 It is plain that the Croatian Government had no plan to destroy the
Krajina Serbs, by Operation Storm or otherwise. No such plan was drawn up
at the Brioni meeting, there was no indiscriminate shelling of Serb civilians by
the Croatian forces, and the HV’s use of artillery was neither extensive nor in-
discriminate. A fear of impending military defeat, a refusal to accept Croatian
sovereignty and the evacuation orders were just some of the motivators for the
departure of the Serbs. There was no plan to target fleeing Serbs civilians and
no systematic killing of the Serbs who remained. The Respondent’s claim of
genocide is hopelessi and without any founidation.
3.103 Croatia took measures to prevent unlawful acts, and initiated investi-
gations and legal proceedings to punish individual perpetrators of such acts.
Croatia did not adopt measures to target the Serbs with a view to ensuring
that they did not return. It adopted necessary and appropriate measures to deal
with the difficult situation it found itself in 1995, regarding both the influx of
refugees and the presence of IDPs as well as housing. These measures were
monitored by the intiernational community.i
3.104 As more fully discussed in the following Chapter, with respect to
each alleged method of implementing its “genocidal intention”, the actions
taken by Croatia, both before and after the Brioni Meeting, cannot possibly
justify a claim that Croatia was engaged in any criminal activity, let alone a
genocidal one.
50Gotovina TJ, para. 2309. 88
CHAPTER 4
THERE wAS NO GENOCIDE AGAINST SERBS IN THE ‘RSK’ AND
NO RESPONSIBILITY Of CROATIA
SECTION I: INTRODUCTION
4.1 The Respondent has elected to address the evidential and legal is-
sues in relation to the Counter-Claim together in Chapter VIII of the Re-
joinder. This is in contrast to the structure it chose to adopt when it first
pleaded the Counter-Claim in its Counter-Memorial (see Chapters xIII and
xIV), and to the structure which the Applicant adopted when responding to
the allegations in its Reply (see Chapters 11 and 12). This merging of the
issues in its Rejoinder has enabled the Respondent to gloss over a number
of legal issues which fundamentally undermine its Counter-Claim. The Ap-
plicant maintains the division of evidential and legal issues in this Addi-
tional Pleading so as to highlight the multiple and manifest weaknesses in
the Respondent’s case.
4.2 In this Chapter the Applicant addresses the legal issues which arise as
a consequence of the evidential analysis set out in Chapter 3, including those
which have been ignored or understated by the Respondent. The following
key conclusions can ibe drawn from this anialysis:
a. As a matter of law, there is no basis for a finding of genocidal in-
tent by the Croatiani political and militaryi leadership.
b. As a matter of law, there is no basis for a finding that genocidal acts
within the meaning of Article II(a)-(e) of the Genocide Conven-
tion were committed by Croatian armed forces. The Respondent’s
case is misconceived in law with regard to forcible displacement
and other acts which it asserts are capable of being genocidal, and
it continues to overlook the significance of the JCE findings in
Gotovina for its pleaded casei.
c. Any proper comparison of the Claim and Counter-Claim demon-
strates that it is wholly implausible for the Respondent to assert
genocide in relation to Operation Storm whilst maintaining that its
own systematic and lengthy campaign against Croat civilians, con-
ducted by way of illegal military incursions into Croatian territory,
did not amount to genocide. Storm was a military operation which
was designed to regain control of Croatian territory illegally occu-
pied by rebel Serbs, an objective far removed from any genocidal
intent or conduct. i 89
SECTION II: THE CRIME Of GENOCIDE
(1) The M enTal e leMenT : n og enocidal inTenT
(a) The Protected G“roup
4.3 The Respondent argues that the ‘Krajina’ Serbs represented a distinct
geographically located community in an area which was of immense impor-
tance to Croatian Serbs and the historical centre of Serbian life in Croatia for
centuries.507It is said that the Applicant does not challenge this, or its legal
consequences. 508That is wrong and misleading: the Applicant challenged it
509
expressly in its Reply and maintains the same position in this Additional
Pleading. For the reasons already set out in earlier pleadings, 510the ‘Krajina’
did not have the signiificance for Serbs whiich the Respondent niow asserts.
