Translation

BHY

CR 2006/15 (translation)

CR 2006/15 (traduction)

Friday 10 March 2006 at 10 a.m.

Vendredi 10 mars 2006 à 10 heures - 2 -

10 The PRESIDENT: Please be seated. Professor Stojanović, you have the floor.

SMTr.JANOVI Ć: Thank you, Madam President, Members of the Court. I will continue

my presentation with an analysis of the prepara tions for war and the arming of the population in

Bosnia and Herzegovina.

Part Three

Preparations for war and the arming of the population

113. In the autumn of 1991, the war in Croatia was coming to an end. The United Nations

Security Council had characterized the conflict in Croatia by resolution 713 of 25 September 1991

(pursuant to Chapter7 of the United Nations Char ter) as a direct threat to peace and international

security. This resolution imposed an embargo on th e export of arms to Yugoslavia. The Security

Council gave Cyrus Vance a mandate to act as an intermediary in the ceasefire negotiations. Also,

a United Nations peacekeeping force, UNPROFOR, was set up. It was to keep the two sides apart

along the boundaries that their respective military forces held at that point.

114. The situation became tense when the Par liament of Bosnia and Herzegovina adopted a

memorandum on the sovereignty and indepe ndence of Bosnia and Herzegovina on

15 October 1991. Representatives of the Serb par ties walked out, and the two Serb representatives

of the Presidency of Bosnia and Herzegovina vot ed against the memorandum. A few days later,

the Serb representatives who had walked out of the Parliament of Bosnia and Herzegovina set up

their own separate parliament and announced a referendum to let the citizens decide if they wanted

to stay inside Yugoslavia or not. The refere ndum was due to take place on 9and 10 November

1991.

115. On 22 December 1991, the Serb party, the SDS, proposed a total transformation of

Bosnia and Herzegovina, under whic h it would have been turned into a confederation of three

ethnic groups, each with their own parliament. During the ensuing discussions between the three

sides, the Serb SDS party proposed retaining Bosn ia and Herzegovina within the framework of the

Yugoslav federation. When the Serb party realized that the other two groups were opposed to this

11 idea, it dropped the suggestion and was willing toabide by the wishes of the Muslim and Croat - 3 -

representatives and, to this end, loosen the links with Yugoslavia or cut them altogether. For the

sake of peace, the Serb party was ready to accep t the transformation of Bosnia and Herzegovina

into a confederation with three parliaments for the three ethnic communities, operating on the basis

of mutual respect. The confederation would also have had certain joint functions, thanks to which

Bosnia and Herzegovina would have acted as a bridge between Croatia and Yugoslavia. Therefore,

in Bosnia and Herzegovina three entities would have been created, acting in harmony with one

another, or at least adopting a neutral position. (Preliminary Objections, Annex, pp. 457-458,

June 1995).

116. This proposal was in complete contradi ction with the position of the Muslim and Croat

parties, which sought a unitary and independent Bosnia and Herzegovina.

117. The above-mentioned proposal by the Se rb party demonstrates that the Serbs had no

plans for war as of mid-December 1991. The m eeting between Nikola Koljevic, Deputy Chairman

of the Serb party, and Croatia’s President Franjo Tudjman in Zagreb on 8 January 1992 bears this

out. During the meeting, Nikola Koljevic suggested the transformation of Bosnia and Herzegovina

into “a community of three entities linked by a conf ederal contract”. At the same time, Koljevic

put forward confederal-type links between the Croat entity in Bosnia and Herzegovina and Croatia,

on the one hand, and between the Serbian entity in Bosnia and Herzegovina and Serbia, on the

other (Transcripts on the Partition of Bosnia, op. cit., p. 143).

118. Another attempt at a peaceful soluti on to the political conflict in Bosnia and

Herzegovina occurred a week after the referendu m in Bosnia and Herzegovina. The European

Union’s mediator, José Cutiliero, invited the re presentatives of all three national groups to

negotiations in Lisbon on 18March 1992. During the negotiations, the three sides agreed on the

inviolability of Bosnia and Herzegovina’s frontiers and decided to leave the issue of sovereignty

for later. All three sides were in agreement th at Bosnia and Herzegovina was a republic composed

of three constituent peoples, each of which had the right to self-determination. Bosnia and

Herzegovina was to have been divided up into cantons along ethnic lines according to the map

drawn up on the basis of the compromise agreement sponsored by the European Community.

12
Oneweek after accepting the Lisbon agreement, Mr. Izetbegovic rejected it (S.L. Woodward,

op. cit., p. 196). - 4 -

119. The referendum of 29 February 1992, held without the participation of the Serb

population, constituted the basis for internationa l recognition of Bosnia and Herzegovina, which

came on 6April 1992. To be valid, the refere ndum in Bosnia and Herzegovina should (in the

opinion of the Badinter arbitration commission) have shown that a majority of the three constituent

peoples of Bosnia and Herzegovina were in favour of the independence of Bosnia and

Herzegovina. This was the only sort of referendum that would have been in accordance with the

Constitution of Bosnia and Herzegovina. After the referendum, held without Serb participation, the

European Union recognized Bosnia and Herzegovina as an independent State on 6 April 2002.

With the referendum and international recognition, an armed conflict for control of territory in

Bosnia and Herzegovina was clearly imminent (J.P. Maury, op. cit., p. 276).

120. After the recognition of Bosnia and He rzegovina, the Serb population of the country

was reduced to the status of a national minority in their own country, where they had been and

lived for centuries as one of the three constituent peoples. The arbitration commission chaired by

Robert Badinter incidentally indicated in its report of 11 January 1992:

“The Serbian population in Bosnia-Herze govina and Croatia must therefore be

afforded every right accorded to minoriti es under international convention as well as
national and international guarantees consistent with the principles of international law
and the provisions of Chapter II of the dr aft Convention of 4 November 1991, which
has been accepted by these Republics . . .”

121. It is difficult to imagine a situation in which a population becomes a national minority

within its own State. And yet that was the des tiny of the Serbs of Bosnia and Herzegovina. It

cannot reasonably be denied that, in such an event, the population concerned must have had a sense

of enormous disappointment and historical failure. This failure could have been accepted, but its

acceptance would have meant the disappearance of the Serb population of Bosnia and Herzegovina.

Problems begin when the refusal to accept failure tran slates into resistance. This is what happened

to the Serbs of Bosnia and Herzegovina, because they did not accept their defeat.

122. The change in the status of the Serb s, from constituent people to national minority,

meant for them a loss of their co llective identity. The consequence was the creation of boundaries
13

between the Serb, Croat and Muslim entities. The struggle for territory was for the Serbs a struggle

to preserve their identity. - 5 -

123. The same was true in Croatia, where th e Serbs were transformed into a national

minority by the new Croatian Constitution of 1990, wh ereas until then they had formed one of the

constituent peoples of Croatia along with the Croa ts, since Croatia had previously been the

Republic of Croats and Serbs living in the territory of Croatia. Confronted with their failure to hold

on to their historical territory in Croatia, where th ey had lived for centuries and had even benefited

from a special status recognized by the Austro-Hungarian monarchy, the Serbs resigned themselves

to their fate and abandoned their property, their land, their identity and their history by leaving

Croatia. They fled to Serbia (more th an 200,000 people from Krajina expelled during

OperationStorm moved to Serbia in August 1995 ) in the hope of recovering their collective

identity.

Resistance to the war inside Serbia

124. As soon as war broke out in Yugoslavia in 1991, the opposition parties had the

possibility of confronting the Milosevic régime on its nationalist policies. The opposition parties

emphasized the need to maintain the State of Y ugoslavia by peaceful means. However, since the

régime also claimed to be in favour of the con tinued existence of Yugoslavia, it was difficult for

the opposition to differentiate itself radically from the Government in the domestic political arena.

Since the opposition was against the use of for ce to keep Yugoslavia together, its political

arguments against the régime were undermined. The declaration of independence by Croatia and

Slovenia and the secession of the two republics fro m the Yugoslav federation helped to sap the

struggle against the régime in power in Serbia. Since the continued existence of Yugoslavia was

the best solution for the Serbs with a view to achieving their goal of establishing a national

homeland, a question had to be answered by the Serb population, as well as by the Croat

population: what would happen if over two m illion Serbs and several hundred thousand Croats

were left outside of their new homelands (in the event of the break-up of Yugoslavia)?

14 125. After the elections held in Serbia in December 1990, which were won by the ruling

socialist party, with 42.5 percent of the vot es, the opposition, led by the Serbian Renewal

Movement, along with the democratic party and a number of smaller parties, organized mass

demonstrations on 9March 1991. The demonstra tions took place in the centre of Belgrade. - 6 -

Around 100,000 people took part in the protests. The opposition’s main demand concerned

changes to the Serbian Constitution of 1990, which was due to be adopted after the parliamentary

election. The opposition also sought an end to the régime’s monopoly over the media (notably

nationwide TV). The protests ended with fight ing between demonstrators and the police, who

treated demonstrating citizens with particular brutality. That evening, the régime called in tanks to

patrol the boulevards of Belgrade.

