BHY
CR 2006/41 (translation)
CR 2006/41 (traduction)
Thursday 4 May 2006 at 10 a.m.
Jeudi 4 mai 2006 à 10 heures - 2 -
10 The PRESIDENT: Please be seated. Madame Fauveau-Ivanović, you have the floor.
FMUsVEAU-IVANOVI Ć: Thank you, Madam President.
GENOCIDE
I. Genocide was not committed in Bosnia and Herzegovina: the criminal acts were
not the consequence of the political objectives of the Bosnian Serbs
1. Madam President, Members of the Court, we have been able to observe during the oral
pleadings that the positions of the Applicant and of Serbia and Montenegro do not differ
substantially as regards the definition of the constituent elements of genocide enumerated in
Article II of the Genocide Convention.
2. We agree that the material elements of the crime of genocide, its actus reus , are
enumerated exhaustively in Article II of the Genoc ide Convention, and that the crime of genocide
can only be constituted by the commission of one of the acts enumerated. We have also reached
agreement on the fact that such acts constitute genoc ide only if they are committed with the intent
to destroy, in whole or in part, a national, ethnical, racial or religions group, as such.
3. However, we do not agree on the legal char acterization of the facts in the present case,
since the Applicant alleges that genocide was committed, while we consider that genocide was not
committed. Indeed, Madam President, Members of the Court, genocide was not committed in
Bosnia and Herzegovina. Neither Serbia and Montenegro nor the Bosnian Serbs had the intention
to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.
4. The Applicant claims that we have adopted an approach to individual crimes which would
be appropriate to criminal proceedings but which, according to the Applicant, is not appropriate to
these proceedings before this Court, where State responsibility must be established. However, we
did not isolate criminal acts, we placed them in context, the context of a civil war which the
Applicant ultimately recognized, albeit partially.
5. Having placed those criminal acts in context, we evaluated them one by one in the overall
11
context of the war, which included military opera tions, the chaotic political situation, the State
authorities’ lack of control over the territory a⎯ unfortunately ⎯ the criminal acts that were - 3 -
committed. The Applicant admits that the same acts may constitute war crimes, crimes against
humanity and genocide. The Applicant also adm its that such acts constitute genocide only when
they are committed with genocidal intent. And it is precisely this genocidal intent which has not
been demonstrated in the present case, and which cannot be demonstrated, as it never existed.
6. As the Applicant accuses us of not wishi ng to look at the overall picture of the crimes
committed, we shall present that picture using the sa me approach as that adopted by the Applicant.
Once again, it will not be possible to establis h genocide, since the acts committed, however
criminal they may be, do not constitute genoc ide because there was no genocidal intent and
genocide was not committed.
7. We agree with the Applicant that a plan is not a constituent element of genocide.
Genocide may be committed outside the framework of any genocidal plan. However, as the
Applicant itself states, the existence of a plan ma kes it easier to prove genocide. We support this
argument also, but we cannot accept the existence of a plan in this case, simply because no such
plan existed.
8. The Applicant seeks to infer genocidal intent from the policy objectives of the Bosnian
Serbs, and attempts to demonstrate that the cr imes committed were committed in pursuit of those
objectives, which were formulated in the Asse mbly of the Serbian People of Bosnia and
Herzegovina on 12 May 1992. We do not deny that the Bosnian Serbs had policy objectives. We
do not deny that one of those objectives, the primary objective, was the separation of peoples
through the creation of separate nation States. But that is not genocide. The political will of a
people to separate from others never constituted geno cide, it is not criminal, it is the expression of
an internationally recognized right, the right of peoples to self-determination.