4.4 As a matter of law, the Applicant accepts (1) that Croatian Serbs con-
stituted a separate national or ethnic group and (2) that the Serb civilian popu-
511
lation living in the ‘Krajina’ represented a substantial part of that group.But
if what the Respondent seeks to assert - and this is not clear - is that the ‘Kra-
jina’ Serbs were themselves a separate ethnic or national group, or that they
had a specific geographical connection to the ‘Krajina’ which is in some way
relevant to the allegation that any forcible displacement of them from that lo-
cation would amount to genocide, that is not accepted either as a matter of law
or fact. The important legal point is the one on which there is no dispute: that
if there had been a genocidal plan to physically destroy the ‘Krajina’ Serbs,
that would constitute an intention to destroy part of a national or ethnic group.
There was as a matter of fact no such plan, and the Applicant fails to see the
relevance of the Respondent’s assertions as to the location or significance of
the group.
(b) The Relationsh“ip Between Motive a“nd Intent
4.5 The Respondent asserts that the Applicant has confounded the con-
cepts of ‘goal’ and ‘intent’ and that this is in some way significant for the
present case. This wholly semantic objection is baseless and irrelevant. The
Applicant well understands the difference between these terms and recognises
that there may, in certain cases, be a significant distinction between a person’s
‘goal’ (or motive) and the acts which they may be taken to have intended.
50Rejoinder, para. 69i0.
50Ibid.
509
Reply, paras 10.10-i10.11; 11.3; see aliso para. 3.3, supra.
51See also Memorial, Cihapter 2, especially iPlate 9 at p. 64.
511
Reply, para. 12.2. i 90
But in the present case the Respondent squarely alleges that there was an ex-
plicit and express agreement to commit genocide by physically destroying the
‘Krajina’ Serbs which was formed at the Brioni meeting and which, it says,
is evidenced by the transcript of that meeting. This is not a case in which the
Respondent alleges that, hidden beneath a ‘goal’ which was lawful on its face,
was a genocidal intenition.
4.6 For that reason, the distinction which the Respondent seems con-
cerned to articulate is wholly irrelevant. If the Respondent is right about its
interpretation of the Brioni meeting minutes, then it was both the goal and the
intention of the Applicant to commit genocide. If the Respondent is wrong,
then there was no genocide and no goal or intention to achieve the physical
destruction of the ‘Krajina’ Serbs. In meeting the allegation levelled at it, the
Applicant is entitled and bound to say that both the goal and the intention of
the Applicant was noti the physical destrucition of the ‘Krajina’i Serbs.
(c) The Respondent’“s Case on Intent
4.7 The Respondent’s case on intent is that “the plans for the destruction
of the Serb population in Krajina were finalized at the meeting held on Brioni
Island”.512 The Respondent relies on two evidential sources to substantiate
what it says is the gienocidal intent in thiis case:
a. The transcript from ithe Brioni meeting; iand
b. The subsequent acts of the Croatian military, said to confirm the in-
terpretation of the Brioni meeting which the Respondent contends
for.
The Brioni Meeting
4.8 The Applicant has set out a detailed factual analysis of the Brioni
meeting transcript in Chapter 3, highlighting the selective, misleading and
flawed approach the Respondent has taken to the interpretation of that docu-
ment. The Applicant maintains that there was no criminal plan of any type
formulated at Brioni.i
4.9 For the purpose of the present case, the Respondent must prove fully
conclusively 513that a genocidal plan was agreed: one that intended to physi-
cally destroy the ‘Krajina’ Serbs. It does not suffice as a matter of law for the
Respondent to establish that there was a criminal plan formulated at Brioni to
commit war crimes or even crimes against humanity: for example, a plan to
51Rejoinder, para. 71i3.
51Bosnia, para. 209. 91
forcibly remove all the Serbs from th514Krajina’ under threat of serious harm
if they did not leavei is insufficient.
4.10 This Court in the Bosnia case emphasised the significance of the re-
quirement that there be an intent to physically destroy the relevant group, cit-
ing the StakiÊ judgment from the IiCTY:
“Neither the intent, as a matter of policy, to render an area “ethni-
cally homogeneous”, nor the operations that may be carried out to
implement such policy, can as such be designated as genocide: the
intent that characterizes genocide is “to destroy, in whole or in part”
a particular group, and deportation or displacement of the members
of a group, even if effected by force, is not necessarily equivalent to
destruction of that group, nor is such destruction an automatic con-
sequence of the displacement. This is not to say that acts described
as “ethnic cleansing” may never constitute genocide, if they are such
as to be characterized as, for example, “deliberately inflicting on the
group conditions of life calculated to bring about its physical destruc-
tion in whole or in part”, contrary to Article II, paragraph (c), of the
Convention, provided such action is carried out with the necessary
specific intent (dolus specialis), that is to say with a view to the de-
struction of the group, as distinct from its removal from the region. As
the ICTY has observed, while “there are obvious similarities between
a genocidal policy and the policy commonly known as ‘ethnic cleans-
ing’” (KrstiÊ, IT-98-33-T, Trial Chamber Judgment, 2 August 2001,
para. 562), yet “[a] clear distinction must be drawn between physical
destruction and mere dissolution of a group. The expulsion of a group
or part of a group dioes not in itself suiffice for genocide.” i(StakiÊ, IT-
97-24-T, Trial Chambeir Judgment, 31 Julyi 2003, para. 519.)” 515
4.11 The Respondent has not adduced any evidence which is capable of
establishing the specific intent for genocide. Even the Gotovina judgment on
which the Respondent repeatedly relies undermines its own case on this issue.