126. Once armed conflict broke out in Yugoslavia (Plitvice on 30 March 1991), various Serb

parties, led by Belgrade’s democratic party, sought to convince the Serbs who had taken up arms in

Croatia to negotiate. At the same time, in Serbia, the opposition stepped up its campaign for a

peaceful solution to the Yugoslav crisis. The cam paign was taken to a large number of towns and

villages throughout Serbia, at which the opposition managed to attract an increasing number of

people opposed to the war.

127. On 30 June 1991, the democratic party and its parliamentary group in the Serbian

Parliament launched an invitation for a confer ence to find a peaceful outcome to the Yugoslav

crisis to all the heads of parliamentary groups in the Yugoslav federation. It is worth noting that 32

of the 36 parliamentary groups invited accepted the invitation.

128. The conference was held in Sa rajevo on 21 and 22 August 1991.

Dr. Dragoljub Micunović, the Chairman of Belgrade’s democratic party, gave the opening speech.

He outlined a plan aimed at finding a peaceful solution to the Yugoslav crisis by describing

negotiating procedures and techniques. The confer ence adopted the text of the “Call for Peace”,

which declared:

“We call on reason, in the name of life. Peace can only be established by
people disposed to dialogue, to living alongside one another and working together.
We, the parliamentary representatives of all the Yugoslav Republics, here in Sarajevo,

have begun discussions to this end.” [Translation by the Registry.]

15 129. Another meeting was to be held on 6 September of the sa me year, in Sarajevo (just like

the first conference). All political parties were due to make public their proposals for a solution to

the Yugoslav crisis. However, this conference w as not very successful, since the major figures in

the war which had already started in Croatia di d not attend. The democratic party launched a

written version of its project for the political andconstitutional structure of Yugoslavia, but there - 7 -

was no debate, since none of the other representativ es had their own proposals. The delegations

from Zagreb and Ljubljana did not turn up, so c onsequently the conference ended on that same day

with the approval of a final declaration, in whic h, this time, the delegates called upon the warring

parties in Croatia to abide by the ceasefire agreement and solve the conflict in a peaceful way.

130. Anti-war sentiment gained ground in Se rbia, at a time when the conflict between the

opposition and the régime intensified. In their various activities, the continued existence of

Yugoslavia remained the political goal of the majority of the opposition parties.

The failure of the autumn 1991 mobilization in Serbia

131. On 14 and 15 September 1991, the Yugoslav National Army proclaimed the second

phase of mobilization as a result of fighting in Croa tia and in response to the outright attack by

Croatian forces on the Yugoslav National Army’s barracks there. Major disappointment reigned in

the General Staff of the Yugoslav National Army, when the reservists refused to respond to the

mobilization order.

132. As war spread in Croatia towards the end of August 1991, the Yugoslav army continued

to emphasize its role in keeping the two warring sides apart.

133. At the same time, in Croatia, the Yugoslav National Army was increasingly viewed as a

Serb force. This attitude prevailed in Bosnia and Herzegovina as well, where the Government

decided not to act upon the mobilization call by the military authorities of the Yugoslav army

(CIA, Balkan Battlegrounds, Washington, 2002, Vol. 1, p. 125).

134. The refusal of mobilization by the Gove rnment of Bosnia and Herzegovina constitutes

an interesting point. To a certain extent, it re flected the situation inside Serbia, where the

16 mobilization order was singularly unsuccessful. At a meeting of the Supreme Defence Council of

Yugoslavia, held on 28September 1991, it was shown that 100,000 reservists called up by the

mobilization order had not reported for duty, 50,0 00 had left the ranks of the Yugoslav army and

40,000 soldiers had refused to go to fight in Croa tia. In short, some 200,000 reservists had refused

to submit to the mobilization order. The et hnic breakdown of the people who had refused to

respond to the mobilization order reflected that of Serbia itself: Serbs 70percent, national

minorities 30 per cent. - 8 -

135. The Yugoslav army was confronted by a situation which is an entirely normal

consequence of the break-up of a State: when a State breaks up, its army breaks up as well. In

fact, it was the dissolution of the army which made the dissolution of the State possible. However,

the break-up of an army is not a purely political matt er, it is a social issue as well. A large number

of people, whose existence depended upon their service in the army, are left without wages,

without means of subsistence, without housing, wi thout unemployment benefits and health cover.

This was notably the case in tho se republics which had declared their independence, Slovenia and

Croatia, where officers of the Yugoslav National Army were evicted from their quarters and no

longer had any income. This caused disputes insi de the Government of Yugoslavia, which still

formally existed at the time. The Defence Mini stry demanded a general mobilization in order to

continue fighting in Croatia (the Yugoslav National Army had already withdrawn from Slovenia in

the summer of 1991). In this phase, the army was seeking a means of subsistence (see CIA, op.

cit., Vol. 2, pp. 175-177).

136. The Yugoslav National Army’s aim of ma intaining Croatia and Slovenia within the

Yugoslav federation began to r un counter to the views of th e Government of Serbia and

Montenegro, which was no longer interested in preserving Yugoslavia as soon as it had become

clear that the two republics concerned did not want to remain inside the federation. Bosnia and

Herzegovina was thus the only territory outsid e Serbia and Montenegro where the Yugoslav

National Army survived as a military force.

137. The failure of the mobilization of r eservists in Serbia in the autumn of 1991

demonstrated to the Government of the Republic the depth of anti-militarist sentiment prevailing in

Serbia. It was the first time in the history of Serbia that a mobilization order had had so little

17 success. This factor made it very difficult to undertake violent action in order to prevent the

break-up of the country.

138. After the opposition’s mass demonstrations ag ainst the régime, in Serbia in the autumn

of 1991 the Government was aware that the general mobilization, proposed by the military General

Staff, could prompt mass protests by the Serbia n population and “political defeat for Milosevic’s

Government” (CIA, op. cit., Vol. 2, p. 182). - 9 -

139. The last attempt by the Defence Minist ry to take a political decision concerning a

general mobilization followed the fall of Vukovar. It then, in effect, suggested that the Presidency

of Yugoslavia should decide to launch an attack on Zagreb. It was Milosevic himself who vetoed

this proposal (CIA, op. cit., Vol. 2, p. 182).

140. Madam President, Members of the Court, this brief analysis of the resistance in Serbia

to the use of force during the break-up of Yugosla via clearly indicates that Serbia and Montenegro

was incapable of being the aggressor in an inter-eth nic conflict in Yugoslavia. The conflict that

broke out was not the result of aggression, becau se, if it had been, the war would have been

completely different.

141. Serbia did not mobilize troops, although certain individuals, who happened to come

from Bosnia and Herzegovina or Croatia initiall y (Šeselj, Bokan, Jovic), did organize volunteer

units, without any State backing. Similarly, in 1941, when Serbia was occupied by the Germans,

volunteer formations were organized to be sent into Bosnia to protect the Serb people from the

genocide perpetrated by the Ustaši. Moreover, vol unteer units of Croats took part in the war in

Bosnia alongside Bosnian Croats and volunt eer units from certain Muslim countries fought

alongside the Bosnian Muslims.

The formation of military organizations in Bosnia and Herzegovina

142. The political conflict was obviously leading to military conflict. The failed attempts to

resolve the political crisis in Yugoslavia amicab ly and peacefully clearly show this. Arming in

secret and military organization among all three et hnic groups in Bosnia and Herzegovina also

confirm it.

18 143. The interests of the parties in conflic t were becoming more and more difficult to

reconcile: the Serbs in Bosnia and Herzegovina did not accept the separation of Bosnia and

Herzegovina from Yugoslavia, while the Muslims we re insisting on a sovereign, independent and

integral Bosnia and Herzegovina. It should be emphasized that these interests were not defined

exclusively by the political and intellectual eliteof these ethnic groups, but were rooted in their

national and political consciousness. This is c onfirmed by the results of the November 1990

elections, when nationalist parties got most of the votes. Similarly it should be noted that the great - 10 -

majority of Serbs boycotted the referendum on the independence of Bosnia and Herzegovina

(March 1992). This large-scale boycott could not have been provoked by the Serb Democratic

Party’s political campaign. It doubtless resulted from what the Serbs regarded as their national

interests. This attitude of the Serbs (oppositi on to the secession of Bosnia and Herzegovina),

accompanied by fear, persuaded them to accept arms from anywhere.

144. The fact that there were weapons, souvenirs of the Second World War, in most houses

in Bosnia and Herzegovina should be mentioned. This was doubtless due to the experience of the

Second World War, in which unarmed Serbs were an easy prey for the Ustashi.

145. The Yugoslav national army, consisting of officers of all nationalities, was becoming

increasingly Serb. This is a fact, but one that can be explained. Croatian and Muslim officers had

left the Yugoslav army in order to join new, ethnically-based armed forces. The same can be said

of Slovenian officers, who joined the brand new Slovenian army and of Macedonian officers, who

joined the newly-constituted Macedonian army. So the Yugoslav national army became a Serb

army. Even before the war most of the officers in the Yugoslav national army were of Serb origin,

but it should be stressed that most of these Serb officers were Bosnian Serbs. There were two

reasons for this: firstly, the Yugoslav national army was created by Tito’s army that operated

during the Second World War, especially in Bosnia and Herzegovina. Secondly, Yugoslav national

army officers came from poor regions in Bosnia and Herzegovina and Cr oatia, regions populated

19 mainly by Serbs. As committed communists these Serbs chose the army for ideological reasons,

but above all for economic reasons, because the army gave them a decent life, which was difficult

to find where they lived. This was very releva nt to the process of transformation of the Yugoslav

national army into a Serb army in Bosnia and Herzegovina.

146. The multi-ethnic army that was defending the multi-ethnic Yugoslavia as the Yugoslav

national army at the beginning of the war in Croa tia and Bosnia and Herz egovina became a Serb

army through the composition of its troops and officer corps, and as such lined up with the Serbs in

the war in Bosnia and Herzegovina. As such it was the target of choice for Muslim and Croat

military formations from the beginning of the war. Everywhere in Bosnia and Herzegovina, these

formations would surround and a ttack Yugoslav national army barr acks, killing conscripts, often

only 18 years old, who were simply doing their compulsory military service. - 11 -

147. The CIA book states:

“From January through April 1992, the JNA in Bosnia had two priorities. The
first was to work [for] and support a peace ful settlement of the political differences
among the three ethnic groups. The second, and more important, was to see that the
Bosnian Serbs and their position in the republic was secure.” (CIA, op. cit., V-1,

p. 128/2.)

148. Once Bosnia and Herzegovina had been recognized as an independent State (on

6April1992), the Yugoslav political Government was faced with the issue of withdrawing the

Yugoslav national army. It was clear that there was very strong international pressure and that

Yugoslavia would have to withdr aw the Yugoslav national army from Bosnia and Herzegovina.

The risk that this withdrawal represented for the Bosnian Serbs was obvious. However, most of the

officers and men in that army were of Serb origin, but since they were from Bosnia and

Herzegovina they did not want to leave what was th eir country. So they chose to stay in Bosnia

and Herzegovina near their homes and families.

One of the consequences of the army’s withdrawal would have been a great wave of refugees

into Serbia and Montenegro. If only the families of Yugoslav national army officers were counted,

there would be nearly 200,000 refugees. This wa s a matter of great concern for the régime in

20 Serbia and for the political and social Serb e lite, because small groups of refugees were already

arriving in Serbia from Croatia, and also from Bosnia and Herzegovina. It should be stressed that

there were Croat and Muslim families, and a bove all mixed families, Yugoslav families, among

these first groups of refugees, seeking refuge in Se rbia because they feared war and persecution in

Bosnia and Herzegovina, but also in Croatia.

149. In January, February and March 1992, i.e. before the international recognition of Bosnia

and Herzegovina, all officers of Bosnian origin ⎯ Croats, Muslims and Serbs ⎯ who so wished

were transferred to Bosnia and Herzegovina. At the same time all officers from other regions in the

former Yugoslavia serving in Bosnia and Herzegovina could be posted elsewhere, and particularly

to Serbia or Montenegro. In the end the military remaining in Bosnia a nd Herzegovina were all

citizens of that State.

150. At the same time the Republika Srpska forces were becoming more and more

substantial (see CIA, op. cit., pp. 129-130). Thus on 1 April 1992 the Republika Srpska had

60,000men in territorial defence. These were under the command of municipal staffs. The - 12 -

Internal Affairs Ministry newly formed in the Republika Srpska (on 1 April 1992) had

15,000 police at its disposal. The Republika Srpska Government was responsible for funding these

troops. Later, towards the end of 1993, the Rep ublika Srpska Parliament decided to “transfer

responsibility for supporting army units to the co mmunes where they were stationed” (session of

the Republika Srpska Parliament, 30-31 December 1993).

151. At the same time (1 April 1992) the Yugoslav national army (JNA) had

110,000officers and men. According to the CIA report “[t]hese forces were equipped with an

estimated 500 tanks, 400 field artillery pieces ove r 100 mm; 48 multiple rocket launchers and

350120-mm mortars, some 40 light attack obser vation helicopters and 30 transport helicopters

based in the republic” (CIA, op. cit., V-1, pp. 130-131).

152. In short, the Serb military force in Bosnia and Herzegovina, professional soldiers and

territorial defence personnel, had 185,000men. Af ter the withdrawal of Serbs and Montenegrins

born in Serbia and Montenegro (there were between ten and 15,000 of these), the military forces of

the Republika Srpska, together with police units, numbered about 200,000.

21 The formation of Bosnian military forces

153. It is understandable that, as the political conflict developed in Bosnia and Herzegovina

(1990-1991), the Bosnian Muslims also saw the po ssibility of transforming the political conflict

into a military conflict. At that time the multi- ethnic Yugoslav national army (JNA) still existed in

Bosnia and Herzegovina, with the aim of supportin g a multi-ethnic Yugoslavia. Despite this, the

Bosnian political Government authorized the creation of a military organization within the

Democratic Action Party (SDA), the Muslim party at that time. The CIA reports that this military

organization was known as the “Patriotic League of Peoples”. On 10 June 1991 this party

organized a meeting of the most important Muslim leaders. At this meeting the “Council for

National Defence of Muslims” was formed, to orga nize the military preparations on behalf of the

Patriotic League. The purpose of all this was to achieve and defend the independence of Bosnia

and Herzegovina (CIA, op. cit., V-1, p. 130). - 13 -

154. The Yugoslav national army (JNA) intellig ence service informed the general staff and

the Yugoslav Presidency that a specialized milit ary unit of 50,000men, 25,000 of whom were

armed, had been formed (CIA, op. cit., V-1, p. 130).

155. Madam President, Members of the Court, I would now like to quote from

Alija Izetbegovic’s speech in 1997:

⎯ “In June 1991 the SDA Council for National Defense was formed. This meeting
was attended by about 400 representatives of Bosnians from the entire territory of

the former Yugoslavia, primarily from Bosnia and Herzegovina.

⎯ In July 1991 the first military experts (e .g. ex JNA officers) joined the Patriotic
League and provided the first directives for the defense of Bosnia and

Herzegovina.

⎯ The first truckload of weaponry arrived in August 1991.

⎯ The first military training began in September.

⎯ The first units were formed in October.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

⎯ In December the organizing of personnel and arming of reserve police units of the
Bosnia and Herzegovina MUP (Ministry of Internal Affairs) began at the initiative

and under the leadership of the Patriotic League.

22 ⎯ In January 1992 the first unit of the Patr iotic League, an action that was carried
out through the highest organs of Bosnia and Herzegovina.

⎯ In February 1992, at the conference in Mehurici, orders for the staff of the
Patriotic League of Bosnia and Herzegovina were defined and issued, and political
directives on the principles of defense of Bosnia and Herzegovina were set out.

The political goals were: defense of the territory, democracy, multi-ethnic
community and human rights.

⎯ In April 1991, after the decision by Bosnia and Herzegovina Presidency that the

territorial defense of Bosnia and Herzegovi na was the state defe nse structure, the
three high-ranking Territorial Defense officers, who were appointed then joined
the command of the Patriotic League of Bosnia and Her zegovina and began
commanding the existing structure of the Patriotic League . . .

⎯ At the beginning of the War the Patriotic League of Bosnia and Herzegovina had
around 30,000 armed volunteers arranged in units, with an established corps area
and commanders. Prior to the war, th e Patriotic League, had well developed

logistical systems. That system remain ed the backbone of logistics for the Army
of Bosnia and Herzegovina until the end of the war, thanks to SDA state policy
and the solidarity of friendly countries in the Islamic world . . .

⎯ If it were not for the Patriotic League of Bosnia and Herzegovina, that would not
have been possible. It was the first army of our defense: for it emerged [as] the - 14 -

Army of the Republic of Bosnia and Herzegovina...” (CIA, op. cit ., V-1,
pp. 132-133.)

156. When war broke out in Bosnia and He rzegovina, there were already nine regional

Bosnian Muslim armed forces commands (Saraje vo, Doboj, Cazin, Prijedor, Livno, Mostar and

Sandzak (a region in Serbia inhabited mainly by Muslims). It is important to stress that the

commander-in-chief of the Bosnian army was Sefer Halilovic, a former senior officer of the

Yugoslav national army, of Serbian (Sandzak) orig in. These nine regions were divided into one

hundred and three municipal staffs (CIA, op. cit., V-1, p. 132).

157. Since this organization consisted solely of the Muslim population in the regions and

municipalities mentioned, military conflicts were triggered by Se rbian forces breaking into these

Muslim military bases. This was an initial conflict, before there were any conflicts between larger

military units. These conflicts gave rise to ethni c movements. As regards territories under Serb

control, it is clear that the aim was to drive out the population that formed the basis of the opposing

party’s military force. That, however, is the pur pose of any armed conflict and as such it was the

purpose of all parties in the war in Bosnia and Herz egovina in the territories that they controlled.