The Applicant reiterates that the findings in the Gotovina case are subject to
an appeal by the Defence, but even if those findings are upheld they do not
assist the Respondenit.
4.12 The ICTY was of the view that senior members of the Croatian gov-
ernment, including President Tuman, were party to a JCE. The Applicant
makes two observatioins about the conclusiion there was such a iJCE:
514
Prosecutor v. StakiÊ, IT-97-24-T, Judgment of the Trial Chamber of 31 July 2003 (herein-
after “StakiÊ”), para. 519.
51Bosnia, para. 190. 92
a. First, the findings of the ICTY are currently subject to an appeal;
and
b. Second, even if the Appeals Chamber upholds this particular as-
pect of the judgment, the Applicant observes that that Chamber
specifically rejected the application of the Republic of Croatia to
intervene in the appeal proceedings to make submissions on the
516
findings about the scope of the JCE. There is a point of funda-
mental legal importance for the ICTY proceedings which arises
out of this situation: the ICTY expressed a positive view that
persons not indicted before it were complicit in a JCE to commit
crimes against humanity; that view has potential consequences
for the Croatian State; it is wrong in principle for a court to ex-
press such views whilst refusing to hear submissions offered by
the State which stands to be directly affected by them. Accord-
ingly, the Applicant submits that this Court should approach any
views expressed by the Appeal Chamber which implicate senior
members of the Croatian government in a JCE with a high de-
gree of caution.
4.13 In any event, in the ICTY’s view the common objective of any JCE
within the Croatian government was considerably more limited than con-
tended for by the Prosecution. The Prosecution had alleged that the com-
mon objectives of the JCE had included persecution by murder, inhumane
acts, cruel treatment, disappearances, plunder or wanton destruction. The
517
Trial Chamber rejected those arguments in their entirety and found:
“that the common objective did not amount to, or involve the com-
mission of the crimes of persecution (disappearances, wanton de-
struction, plunder, murder, inhumane acts, cruel treatment, and
unlawful detentions), destruction, plunder, murder, inhumane acts,
and cruel treatment.”
4.14 The common objective of the JCE was, according to the Trial
Chamber’s findings, limited to crimes directed at removing, in contrast to
physically destroying, the Serb population in the ‘Krajina’. 518
4.15 As this Court recognised in Bosnia, citing the ICTY judgment in
KupreπkiÊ, genocide is in essence an extreme form of the crime against hu-
516Decision on Motion to Intervene and Statement of Interest by the Republic of Croatia, 8
February 2012.
517
Gotovina TJ, para. 2321.
51Ibid., paras 2310-2314.i 93
manity of persecution of individuals. 519Where the ICTY is of the view that the
common objective of any JCE within the Croatian government in relation to
Operation Storm was limited to persecution in its less serious form (excluding,
for example, murder, inhumane acts, cruel treatment, and disappearances), 520
it is inconceivable tihat the same events icould be said to amoiunt to genocide.
4.16 The judgment in Gotovina wholly undermines the Respondent’s case
that any plan formed at Brioni was genocidal. The Trial Chamber highlighted
in the second paragraph of its conclusions on the scope of the JCE that Pres-
ident Tuman “emphasised the importance of leaving the civilians ‘a way
521
out’.”
4.17 It is notable that the Respondent does not confront these findings at
any stage in its Rejoinder. Rather, it actively misleads the Court by paragraphs
which state, for examiple:
“It is obvious from all the evidence presented that it was actually the
Croatian army and police that had orchestrated and committed the un-
derlying acts of genocide committed against the Krajina Serb popula-
tion. This was furthermore confirmed by the Judgment in Gotovina
et al. that clearly identified “members of the Croatian military forces
522
and the Special Policei”, as perpetrators iof these crimes.”
4.18 It is right that the ICTY found that members of the Croatian military
forces and Special Police had committed crimes, but it is quite wrong to state
that they were “underlying acts of genocide”: in so far as they were acts of
murder, inhumane treatment or disappearances, for example, they were not
519
Bosnia, para. 188, citing Prosecutor v. KupreπkiÊ et al, IT-95-16-T, Judgment of the Trial
Chamber of 14 Januaryi 2000, para. 636, wihich states:
“the mens rea requirement for persecution is higher than for ordinary crimes against hu-
manity, although lower than for genocide. In this context the Trial Chamber wishes to
stress that persecution as a crime against humanity is an offence belonging to the same
genus as genocide. Both persecution and genocide are crimes perpetrated against persons
that belong to a particular group and who are targeted because of such belonging. In both
categories what matters is the intent to discriminate: to attack persons on account of their
ethnic, racial, or religious characteristics (as wiell as, in the case of persecution,i on account
of their political affiliation). While in the case of persecution the discriminatory intent can
take multifarious inhumane forms and manifest itself in a plurality of actions including
murder, in the case of genocide that intent must be accompanied by the intention to destroy,
in whole or in part, the group to which the victims of the genocide belong. Thus, it can be
said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form
of persecution. To put it differently, when persecution escalates to the extreme form of wil-
ful and deliberate acts designed to destroy a group or part of a group, it can be held that such
persecution amountsi to genocide.”
520Gotovina TJ, para. 2321.
521Ibid., para. 2304.
522Rejoinder, para. 80i9. 94
even considered to be acts within the intended common objective of the JCE
which, in the ICTY’s iview, existed within ithe Croatian governmient.
4.19 Such is the paucity of the Respondent’s case, and so damaging are
the findings of the ICTY in Gotovina for that case, that the Respondent feels
compelled to deliberately mislead the Court. That, the Applicant suggests, is
the hallmark of the veiry weak case put foriward by Serbia.
Subsequent Acts
4.20 The Respondent’s case is that the genocidal intent formed at Brioni
was confirmed by the subsequent conduct of the Croatian armed forces. 523
The Applicant has addressed in Chapter 3 the evidence which undermines the
factual allegations madie by the Respondenti in support of this iassertion.
4.21 As a matter of law, it is clear that if the Court is satisfied any plan
agreed at Brioni was not genocidal (and the Applicant would suggest that this
conclusion, at the least, is inevitable, given the findings of the ICTY set out
above), this secondary aspect of the Respondent’s case falls away. It is not
the Respondent’s case that the intention for genocide can be inferred from the
pattern of conduct during Operation Storm alone and nor, sensibly, could that
be its case. This Court made it clear in the Bosnia case that the threshold to
be applied to infer genocide from a pattern of conduct is exacting: genocidal
intent must be the only reasonable inference capable of being drawn from
the facts, which must themselves have been convincingly established. The
Applicant has addressed this issue in detail in its submissions on the Claim,
524
and reiterates those submissions here. Plainly in the present case, genocidal
intent, if it could be established at all, is not the only inference which can be
drawn from the subsequent acts: the ICTY has already taken a different view,
having considered in a single case all the relevant facts which are now being
advanced by the Respondent in this case. This is, of course, distinct from the
situation in the Claim, where no single ICTY case has considered the pattern
of crimes which were committed against the Croatian population by the Re-
spondent over a considerably longer period and a much greater geographical
area, although there have been many convictions for crimes against humanity
and war crimes.
4.22 Finally in this section, the Applicant draws the Court’s attention to
another example of the Respondent’s deliberate and blatant misrepresentation
of the ICTY’s judgment in Gotovina. As part of its allegation that the “general
conduct of the Croatian armed forces which followed the Brioni meeting”
confirmed the existence of genocidal intent, the Respondent cites part of the
523
Rejoinder, para. 72i1.
52Reply, paras 9.20-9i.24. 95
Gotovinajudgmentwhichitsays“fullyconfirms”thisview. 525Theparagraphs
from the ICTY judgment find that crimes of persecution, murder, inhumane
acts, destruction and plunder of property and deportation had been commit-
ted against the ‘Krajina’ Serbs. But of course the Respondent well knows that
the ICTY found the vast majority of those crimes to be outside the scope of
the JCE said to have been formed at Brioni, and thus the suggestion that their
commission confirms the existence of a genocidal plan formed at that meeting
is nothing less than a calculated attempt to mislead this Court. The Applicant
regrets that a high degree of caution should be exercised when considering
the Respondent’s citation and characterisation of the Gotovina judgment. The
Respondent’s pleadings go well beyond any acceptable approach to the pres-
entation of evidence in adversarial proceedings, especially in a case with facts
and issues as compleix and detailed as thei present one.