23 Apart from forced ethnic movements, the conseque nces of military action and the context of war

that in themselves give rise to a large-scale exodus of people cannot be overlooked. There was

such an exodus from Bosnia and Herzegovina, bu t also from Serbia and Montenegro, which was

suffering the economic consequences of this war.

158. Military operations began with local conflicts between villages and towns which caused

many casualties right at the start of the war. Th e first units committed to action were local units

created solely on an ethnic basis. Of course, r esponsibility for the victims was attributed to the

enemy ethnic group. In inter-ethnic wars there is no difference between civilians and military

personnel. This is a characteristic of all civil wa rs and revolutions. It is well known that hatred is

aroused in wars of this type, becoming a basis for revenge, which intensifies the violence. All fight

against all, neighbours against neighbours, villages against villages. That is why civil wars are

always more terrible than international wars, in which conflict is based on the clash of military

forces and civilian victims are regarded as collatera l damage. Obviously total international wars,

especially after the outbreak of the Second World War, have to a large extent blurred this - 15 -

distinction between the victims of armies and civilia n victims. In the twentieth century the civilian

population has become the first victim of armed conflict.

Arming the Croats in Bosnia and Herzegovina

159. Towards the end of 1991, the right-wing Croat party (the ultranationalist party) began to

establish paramilitary units (the Croat Defence Forces, known as the HOS) in Croatia and those

regions of Bosnia and Herzegovina where Croats formed the majority of the population (Western

Herzegovina). The chief command centre was set up in Ljubusko (Western Herzegovina) on

3 January 1992, but the Croat armed forces (HOS) were always directed from Zagreb, the capital of

Croatia. The commander of the defence of Vukova r, Mile Dedakovic (a former officer of the

Yugoslav national army), was appointed to comma nd the Croat armed forces. In March 1992, the

Croat armed forces could muster 5,000 armed men (CIA, op. cit., Vol. I, p. 133).

24 160. Apart from the Croat armed forces formed by the right-wing party, the Croat

Democratic Union, the HDZ (the party in power in Croatia at the time), chaired by the Croatian

President FranjoTudjman, created in 1992 th e Croatian Defence Council: HVO (which had the

direct support of the Croat army or HV). The Croatian Defence Council quite openly demonstrated

its support for a partition of Bosnia and Herzegovina to the extent that it had no major links with

the Muslim political and military organizations. Rivalry between the Croatian Defence Council

(HVO) and Croat armed forces (HOS) was very intense, leading to the murder of one of the (HOS)

Croat armed forces’ commanders on 9August1992. From that time onwards, the Croatian

Defence Council played the leading role among the Croats of Bosnia and Herzegovina.

161. The Croatian Defence Council was establis hed at the beginning of January1992,

although the HDZ (the party led by Tudjman) had already begun to organize paramilitary groups as

of the end of the summer of 1991 (CIA, op. cit., Vol. I, p. 134).

162. According to the CIA’s book, from which we have already quoted:

“With Zagreb’s intensive assistance ⎯ and with the example of the 1991

Croatian war to motivate local populati ons to organize and arm themselves ⎯ the
HVO units would surface within days of the Bosnian war’s beginning, complete with
officers, staffs, organization and weapons. Organized and directed from Zagreb, the
HVO in 1992 was for all practical purposes a subordinated command of the Croatian

Army (HV), directed by HV general Janko Bobetko through former HV officers
reassigned to the HVO. The HVO relationship went well beyond the deployment of - 16 -

allied HV units fighting alongside HVO forces in Bosnia. Not only were HVO and
HV forces operating under joint command but the HVO main staf f was itself an HV
forward command force, established on the 16th of April in Grude at Tudjman’s

direction. Bobetko personally selected the first HVO commander, former Croatian
army Colonel Milivoj Petkovic, and Pet kovic’s newly established headquarters was
simultaneously also an HV command post both officially and in practice. During the

entire Bosnian war ⎯ but especially during the first several months, the HVO’s chain
of command, both political and military would run all the way back to Tudjman’s desk
in Zagreb. When the war began the HVO probably had some 15,000 and perhaps as
many as 20,000 troops under arms. They we re initially formed as ‘Croatian Defense

Councils’ for each Croat-controlled municipalit y... But would later be organized
into battalions and brigades. The Bosn ian Croat forces were on average better
organized and equipped than their Bosnian early counterparts but still lacked the
professionalism and expertise of their J NA and Bosnian Serb Army opponents, and

had little armor and artillery. These limitations were to constrain the HVO’s
performance for the remainder of the war, preventing it from ever becoming a robust
fully independent fighting force.” (CIA, op. cit., Vol. 1, p. 134.)

25 163. This comparative analysis of the forma tion of armed forces in Bosnia and Herzegovina

prompts the following conclusions:

(A)The arming of military units was organized entirely by the ethnic communities themselves,

which established ethnically-based military formations.

(B)The Serbs and Croats of Bosnia and Herze govina sought support from their respective sister

States, Serbia and Croatia. The Croatian Army ma intained a constant presence in Bosnia and

Herzegovina throughout the war. The Yugosla v National Army was present until 19 May 1992

and, after that date, the army was only implicat ed in the war in Bosnia and Herzegovina in

sporadic incidents involving violations of the fr ontiers and territory of the Republic of Serbia

by the forces of the central Government of Bosnia and Herzegovina.

(C)With no neighbouring State on which it could rely for support, the Bosnian Muslim side in the

war had no option but to rely on itself for the political and military organization of its army.

Nevertheless, Bosnia and Herze govina was not alone in this c onflict, it was aided by certain

Muslim countries. In the speech cited above, Alija Izetbegovic made reference to the aid

received by Bosnia and Herzegovina for which he expressed his gratitude to the countries of

the Muslim world that played a role in the success of organizing the Bosnian Muslim military.

Of course, not all Muslim countries were implicated in the war in Bosnia and Herzegovina.

Given that there is no reliable information on the type and amount of aid that the Muslims of

Bosnia and Herzegovina received from Islamic countries, I do not wish to lose myself in conjecture

over various estimates. Suffice to say that such fina ncial, military and material aid existed. It is - 17 -

equally evident that in the armed forces of e Muslim community of Bosnia and Herzegovina

there were a certain number of volunteers from Islamic countries, who had come to help their

Muslim brothers in the war in Bosnia and Herzegovina.

164. The aim of all of these armed formations during the war was to establish control over

the territories that the different sides to the conflict viewed as be ing the territories of their ethnic

community.

26 Madam President, I will complete the first pa rt of my presentation today and I respectfully

ask you to grant us a break now.

The PRESIDENT: I will. Thank you, Professor Stojanović.

STOr.JANOVI Ć: Thank you, Madam President.

The PRESIDENT: The Court will rise for 15 minutes.

The Court adjourned from 11.20 a.m. to 11.35 a.m.

The PRESIDENT: Please be seated. Professor Stojanović, you have the floor.

MTr. JANOVI Ć: Madam President, Members of the Court, I shall continue my

presentation with an analysis of the armed conflicts in Bosnia and Herzegovina.

Part Four

The armed conflicts in Bosnia and Herzegovina

165. Madam President, Members of the Court, I believe that the armed conflict in Bosnia

and Herzegovina was considerably more comple x than the way in which the Applicant has

presented it. I agree with the opinion of General Sir Michael Rose, who, in his Fighting for

Peace (Harvell Press, London, 1998, p. 3) stated that “the situation in Bosnia was not simply that

of one nation invading another. It was a civil wa r about territory in which the Bosnian Croats and

the Bosnian Serbs sought to secede from the State a nd join with their compatriots in neighbouring

Croatia and Serbia.” And he continues: “Nev ertheless, the ethnic differences in Bosnia which

were to result in a three-sided civil war over terr itory are mirrored elsewhere in the world and the - 18 -

story of the UN peacekeeping force in Bosnia ra ises important questions for the future.” ( Ibid.,

p. 7.) On the same page, Sir Michael Rose quotes Edmund Burke, who said that “[c]ivil wars strike

deepest of all into the manners of the people. Th ey corrupt morals; they pervert even the natural

taste and relish of equity and justice.” As the Commander of the UNPROFOR in Bosnia and

Herzegovina, General Rose witnessed events there di rectly, as he did in the other missions that he

accomplished.

27 166. What I have just said indicates that the beginning of the war in Bosnia and

Herzegovina, following the recognition of Bosn ia and Herzegovina’s independence by the

European Union and the United States, on 6 and 7 April1992 respectively, had been prepared in

advance. I would even say that the conflict was expected, since all sides concerned were

establishing military units and arming their populati ons. Historical experience shows that arms

procurement is the most important indicator of preparations for war and especially when it is raised

and quantitatively exceeds the normal level necessar y for the maintenance of the armed forces in

peacetime. In the case of Yugoslavia, this procurement took place in the middle of an economic

crisis and did so in spite of this crisis and of growing poverty. Moreover, each of the

ethnic/national groups, which had been in conflict for some time, armed their own communities.