(2) The Physical e leMenT : no g enocidal a cTs
(a) Killing Members“ of the Group
4.23 The Respondent’s Rejoinder approaches proof of the physical ele-
ment ofgenocideinawhollysuperficialmanner,whichisbothinadequateand
unacceptable. This is most clearly borne out in relation to the killings which it
purports to rely oni. At paragraph 796 iti is simply said:
“The Court is referred to the Judgment of the Trial Chamber, with its
highly detailed analysis of specific incidents, including the unlawful
shelling of important ipopulation centres liike the city of Knin”i.
4.24 This paragraph contains no citations whatsoever to any part of the
Trial Chamber’s judgment. It is entirely unclear which killings, of whom,
where or when, the Respondent relies on. How, in those circumstances, the
Court is expected to assess the Respondent’s case within the legal framework
of the Genocide Convention is not explained. The Applicant reiterates that
the burden is on the Respondent to prove the allegations it makes and to do so
526
using evidence which is “fully conclusive.” Where the Respondent cannot
even make the effort to provide the citations to the judgment on which it plac-
es such heavy reliance, and which runs to 1377 pages and 2685 paragraphs,
a question must be raised about the seriousness with which it is approaching
these proceedings. i
4.25 Moreover, the Respondent’s summary of the ICTY’s findings is again
wrong: the ICTY did not identify a single person killed by shelling in Knin,
527
Benkovac, Obrovac anid GraËac.
52Rejoinder, paras 72i1-722.
52Bosnia, paras 204, 209.
527
See para. 3.37, supra. 96
4.26 In any event, the Applicant maintains the position set out in the Re-
ply: there were no killings of ‘Krajina’ Serbs by Croat forces which were
perpetrated with genocidal intent and the Respondent has adduced no new
evidence in support of that assertion. On the contrary, the ICTY’s findings set
out above are that murder and disappearances were not even within the scope
of the common objecitives of any JCE witihin the Croatian goveirnment. 528
(b) Causing Seriou“s Bodily or Mental “Harm to Members of t“he Group
4.27 Again, the Respondent adopts a wholly superficial approach to this
aspect of its case. Reliance is placed on the findings of the ICTY in Gotovi-
na, this time in relation to inhumane treatment. 529But again, the Respondent
fails to address the fundamental flaw with this reliance: even if the appeal in
Gotovinaisunsuccessful,thoseactswerefoundbytheICTYtofalloutsidethe
scope of any JCE to commit crimes against humanity involving the Croatian
government. 530 How, then, it can be said by the Respondent that those identi-
cal acts were “driven by the same intent to destroy the group of Krajina Serbs
531
as such” is entirely iunexplained and increidible.
(c) Deliberately I“nflicting on the Gr“oup Conditions of Li“fe Designed to Bring“
About its Destruct“ion in Whole or in“ Part
4.28 The Respondent’s case is that there is “ample evidence” in the
Gotovina judgment to establish that the Croatian government deliberately in-
fllicted conditions of life on the ‘Krajina’ Serbs designed to bring about their
532
destruction. There are again no citations to any acts or findings which are
relied upon nor any explanation of how they are capable of meeting the high
threshold imposed by Article II(c). The Respondent is quite wrong to say that
the Applicant does not “dispute the issue of the actus reus”: the Applicant
disputes both the facts and the law as presented by the Respondent on this is-
sue.533
4.29 The thrust of the Respondent’s submissions in its Rejoinder under
Article II(c) appearsi to fall into two catiegories: 534
a. The forcible displacemient of the ‘Krajina’ iSerbs;
528
See para. 4.13, supra.
529Paragraph 1794 of the Gotovina judgment is cited by the Respondent at paragraph 797 of the
Rejoinder. Paragraph 1794 is one of those dealing with the legal findings about acts of inhu-
mane treatment, whicih begins at paragraph i1790 of the Judgmenit.
530
See para. 4.13, supra.
531Rejoinder, para. 79i8.
532
Rejoinder, para. 79i9.
533Ibid.; Reply, Chapters 1i1 and 12.
534Rejoinder, para. 80i0. 97
b. Physical and legal barriers to return, including looting and destruc-
tion of property.