167. Madam President, Members of the Court, I think that I have clearly illustrated the

process of arming and military organization of th e three ethnic/national groups in Bosnia and

Herzegovina. I must emphasize th at all three of these groups benefited from outside support: the

Serbs from Serbia, the Croats from Croatia an d the Bosnian Muslims from certain Muslim

countries of the Middle East. The way that ar mament was organized clearly shows that the

preparations for armed conflict paved the way for armed, inter-ethnic conflict. There were,

however, other features to this conflict, for example, social factors, but the fundamental, underlying

characteristic was that of conquest and defence of territory. The Bosnian Muslims sought to

control the whole of Bosnia and Herzegovina, wher eas the Serbs and Croats wished to control the

territories they considered to be theirs. The reas on for the beginning of the conflict in Bosnia and

Herzegovina, the reason for the war in Bosnia and Herzegovina, was thus the struggle for territory.

This struggle for territory made the situation ev en more complicated and the search for a peaceful

solution more arduous. - 19 -

168. The creation of the respective entities at th e end of the conflict is the clearest evidence

that the war in Bosnia and Herz egovina was a war about territory. The Serbs and the Croats have

never denied the Muslims the right to have a terr itory over which they would have sovereign and

independent power. The only issue was the amount of territory that the Serbs and the Croats were

ready to hand over to Bosnia’s Muslims. Peace could be achieved at Dayton because the territorial

28 entities, guaranteed by international agreement, were formed, thereby settling the relationships

between the ethnic/national groups in Bosnia and Herzegovina. Consequently, a terrible,

destructive war, which caused enormous suffering an d so many victims, was brought to a close by

a peace settlement that was remarkably close to the solutions pr oposed before the war began. No

ethnic/national group won the war, but all three of them obtained territories in which they could

organize more or less autonomous political power structures.

169. The war in Bosnia and Herzegovina was a civil war between the ethnic/national groups,

as it was these groups which took part in the war, but the objectives of this war went no further

than territory and control over territory. The destru ction of a group was not the aim of this war, it

was never contemplated in the war in Bosnia and Herzegovina. In Bo snia and Herzegovina,

mobilization was widely supported, but only within individual ethnic/national groups. We cannot

show that there was resistance to the calls for mobilization by national structures in Bosnia and

Herzegovina, but we can prove that certain Serbs, certain Croats and certain Muslims chose to

move to Serbia to avoid the war. Some of them stayed on and still live there to this day. Equally, a

certain number of mixed families went to live in Serbia from Croatia and Bosnia, where the

pressure on them was becoming too great.

170. There was no mobilization of the populati on in Serbia during the war in Bosnia and

Herzegovina. An insignificant number of groups of volunteers did go to Bosnia and Herzegovina

to take part in the conflict and these groups we re led by individuals who came from Bosnia and

Herzegovina originally. Consequently, the war in Bosnia and Herzegovina was a local war,

involving the ethnic/national groups that lived in the territory of Bosnia and Herzegovina, which

was, we should not forget, a State comprising Muslims, Serbs and Croats. The members of

national groups living elsewhere, notably in Serbia, had no political, moral or psychological will to

involve themselves in a war which was not their own. Thus over 20,000 Muslims lived in Belgrade - 20 -

throughout the war and continue to live there now. These Muslims were not subjected to any

discrimination and most of them had no wish to go to fight alongside the Bosnian Muslims in

Bosnia and Herzegovina.

29 171. Consequently, I regard the war in Bosnia and Herzegovina as having been an internal,

civil war, the aim of which was to control territo ry. This war was in no respect an attempt by the

Serb people or the State of Serbia to destroy anot her ethnic, national or religious group. This war

cannot be characterized in any other way than as a civil war between the citizens of Bosnia and

Herzegovina belonging to the three main ethnic gr oups in order to occupy territory and establish

the boundaries of their respective entities.

172. As evidence that the war in Bosnia and Herzegovina was an internal civil war fought

over territory, I will now provide a short history of the conflicts which occurred in Bosnia and

Herzegovina in the years from 1992 to 1995 between the three national groups which had lived

there for centuries.

The war between the Bosnian Muslims and the Croats

173. An appalling war broke out between the Cr oats and Muslims in early 1993. According

to the CIA report:

“After a week of rising interethnic tensions across the entire Central Bosnian

area, the two ostensible allies clashed openl y on 12 January 1993, in Gornji Vacuf [a
town in Bosnia and Herzegovina] ⎯ a predominantly Muslim town in what had been
designated a Croat-majority canton. HVO forces firing from commanding positions in
the hills to the southeast began a drive toforce the Muslim defenders out of most of

the town.” (CIA, op. cit., p. 190.)

174. The armed conflict between the Croats and the Muslims rapidly spread in January,

February and March1993. Although the Croatian President, Franjo Tudjman, on 28March1993

published an agreement entered into with the Mu slims of Bosnia establishing a joint command for

the Croatian forces (HVO) and the Muslim forces (the army of Bosnia and Herzegovina), these two

allied armies started fighting each other again a mere three weeks after the agreement was signed.

In effect, the agreement failed to put an end to the war between the Croats and the Bosnian

Muslims. - 21 -

175. Not later than 16 April 1993, Croat forces entered the village of Ahmici in the Lasva

river valley and committed atrocities there. Events in the war between the Croats and the Muslims

have been described in the CIA report:

“When British United Nations peacekeepers arrived in the village on 19 April to

investigate Bosnian charges of a massacre, they found that the entire village had been
30 systematically destroyed. The main mosque had been burned and its minaret felled by
explosives detonated at the base. The major ity of the houses had also been put to the
torch, their roofs collapsed by the flames. Only Croat-owned buildings remained

intact. Burned-out cars, blackened private driveways, and livestock lay dead in the
streets and gardens. An entire family of seven was found dead in one house, including
two young children who had almost certainly burned to death...” (CIA, op. cit.,
p. 192.)

176. The intensity of the conflict between the Cr oats and the Muslims is also exemplified by

the fate of the city of Mostar, where, according to the Applicant, Serbs committed genocide against

Muslims. However, the truth about Mostar is something else entirely, because at the beginning of

the Croat-Muslim conflict, Serbs, who had account ed for approximately 20percent of Mostar’s

pre-war population, were no longer to be found there. Ensuing events in Mostar are best described

in the CIA report, according to which:

“By the late summer of 1993, Mostar became the most divided city in divided
Bosnia-Herzegovina. Before the war the greater Mostar metropolitan area’s
population of some 120,000 citizens showed a very marginal Muslim plurality:

35 per cent Muslims, 34 per cent Croats, and 19 per cent Serbs. Within urban Mostar
itself, there [was] a higher fraction of Muslims ⎯ 52 percent. When the ethnic
violence cut through the city centre, Most ar’s roughly 55,000 Muslim townspeople
found themselves squeezed into the smaller a nd besieged East Mostar section, forced

off the western bank of the river and with only a medieval footbridge... linking the
two halves of the city.” (CIA, op. cit., p. 200.)

177. The conflict between Croats and Muslims, characterized by a series of offensives and

counter-offensives on both sides, success of vary ing degrees see-sawing between them, lasted until

23February 1994, when leaders from the central Go vernment in Sarajevo and the Government of

the Croat entity Herceg Bosna ⎯ that is one name for the area considered by the Croats to be

theirs ⎯ signed a ceasefire. One month later an ag reement uniting the two armies was signed and

the former foes became allies in the war against the Serbs.

178. Because the war began as a war between the Serbs, on one side, and the Croats and

Muslims, on the other, the conflict between the Muslims and Croats transformed it into a three-way

war. In the war between the Croats and Muslim s, the same types of events took place as those - 22 -

which we saw in the war between Muslims and Serbs. Exactly the same actions as those which the

Applicant said were specific to the war between Serbs and non-Serbs took place in the war between

31 the Croats and Muslims. Like all civil wars, th is one involved the full panoply of ills: murder,

rape, torture, the destruction of cultural, religious and historical property, the forced transfer and

deportation of the population. Authors of work s on the conflict between Croats and Muslims ⎯

for example, Ivica Milivon čić in her book Sealed Crime, published in 1998 in Zagreb (Centre for

the Collection of Documentation and Anal ysis of Information on the Homeland War

(www.hic.hr/ratni-zločini/B-H/tab00.JPG)) ⎯ cite the figure of 140,000Croats displaced and

deported during the war with the Muslims.

During the war between the Croats and Muslim s, the Serbs consolidated their positions and

used the war to consolidate their territories unde r threat from Croat or Muslim forces and,

particularly, to reinforce the strategically im portant corridor linking Bosanska Krajina (western

Bosnia) to eastern Bosnia. Following this strategic approach, and seeking to maintain balance, the

Republika Srpska army helped both the Croats and the Muslims in their fight against each other.

The support provided to Muslims in their war agai nst the Croats shows that there was never any

intention to destroy the Muslims as a group. If ther e had been such an intention, the Serbs would

have provided support exclusively to the Croats or they would simply have used the war between

the Muslims and Croats to attack both sides. Yet, although they could have done so, the Serbs

never carried out such an attack and never had any intention to do so.

179. Madam President, Members of the Court, I do not wish to describe all the atrocities

committed during the war between Croats and Muslims in 1993 and 1994. I am citing that conflict

now, before this Court, in order to show you th e scale of the tragedy suffered by all peoples in

Bosnia and Herzegovina. The Applicant in its wr itten pleadings has offered a simplistic vision of

the war and of the situation in Bosnia and Herze govina because it has wished to avoid showing the

complexity of the relations between the ethnic-national groups in Bosnia and Herzegovina, in order

to hide the real nature and causes of this inte rnal civil war among the peoples of Bosnia and

Herzegovina. - 23 -

The inter-Muslim armed conflict

180. Another tragic aspect, one among so many tragedies in Bosnia and Herzegovina, was

the armed conflict between the two Muslim facti ons, the conflict between the Government forces
32

loyal to AlijaIzetbegovic and the forces faithful to FikretAbdic, the undisputed leader of the

Muslims of western Bosnia.

181. Fikret Abdic’s moderate politics led him to oppose his former ally Alija Izetbegovic and

his radicalism. The conflict between AlijaI zetbegovic and FikretAbdic intensified after

21 June 1993; the reason for this was the negotia tions arranged by the European Union in Geneva

in connection with the Vance-Stoltenberg plan, which was intended to establish peace in Bosnia

and Herzegovina. As one of the members of the Presidency of Bosnia and Herzegovina,

Fikret Abdic wanted, against the wishes of Alija Izetbegovic, to attend the negotiations in Geneva.

The political dispute between AlijaIzetbegovic and FikretAbdic culminated in Abdic’s removal

from the Presidency. Fikret Abdic then left Saraje vo and returned to Bihac, the city where he had

many supporters and where he proclaimed the autonomous region of western Bosnia (APZB).

Armed groups rapidly sprang up in the area, because part of the 5th Corps of the army of Bosnia

and Herzegovina, which was stationed at Bihac, split off from the Muslim governmental forces and

came under the command of FikretAbdic. Fikret Abdic’s forces immediately entered into armed

conflict with the rest of the 5th Corps of the army of Bosnia and Herzegovina, which remained

loyal to Alija Izetbegovic. The CIA describes the situation in Bihac as follows in its report:

“Open violence between the rival forces began in the early days of October, as
for the first time Muslims fought not only Serbs and Croats but other Muslims.
UNPROFOR attempted to negotiate a truce be tween the two Muslim factions before

the violence escalated out of control, but the Abdic representatives refused to attend
the talks.” (CIA, op. cit., p. 188.)

182. There was a military logic to this conflict, as there was to the one between Muslims and

Croats, and it lasted until August 1995.

183. During the conflict between the Muslim forces loyal to AlijaIzetbegovic and those

loyal to FikretAbdic, Republika Srpska s upported the moderate approach represented by

FikretAbdic. An agreement providing for mutual recognition between Republika Srpska,

represented by Radovan Karadzic, a nd the autonomous region of western Bosnia, represented by

Fikret Abdic, was entered into in October 1993. Republika Srpska and the autonomous region of - 24 -

western Bosnia had economic dealings with each other and maintained friendly relations until the

end of the war and the definitive defeat of Fikret Abdic’s forces. In effect, the autonomous region

33 of western Bosnia, a Muslim area governed by Fi kret Abdic, a Muslim but a political opponent of

Alija Izetbegovic, was economically, politically and militarily allied with Republika Srpska. On a

number of occasions, several thousand civilians, a nd Muslim soldiers as well, supporters of

Fikret Abdic, sought shelter with Bosnian or Croatian Serbs from attacks by Muslim forces loyal to

Alija Izetbegovic. These Muslim supporters of Fi kret Abdic were always welcomed and protected

by the Serbs both in Republika Srpska in Bosnia and Herzegovina and in Republika Srpska Krajina

in Croatia.

The armed conflict between Muslims and Serbs

184. The conflict between Serbs and Muslims in this all-embracing war, in which everybody

was against everybody else, was no different from the other conflicts occurring in the territory of

Bosnia and Herzegovina. At the very beginning of the war, the Serbs succeeded in seizing control

of most of the areas which they wished to control.

Thus, in late 1992 and in any event by 1993, the Serbs in Republika Srpska controlled the

territories which they considered to be their own. That is why the Serbs were prepared, at that

time, to end the war. On the other side, the Mu slims insisted on pursuing the war, precisely in

order to seize territories under Serb control. Th e goal of the Muslims and later the Croat-Muslim

federation was exactly the same as that of the Bosnia n Serbs: to take and control territory. This

fact is confirmed by the report by the Netherlands Institute for War Documentation, according to

which:

“Sarajeevenders ⎯ initially numbering perhaps 10,000 to 15,000 armed
personnel of all types, with only a few heavy weapons and very limited

ammunition ⎯ were a motley lot... After a series of inconclusive skirmishes, the
Bosnian Government attempted its first major offensive operation from within the city
on 8June [this means 1992]. Bosnian Ar my forces mounted several simultaneous
attacks aiming to capture four critical hilltop positions overlooking the city centre . . .”

Later, in 1993, Sarajevo was to become a security zone, proclaimed by the United Nations Security

Council, but this did not prevent the army of Bo snia and Herzegovina from expanding the military - 25 -

forces in Sarajevo to 45,000men in the city itself, or 70,000 if the positions held by the army in

Bosnia and Herzegovina around Sarajevo are included.

34 185. Thus, from 1993, the Muslims and later th e Federation tried by all possible means to

keep the conflict alive and insisted on its continua tion in order to extend their control over territory

which they considered to be theirs. Gene ralSirMichael Rose expressed the following opinion

about the policy of the Bosnian Muslims during his stay in Bosnia and Herzegovina:

“By mid-1994 the Bosnian Government had undoubtedly ceased to support the

peacekeeping efforts of the UN, believing that a ceasefire might turn into a permanent
freezing of the conflict line which would th en result in an unfair division of the
country. It therefore ordered its army to move to offensive operations to recover
territory lost in previous battles with the Serbs, thus bringing it into confrontation with

the UN whose job it was to restore peace in the country . . . The Bosnian Army had an
additional aim of getting the US and NATO committed to the war on the ground...
UN peacekeeping efforts to halt the fighti ng were clearly an obstacle to their
endeavours and by 1994 it became obvious to us in Sarajevo that the UN primary

[goal] to alleviate the suffering of the pe ople was of less consequence to Bosnia’s
leaders than the achievement of their own political goal.” (Op. cit., p. 9.)

186. The Sarajevo Government used all possibl e means to achieve military victory in the

war, including security zones which, contrary to what their name might suggest, were never

demilitarized and, as a result, were used as milita ry bases by units of the army of Bosnia and

Herzegovina. They launched attacks from those zones on the armed forces of the Bosnian Serbs

and also on neighbouring Serb-inhabited villages, thereby inflicting not only losses on the army of

Republika Srpska but also great suffering on the Serb civilian population. These security zones

were established in April-May 1993 in Srebrenica, Sarajevo, Tuzla, Zepa, Gorazde and Bihac. The

CIA described the military situation in Srebrenica, which had supposedly been demilitarized, in its

report, as follows:

“Under the terms of the UNSC resoluti on as finally written, the Srebrenica area
was to become a demilitarized zone. Th e Bosnian Army forces in the Srebrenica
enclave were supposed to turn in all thei r weapons at UN-supervised control points,
while UNPROFOR was supposed to enforce a permanent cease-fire around the

enclave, supervise the enclav e’s demilitarization, and res pond to any Serb attacks.
Neither provision really came to pass as originally intended.” (CIA, op. cit., Vol.I,
pp. 319-320.)

For example, the general staff of the 28th Di vision of the army of Bosnia and Herzegovina

was in Srebrenica. According to testimony by the Commander-in-Chief of the army of Bosnia and

Herzegovina, GeneralHadzihasanovic, at the Krstic trial, the 28th Division had a force of over - 26 -

35 5,000men in Srebrenica. Also, the 5thCorps of the army of Bosnia and Herzegovina had its

headquarters at Bihac, which was also in a secur ity zone; Tuzla, another security zone, was the

headquarters of the 2nd Corps of the army of Bosnia and Herzegovina. Finally, the Gorazde

security zone was used for armed attacks on the Se rbs. This fact was noted in the CIA report,

which states:

“After some early sparring, the Gove rnment troops launched a major offensive
in late July, seizing the passage to Gorazde and pushing VRS troops out of Trnovo . . .
Although Serb forces won the first round of fighting, seizing most of Rogatica

municipality and positions southeast of Visegrad, a series of Bosnian Army attacks
from late August to November retook key territory around Visegrad.” (Goražde,
Istočna Bosna, July 1992, CIA, p. 151.)