4.30 The Respondent’s case is misconceived in law. Even if the Respond-
ent were able to meet the (insurmountable) evidential difficulties identified
in Chapter 3 of this Additional Pleading, neither of those acts is capable of
amounting to the infliction of conditions of life designed to bring about the
destruction of the ‘iKrajina’ Serbs.
Forcible Transfer
4.31 The central, indeed pivotal, allegation in the Respondent’s case is the
alleged forcible displiacement of 200,000 iSerbs from the ‘Krajiina’:
“Operation Storm consisted of a brutal attack on the Krajina region,
using a range of military and terrorist methods and techniques, with
the purpose of entirely eliminating Serb life in that territory. As
many as 200,000 Serbs who had been resident in the region as part of
a centuries-old community were driven from the area with the view
that they not be allowed to return. The forcible displacement of the
Serb population was accompanied by mass killings, in particular of
those who decided to stay in their homes, as well as by other prohib-
ited acts, such as the indiscriminate shelling of the Krajina towns and
villages, the plunder and destruction of Serb property, and the total
535
eradication of life of the Serb community in the Krajina region.”
4.32 As a matter of law, it is not genocide to forcibly remove an entire
population from an area, nor to intend to do so. Whilst such conduct may
amount to a crime against humanity, it lacks the central feature of geno-
cide: the intention to physically destroy the group, in whole or in part.
Forcible transfer does not destroy a group; it moves it. As the ICTY has
explained:
“It does not suffice to deport a group or a part of a group. A clear dis-
tinction must be drawn between physical destruction and mere disso-
lution of a group. The expulsion of a group or part of a group does not
in itself suffice for genocide. As Kreß has stated, “[t]his is true even
if the expulsion can be characterised as a tendency to the dissolution
of the group, taking the form of its fragmentation or assimilation.
This is because the dissolution of the group is not to be equated with
physical destruction”. In this context the Chamber recalls that a pro-
posal by Syria in the Sixth Committee to include “[i]mposing meas-
ures intended to oblige members of a group to abandon their homes
in order to escape the threat of subsequent ill-treatment” as a separate
53Rejoinder, para. 68i8 (emphasis added). 98
sub-paragraph of Article II of the Convention against Genocide was536
rejected by twentyi-nine votes to five,i with eight abstentioins.”
4.33 This Court cited parts of that paragraph in its own judgment in the
Bosnia case, excerpted above at paragraph 4.10. Indeed, this Court held that
the stated intention in relation to Srebrenica - to carry out “‘[p]lanned and
well-thought-out combat operations’ … to create ‘an unbearable situation of
total insecurity with no hope of further survival or life for the inhabitants of
both enclaves’” - was not sufficient, precisely because expulsion of the inhab-
itants would have achieved the purpose of the operation, and expulsion is not
a genocidal act. 537
4.34 The Applicant accepts, of course, there may be circumstances in
which forcible transfer is carried out in a manner which does have the effect
of physically destroying the group: by moving all the men to one location and
all the women to another, thereby preventing procreation; or by killing all the
menandforciblytransferringallthewomen,againtopreventprocreation.Orif
forcible transfer is coupled with the withholding of food or medical care, such
that those transferred inevitably die. But in order to be a genocidal act, it must
be established that the act was designed to bring about the physical destruction
of the group. Absent that design, forcible transfer is of no relevance to an alle-
gation of genocide. In this case, the Respondent has not even asserted even less
evidenced any allegation that the purpose and method of any forced displace-
ment was the destruction, as opposed to the removal, of the ‘Krajina’ Serbs.
4.35 Finally, the Applicant notes the reference by the Respondent to the
initial application in these proceedings. For present purposes there are no “le-
gal consequences” of that application, contrary to the Respondent’s sugges-
tion: the question of whether forcible displacement can amount to genocide
and in what circumstances is a matter of law which this Court is competent
to determine; what the Applicant said in its initial application cannot sensibly
have any influence upion that.
Physical and legal barriiers to return, inciluding destruction oif property
4.36 Even if, contrary to the Applicant’s submission, the Respondent were
able to make out the allegations which were first advanced in the Counter-Me-
morial, paragraphs 1406-1409, and those which are now made in the Rejoin-
der at paragraphs 773-780, they are incapable as a matter of law of amounting
to acts contrary to Article II(c), because they do not and could never entail the
physical destruction of the group. Measures designed to prevent a group from
536StakiÊ, para. 519. Parts of this paragraph are cited in this Court’s judgment in the Bosnia,
para. 333.