187. The situation was no different in 1995, th e year which saw the army of Bosnia and

Herzegovina, in co-operation with its once-again ally, the Bosnian Croats, but also with the army of

the Republic of Croatia, conquer areas which they considered their own. This objective finally

having been achieved, a peace agreement became possible and this became a reality in Dayton. For

example, we shall cite some instances of armed attacks and offensives carried out by the army of

Bosnia and Herzegovina and the Croat forces in 1995, as reported by the Netherlands Institute for

War Documentation:

1 May 1995: Croat forces take advantage of the offe nsive in the area of western Slavonia to

attack Serb positions in Bosnia and Herzegovina:

“Four months cease-fire ends and fights escalate. Start of the Croatian
offensive, ‘Operation Flash’, to retake western Slavonia and launch attacks on 3 fronts
against Krajina Serbs. 2 Croatian MiG-21s attack key bridge on Sava river linking

Croatia to Bosnia. Sniping increases along Snip er Alley. Serbs also shell village of
Pazaric (10 miles SW of Sarajevo) killing 2. More fighting around Brcko as Croatian
government forces shell corridor. Government troops come under Serb attack in
corridor while other government forces la unch attack against Serb communication

tower in Majevica hills (S. of Brcko).”

5 May 1995: troops of the central Government of Bosnia and Herzegovina attack the area of

Turbe in Bosnia and Herzegovina.

15 June 1995: forces of the Federal Government atta ck Serb positions in Ilijas and Vogosca

and on the Teslia-Doboj-Banja Luka road. - 27 -

27 July 1995: Croat forces attack western areas in Bosnia: “HVO forces advancing along

36 Tomislavgrad-Grahovo line, and in Livno region, now within 4km of Glamoc and 8km from

Grahovo. 250 Serbs flee to Knin, while Muslim refugees in north now number 8,000 in Bihac.”

12 August 1995: Croat forces attack Serbs in Herzegovina: “Croatian forces launch new

attack on Serbs near Dubrovnik, Serbs fleeing from Trebinje inside Bosnia. Bosnian Government

forces pushing towards Donji Vakuf, Bosanska Krup a, and Prijedor with Bosnian Croatian forces

providing some artillery support (1,300 explosions in 3 hr period).”

188. The definitive conclusion which follows from the presentation of the chronology of

events in Bosnia and Herzegovina clearly shows that the war in Bosnia and Herzegovina was a

typical war, having as its sole objective capturi ng and controlling territories which the various

national groups considered to be theirs for va rious reasons, the most im portant of which being

historical. This war objective was definitively confirmed by the Dayton Agreement.

The victims of the conflict

189. All three parties suffered casualties during the conflict in Bosnia and Herzegovina. The

victims were subjected to all kinds of violence, so me being killed, others displaced. In order to

obtain a true picture of this conflict, the total number of persons killed needs to be known.

Unfortunately the Applicant has not even tried to establish the precise number of victims, but has

not hesitated to use various sources, usually its own, in seeking to increase the number of victims in

order to persuade the Court th at genocide was committed against the Muslims of Bosnia and

Herzegovina.

190. Thus Bosnia and Herzegovina states in its Application:

“Not since the end of the Second World War and the revelations of the horrors

of Nazi Germany’s ‘Final Solution’ has Eu rope witnessed the utter destruction of a
People, for no other reason than they belong to a particular national, ethnical, racial,
and religious group as such. The abominable crimes taking place in the Republic of
Bosnia-Herzegovina at this time can be called by only one name: genocide.”

(Application, 20 March 1993, p. 3.)

The Applicant warned of “the destruction of the Bosnian people” and claimed that the people of the

State of Bosnia and Herzegovina were suffering genocide at the hands of Yugoslavia.

37 191. And in the Memorial the Applicant continues: - 28 -

“This litigation can have but one redeeming aspect. It is within the power of the
Court to lift the Genocide Convention from th e dusty abstraction of law libraries and
pious museums and deploy it as an effective shield for present and future

generations... [T]his Court cannot revive the approximately 200,000 to 250,000
human beings who already have died . . .” (MBH, 15 April 1994.)

192. Also in the Memorial (15 April 1994, para . 2.1.0.8), the Applicant claims “that the total

number of people killed, mainly Muslim but also Croat is around a quarter of a million . . .”. The

Applicant further states that these figures were co mpiled by the Bosnia and Herzegovina Institute

for Public Health in February 1994, so th ese figures only relate to the period from 1992 to

February1994, and even in this period the Appli cant cites figures that could never be confirmed,

although the war lasted as long again as the peri od to which these figures relate. According to

these figures, which relate to 61 municipalities, accounting for 65 per cent of the territory of Bosnia

and Herzegovina, it is contended that there were in Bosnia and Herzegovina up to February 1994:

⎯ 142,334 deaths (of whom 16,510 were children);

⎯ 161,755 injured (of whom 33,734 were children);

⎯ 72,282 seriously injured (of whom 18,056 were children);

⎯ 20,000 rapes at least;

⎯ 2.6 million refugees and displaced persons;

⎯ 500 mosques destroyed at least.

193. Madam President, Members of the Cour t, Serbia and Montenegro is accused of

genocide, and is under an obligation to establish the truth. The Serb people and the State of Serbia

and Montenegro sympathize with all the victims of this dreadful conflict irrespective of their

national, ethnic or religious affiliations; they sympathize with Croats, Bosnian Muslims and Serbs,

with all those who have suffered in this tragic and appalling civil war and regret that they are

obliged to analyse figures, which in a sense re duces the sufferings of human beings, and human

beings themselves, to faceless statistics. I ask you in advance to forgive me for this analysis that I

have to carry out.

38 194. I am obliged to enter into this de bate on the number of victims because recent

researches by the Sarajevo Research and Documentation Centre reveal a picture quite different

from that presented by the Applicant. The numbe r of victims does not reach that claimed by the

Applicant; it is far smaller. At a conference in Banja Luka on 15December last - 29 -

Mr. Mirsad Tokaca, President of the above-menti oned Centre, who is a Bosnian Muslim, gave the

following information: the Centre established that 93,837 persons of all nationalities (Muslims,

Croats and Serbs) had been killed during the wa r in Bosnia and Herzegovina. Moreover, this

number includes both civilian victims and military k illed in action. Mr.Tokaca then stated that

among those killed, 30,173 were Muslim fighters and 35,514 were Muslim civilians. Although it is

possible that the total number of victims may rise, the total, according to Tokaca, is unlikely to

exceed 100,000. So we are a very long way fro m the figures put forward by the Applicant, who

would have us believe th at 142,334 people were killed in the first part of the war alone, up to

February 1994.

195. Mr. Tokaca’s researches are in accordance with reports and testimony by experts before

the Tribunal for the former Yugoslavia. Moreover, these researches show that a large number of

victims died in combat. Unfortunately this r esearch has not established the number of victims in

each individual combat: between Muslims and Croats, between Muslims and Muslims, between

Croats and Serbs and between Musl ims and Croats. In all likelihood, it is not even possible to

establish exactly how many victims there were in each of these conflicts. The complexity of the

conflict in Bosnia and Herzegovina from 1992 to 1995 is such that it is best described by Hobbes’s

maxim bellum omnium contra omnes.

Ethnic homogenization

196. As regards displacement of the population, I cannot lay before you all the cases of

voluntary and forced displacement of the Serb and non-Serb population from their homes. It is the

39 direct consequence of the armed conflict, but also of the terrible economic situation and, of course,

the policy conducted by the parties in power. I have said repeatedly that all parties to the conflict

were waging war in order to establish control over territories. The best evidence of this can be

found in the sources cited by my distinguished colleague Maître van den Biesen, namely

Mrs.EwaTabeau’s work used in Slobodan Milosev ic’s trial before the Tribunal for the former

Yugoslavia. According to Mrs.Tabeau, the et hnic structure of the population in Bosnia and

Herzegovina in 1997 (after the war) was almost the sa me as it was in 1991, before it. Thus before

the war the non-Serb population accounted for 67 .8percent of the population of Bosnia and - 30 -

Herzegovina; after the war the figure was 64.7pe rcent. However, the percentage of Muslims

allegedly victims of genocide in Bosnia a nd Herzegovina increased, because before the war

Muslims accounted for 42.2percent of the total population in 1991, whereas after the war the

figure was 45.5 per cent of the total population in Bosnia and Herzegovina. You have a graph of

these data in your folder. Madam President, Member s of the Court, it is impossible that the group

that was allegedly a victim of genocide could have increased its percentage presence in the territory

where this genocide was allegedly committed. B ecause of the misconceived comparison drawn by

Professor Franck, who would have us believe that the events in Bosnia and Herzegovina reminded

him of the holocaust, when he stated in his address of 2 March 2006: “Do these pictures remind

you ⎯ as I am afraid they remind me ⎯ of the burnt-out Synagogues of Berlin and Frankfurt after

Kristallnacht”, I am compelled once again to analyse the number of victims and to say that nine

million Jews had been living in Europe before the Second World War. Afterwards there were only

three million. So, Madam President, Members of the Court, six million Jews, 67percent of the

Jewish population of Europe, perished during the Second World War. The war in Bosnia and

Herzegovina, despite all its atrocities, certainly cannot be compared to the insanity of the Nazis.