53Bosnia, paras 280-281. 99
returning to a geographical area cannot be equated with measures designed to
physically destroy that group. The Respondent continues to ignore the princi-
pal legal flaw in its case: forcible deportation, and measures used to achieve
and maintain that end,i is not genocide.
SECTION III: CONSPIRACY TKO COMMIT GENOCIDE
4.37 The Respondent advances no new arguments on this issue. The Ap-
plicantchallengestheinterpretationoftheBrioniminutesonwhich thisaspect
of the Respondent’si case depends, for iall the reasons set oiut in Chapter 3.
SECTION Iv: ATTRIBUTION
4.38 The Respondent appears to overlook the Applicant’s clear and frank
acceptance in the Reply that it bears international responsibility for the “state-
ments and acts of those present at the Brioni meeting and for the conduct
of military personnel of the HV and police personnel of the Croatian MUP
during and after Operation Storm”. 538Why the Respondent elects to do so is
entirely unclear, but the assertion at paragraph 809 of the Rejoinder is nothing
short of bizarre, in ilight of the Applicanti’s pleaded position:i
“It is hard to conceive how the Applicant, after a long period of ac-
ceptance and celebration of Operation Storm and of the participation
of the army in this operation, can today attempt to claim that some-
body else may have been culpable for the crimes committed during
the operation.”
4.39 In relation to actions by the ABiH or civilians, the Applicant’s posi-
tion is as set out in the Reply: it does not and cannot bear responsibility for
those acts. The Respondent advances various assertions in the Rejoinder on
this issue but at no stage does it grapple with or apply the legal test for at-
tribution set out in this Court’s judgment in the Bosnia case. 539This Court
emphasised that it is necessary for the party alleging genocide to “clearly es-
tablish”540that either (1) the entities that committed the genocide were organs
of the State or (b) that they were acting on the instructions of an organ of the
541
State or under the ieffective direction aind control of such ain organ.
4.40 That test is plainly not met and the Respondent has not advanced any
reasoned argument to the contrary. The highest the Respondent can put its
case is that:
538
Reply, para. 12.61.i
53As set out in the iReply, paras 9.58-9.i61.
54Bosnia, para. 209.
541
Bosnia, paras 385-415. 100
“the minutes of the Brioni meeting demonstrate that the participants,
who were members of only Croatian institutions, discussed how and
where the 5 thABiH Corps should be deployed and what military ac-
th
tions it should take. This could imply that the 5 ABiH Corps was
put under full disposal and under full command and control of the
Croatian Army for the purpose of Operation Storm, in which case
Croatia, and not Bosnia and Herzegovina, should bear responsibility
for the actions of that unit and the crimes committed by that unit dur-
ing the operation.” 542
4.41 An assertion that something “could imply” attribution falls woefully
short of the standard to be applied both as a matter of law and evidence. The
allegation that any coinduct of the ABiH 5 thCorps is attributabile to the Appli-
cant is baseless.
SECTION v: NO fAILURE TO PUNISH ALLEGED vIOLATIONS
Of ARTICLES II AND III Of THE CONvENTION
4.42 The Respondent’s case on the Applicant’s alleged failure to punish
genocide is unclear and unstructured. For the avoidance of doubt, the Appli-
cant’s position is asi follows:
a. There has been no genocide and accordingly there is no obligation
to punish anyone for it. The Respondent’s case on failure to punish
is nothing more than a subsidiary of its primary case which, for the
reasons set out in the Reply and in this Additional Pleading, has no
foundation in evidencie or law.
b. Any obligation to prosecute has in any event been discharged by
the Applicant’s cooperation with the ICTY in its prosecution of
Ante Gotovina, Mladen MarkaË and Ivan »ermak. The obliga-
tion in Article VI of the Convention is in the alternative: either
to prosecute in the State’s own domestic courts or to cooperate
with prosecution by an international penal tribunal, which in-
cludes the ICTY. Accordingly, the Respondent is wrong to say
that the issue in relation to the ICTY does not arise on the facts
of the present case: 543on the contrary, even if there was an obli-
gation to punish, it has been discharged by cooperation with the
ICTY.
542
Rejoinder, para. 81i2 (emphasis added).
54Ibid, para. 804. 101
c. This Court has no jurisdiction over an allegation of failure to punish
any crime which does not amount to genocide. The assertion that
the Applicant is under a duty to prosecute other crimes as a result of
internationalhumanrightsnorms,suchastheEuropeanConvention
on Human Rights (‘ECHR’), is both irrelevant to these proceedings
and wrong in law. The ECHR did not come into force in relation
to the Applicant until 5 November 1997. Accordingly, the ECHR
has no application to the matters which are the subject of the Re-
spondent’s Counter-Claim: not even the European Court of Human
Rights would have jurisdiction ratione temporis over them.
4.43 Finally, the Applicant deprecates the Respondent’s suggestion that
these legal proceedings should be used to “contribute to setting the Applicant
on a path that better acknowledge its history.”4The purpose of this Court’s ad-
judication of both the Claim and the Counter-Claim, and the only purpose of it,
is to determine whether as a matter of law and evidence either party is liable for
breachesoftheirobligationsundertheGenocideConvention.TheRespondent’s
explicitandseeminglyferventdesiretoachievesomethingmoreaptlydescribed
as political point-scoring undermines its credibility in these proceedings.
SECTION vI: RELATIONSHIP BETwEEN THE CLAIM AND
COUNTER-CLAIM
4.44 The Applicant concludes its submissions with some short observa-
tions about the comparative nature and strength of the Counter-Claim when
considered alongsidei the Claim which formsi the basis of these piroceedings:
a. The Claim concerns actions by the Serbian State which were un-
doubtedly unlawful as a matter of international law, because they
were designed to seize territory internationally recognised as
Croatian as part of a plan to establish a ‘Greater Serbia’ outside
the international boundaries of the Serbian State. There is no jus-
tification in law for the very premise of the Serbian incursion into
Croatian territory. In contrast, the Counter-Claim concerns a mili-
tary operation which had at its core an entirely legitimate objective
as a matter of international law: the liberation of Croatian terri-
tory which had been unlawfully occupied by rebel Serbs, aided and
abetted by the Serbian State, following the collapse of negotiations
to achieve this objecitive by peaceful meanis.
b. The Claim concerns a consistent and systematic pattern of crimes
meticulously organised and directed at destroying the Croat popu-
54Ibid, para. 806. 102
lation, which took place over a number of years in numerous loca-
tions across large parts of Croatia. In stark contrast, the Counter-
Claim concerns far fewer and disparate incidents which took place
in a very limited geoigraphical area in a mucih shorter time frame.i
c. The Claim is predicated on many crimes which have been found
individuallybytheICTYtoamounttowarcrimesorcrimesagainst
humanity. No case determined by the ICTY has ever considered
the totality of those crimes and whether, viewed in their full con-
text, they can amount to genocide. This Court’s judgment will be
the first pronouncement upon that issue. In contrast, the ICTY has
considered the entirety of Operation Storm and its legal characteri-
sation, concluding that its intended common objective amounted
to the crime against humanity of persecution, in its lesser form,
excluding murder and inhumane treatment. Whilst it is the Appli-
cant’s position pending the appeal that this is an overstatement of
criminal liability arising from Operation Storm, it is respectfully
submitted that this Court’s approach to the findings of the ICTY
render it impossible to see how a finding of the much graver crime
of genocide in thesei proceedings could inow be justified.
4.45 As the Applicant explained in Chapter 1 of this Additional Pleading,
at the crux of this Counter-Claim is the Respondent’s cynical attempt for the
purposes of these proceedings to characterise Operation Storm as a conflict
which resembles in scale, impact and legal characterisation, the 1991-1995
war on which the Applicant’s claim is based. In doing so, the Respondent
seeks to draw the attention of this Court away from the genocidal campaign
led by the Respondent between 1991-1995, by seeking to artificially equate
this campaign with Operation Storm, which was a legitimate military opera-
tion directed at thei liberation of occupiied territory.103 104
SUBMISSIONS
On the basis of the facts and legal arguments presented in its Memorial, its
Reply and in this Additional Pleading, the Applicant respectfully requests the
International Court of Justice to adjudge and declare:
1. That, in relation to the counter-claims put forward in the Rejoinder,
it rejects in their entirety the fourth, fifth, sixth, seventh and eighth
submissions of the Respondent on the grounds that they are not
founded in fact or law.
The Applicant reserves the right to supplement or amend these submissions
as necessary.
Agent of the Republic of Croatia
Zagreb, 03 August 2012 105
CERTIfICATION
I certify that the annexes are true copies of the documents referred to and that
the translations provided are accurate.
Agent of the Republic of Croatia
Zagreb, 03 August 2012106
Additional Pleading Croatia