197. On the other hand no one can dispute th at ethnic homogenization was carried out in

Bosnia and Herzegovina in the war from 1992 to 199 5. This, however, was not a unilateral policy,

still less unilateral ethnic cleansing planned by the Serb s. Neither is it true that throughout the war

the Muslims were aiming to create a multi-ethnic society, which is what our distinguished

40 colleague Ms Laura Dauban sought to demonstrate through the words of Haris Silajdzic, the Prime

Minister of Bosnia and Herzegovina, who stated in 1995: “Our history is our guarantee. Our

credibility is our history, the hi story of this conflict in which these authorities have demonstrated

maximum tolerance even at the most difficult mome nts... There are probably some exceptions

that probably only confirm the rule.” Doubt must be cast upon these words and their purpose

simply because the percentage of Serbs living in territories controlled by the Federation before the

war was 18.5 per cent. After the war only 1.9per cent of Serbs still lived there. The situation of

Serbs in the Federation was identical to that of non-Serbs in Republika Srpska. This does not

excuse the criminal acts committed, but does clarify the situation in Bosnia and Herzegovina. As I - 31 -

have said, this war was a war of all against all. Contrary to the Applicant’s contention, this war

produced victims in all communities and throughout the territory of Bosnia and Herzegovina.

198. The Applicant claims that most displ aced persons and refugees were Muslims, and

accordingly concludes that such numbers of Muslim victims of ethnic cleansing amounted to

genocide. The facts are quite different. According to Ewa Tabeau’s report, the number of refugees

and displaced persons conforms to the ethnic structure of the population in Bosnia and Herzegovina

as it was before the war. Thus Muslims, accounting for 44 per cent of the population of Bosnia and

Herzegovina before the war, accounted for 46pe rcent of the refugees and displaced persons.

Serbs, 31percent of the population of Bosnia and Herzegovina before the war, accounted for

32 per cent of refugees and displaced persons.

199. I am defending my State, Serbia and Mont enegro, against allegations of genocide, and I

do not intend to accuse anyone of crimes committed against Serbs during that terrible war. I do not

think that the crimes of one party can excuse the crimes of another. However, and solely to show

what the true nature of this war was, I must give a brief account of crimes against Serb civilians in

territories controlled by the Sarajevo Government.

200. The first refugees from the territory of Bosnia and Herzegovina were Serbs from

Bosanski Brod, Sijekovac and Kupres. Since refugees provide convincing evidence of a systematic

policy of ethnic homogenization of territories whic h could be implemented only by movements of

populations which no one will deny is often forcible, this seems an appropriate place to cite part of
41

the report by the United Nations Special Rapporteur, who states that Serbia had taken in some

445,000refugees, a majority of whom (235,000, i.e., 53percent) were from Bosnia and

Herzegovina. Most of these refugees seeking saf ety in Serbia were Serbs (80percent), but

7.8percent of all refugees seeking safety in Serbia were Muslims. The number that I have just

cited, 445,000 refugees, 235,000 coming from Bosn ia and Herzegovina, is the number of refugees

taken in by Serbia up to 1993 (United Nati ons, Sixth Periodic Report E/CN.4/1994/110,

28February1994). This number does not includ e the number of refugees going to Montenegro,

nor the much greater number coming to Serbia in 1995 after the major Croat and Muslim

offensives during which the entire Serb populatio n was expelled, for example, from places like - 32 -

Grahovo, Glamoc, Drvar and Bosanski Petrovac, to name only towns and villages in Bosnia and

Herzegovina in which Serbs accounted for about 90 per cent of the population before the war.

201. Serbia took in a great number of refug ees during the war in Bosnia and Herzegovina.

Serbia and Montenegro is accused before this Court of ethnic cleansing which, according to the

Applicant, amounts to genocide; Serbia was, and remains today, the State that took in the greatest

number of refugees from the conflict that is before this Court. If these refugees were Muslims,

how is it possible that that State, Serbia and M ontenegro, which indisputably helped them, can be

accused of genocide against the same group to wh ich it gave all the assistance of which it was

capable under the difficult conditions that it itself ha d to bear? If these refugees were Serbs, how

can it be maintained that the Serbs dominated th e non-Serbs in Bosnia and Herzegovina? Madam

President, Members of the Court, I have no wish to understate anyone’s responsibility or anyone’s

sufferings, but Serbia and Montenegro has never s ought to destroy the Muslim or Croat people, it

has never sought to destroy a national, ethnic, racial or religious group. It was overwhelmed by the

42 terrible sufferings of the refugees from neighbouring countries that it took in, never asking itself

what their nationality, their religion or their ethnic group was. My colleague Vladimir Cvetkovic

will go into greater detail in his presentation.

202. It is therefore obvious that ethnic homogenization was one of the consequences of all

the wars in the territories of the former Yugosla via, above all because of the country’s extremely

complex ethnic structure.

203. It is undeniable that homogenization wa s in part the result of migration of the

population, which was admittedly forcible but made so by the context of the war, by the fighting,

by poverty and by the insecurity inherent in any war. It is also true that the parties to the conflict

went to great lengths to displace the population by force and used criminal methods; first,

however, this policy was pursued by all parties to the conflict, and secondly, despite the fact that

criminal methods were used and these acts can ad mittedly amount to war crimes and sometimes to

crimes against humanity, in no case do they amount to genocide. - 33 -

Conclusion

204. The war in Bosnia and Herzegovina wa s ended by the Dayton Peace Accord, after

lengthy negotiations. Bosnia a nd Herzegovina survived as a State consisting of two entities:

Republika Srpska and the Croat-Mus lim Federation. The Accord also contains the Constitution of

Bosnia and Herzegovina, which confirmed this arrangement. That Constitution is still in force.

205. The nature of the war in Bosnia a nd Herzegovina was not defined by the Dayton

Accord, but it notes that this war was “a tragic even t”. And if I may add, this to me is the best

definition given of the war in Bosnia and Herzegovina. Let us say that it is the most precise

definition of that war.

206. The Dayton Accord requires all particip ants in the war to co-operate with the

International Criminal Tribunal for the former Y ugoslavia. In other words, the Dayton Accord

calls for individual responsibility to be established. On the other hand, the Accord is silent on any

collective responsibility and on State responsibility.

207. I am absolutely certain that war broke out in Bosnia and Herzegovina because of the

43 apparently irreconcilable interests of the parti es in conflict. Those interests seemed to be

irreconcilable because of the obstinacy of the l eaders of the ethno-nationalist groups, although in

reality they were not.

208. On the one hand Alija Izetbegovic, the Muslim leader, was convinced that the only

form acceptable to Bosnia and Herzegovina w as the unitary State without regional and local

divisions, although these divisions were proposed by the 1992 Cutiliero plan.

209. On the other hand the Serbs in Bosnia a nd Herzegovina wanted the creation of a Serb

territory that would unite with Serbia, or which would be in a federal or confederal relationship

with the other ethno-nationalist territories in Bosnia and Herzegovina.

210. Lastly, the Croats wanted the creation of a Croat territory that would unite with Croatia,

or which would be in a federal or confederal re lationship with the other ethno-nationalist territories

in Bosnia and Herzegovina.

211. Of course, neither Serbs nor Croats could agree on the extent of the territories that they

wished to control. Since none of the parties was ready to accept a compromise, the war broke out. - 34 -

212. The basis of this war was a struggle for te rritories, and also a struggle for power. It is

because of the struggle for power that the conflict between the parties broke out.

213. When an internal civil war starts, fear takes hold everywhere; that fear explains, though

it does not justify, many crimes committed in Bosnia and Herzegovina.

214. Fear among the Serbs was accounted for by the recollection of crimes committed by the

Ustashi during the Second World War. Bosnia and Herzegovina was then an integral part of the

independent Croat State and some Bosnian Muslims were allies of the Ustashi. Two SS divisions

were created in Bosnia and Her zegovina, Handzar and the 13th Muslim division. The Serbs’ fear

was not just a matter of history, it lived on inthe memories of those who were lucky enough to

survive the Second World War.

215. Madam President, Members of the Court, I have said and I repeat, fear and bad

memories cannot excuse or justify the crimes committed, but they can explain them. I think that

the history of Bosnia and Herzegovina and the co llective memory of its peoples are too full of

painful memories, and that they should look to the future. So I return to the proposal that I made in

44 my preliminary statement regarding the process of reconciliation. Of course, each of the peoples

living in Bosnia and Herzegovina should face up to its own history and the crimes perpetrated.

Thank you, Madam President, Members of the Court, I have now completed my pleadings.

The PRESIDENT: Thank you, Professor Stojanovi ć. The Court will now rise and the oral

pleadings of Serbia and Montenegro will resume at 10 o’clock on Monday morning.

The Court rose at 12.55 p.m.

___________