9. The Applicant made several references to the genuinely multicultural nature of Bosnia and
Herzegovina. In its oral pleading on 18 April last , it stated: “Bosnia and Herzegovina was a truly
12 ethnically mixed society with the highest percentage of mixed marriages.” 1 But was Bosnia and
Herzegovina a truly multicultural society, or was it rather a society in which different ethnic and
1
CR 2006/30, p. 32, para. 31. - 4 -
religious groups lived side by side without, howe ver, mixing? The Netherlands Institute for War
Documentation noted in its report that:
“In 1981, a mere 15.3 per cent of all marriages were mixed... In 1991,
16percent of the children in Bosnia were born out of a mixed marriage. These
figures are frequently cited in the literature, but the annual averages between 1962 and
1989 sooner reveal a mixed marriage percentage of 11 to 12, a rate which remained
almost constant throughout that period. It should also be noted when considering this
figure that the mixed marriages took place mainly between members of small ethnic
groups, such as Jews and Montenegrins, fo r whom the chances of marriage within
their own group were slim. Such marriages were far less frequent among the three
large ethnic entities, viz. Croats, Muslims and Serbs. In those three groups, mixed
marriages took place mainly between Croats and Serbs (in that order), and far less
often among Muslims ⎯ 95 per cent of Muslim women and 93 per cent of Muslim
men entered into homogeneous marriages. . . It is often erroneously assumed that the
percentage of such marriages was comparatively high in Bosnia. On the contrary, it is
significant that precisely in Bosnia-Herzegovina where ethnic distribution was greater
than in the rest of Yugoslavia, the per centage of mixed marriages between 1962 and
1989 was the lowest of all republics, with the exception of Macedonia.” 2
Madam President, Members of the Court, Bosnia and Herzegovina was a State comprising three
peoples, the Muslims, the Croats and the Serbs, as well as national minorities ⎯ Jews, Roma,
Montenegrins, Yugoslavs and others. Howeve r, these populations never formed a genuinely
multicultural society, they preferred to live side by side in separate communities. The idea of
separating the three main national communities neve r entailed the intention to destroy the other
ethnic groups or some of them; quite the contrary, this idea in itself did not even entail a major
population displacement.
10. The Applicant also sought to portray the programme of the Muslim party, the SDA party,
and the armed forces of the SDA party, which constituted the Patriotic League, as a patriotic
3
programme intended to cover all the nations of Bosnia and Herzegovina . However, it can easily
be shown that the programme of the Serb party of Bosnia and Herzegovina, the SDS party, was no
different. The objectives of the SDS party, as formulated in July 1991, were the following:
13 “There can be no leading nations, no first and second class citizens no
state-forming and non state forming elements . It is a goal of the party to improve
interethnic relations, strike a balance to establish reciprocity strengthen the civil peace.
It is a goal of the party to have a fede rative Yugoslavia with an equal and whole
4
federal Bosnia and Herzegovina.”
http://www.srebrenica.nl, Netherlands Institute for War Documentatio n on Srebrenica, Part 1, The Yugoslavian
Problem and the role of the West 1991-1994, chapter 3.
3
CR 2006/30, pp. 43-44, paras. 38-40.
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Transcript, 1 February 2002, p. 1310. - 5 -
11. The Applicant states that the Bosnia n Muslims and their party had a patriotic
programme. We say that the Bosnian Serbs and th eir party had a programme which guaranteed the
equality of all nations in Bosnia and Herzegovina. The reality is that, despite everything, war did
take place in Bosnia and Herzegovina.
12. We have never considered that civil war or legitimate policy objectives could serve as an
excuse for the crimes that were committed, but we consider that these crimes must be placed in
their context. The Applicant acknowledges that it can provide no direct proof of intent, and it seeks
to infer such intent from an alleged plan, a lin e of conduct and the policy objectives of the Bosnian
Serbs. We shall show that the plan alleged by the Applicant never existed, that no discernible line
of conduct existed, and that th e crimes were not committed in pursuit of the political objectives of
the Bosnian Serbs.
(a) Analysis of the “six strategic objectives”
1. The alleged genocidal plan of the Bosnian Serbs is deduced by the Applicant from the six
strategic objectives adopted at the session of the A ssembly of the Serbian People of Bosnia and
Herzegovina on 12 May 1992. The Applicant considers that these objectives were the consequence
of the policy devised in Belgrade before the out break of the war. The Serbs of Bosnia and
Herzegovina proclaimed their stra tegic objectives in May 1992 and ⎯ we acknowledge ⎯ these
objectives were their policy objectives. However, in the first place, these objectives were the
objectives of the Bosnian Serbs, the Serbs born in Bosnia and Herzegovina who possessed Bosnian
nationality. Secondly, it is clear that these objectives were not devised in advance, and certainly
not before the war. They were the outcome of th e overall situation, both political and military, in
Bosnia and Herzegovina in the spring of 1992. Th e strategic objectives of the Bosnian Serbs were
the objectives they were forced to adopt in order to address the worryi ng turn of events in Bosnia
14
and Herzegovina. A reading of these objectives le aves no room for doubt that they involved no
genocidal intent, no criminal intent; they were merely the expression of the will of the Bosnian
Serb people, born of their fear of the chaotic events sweeping the country.
2. The Applicant persistently seeks to deny that the Bosnian Serbs could have felt any fear.
It denies that the Bosnian Serbs could have been relegated, in Bosnia and Herzegovina, from the - 6 -
status of constituent people to minority status. It even attempted to discredit this hypothesis by
declaring that all the peoples of Bosnia and Herzegovina were minorities, since none of them
constituted the absolute majority . It is true that, in demographic terms, all the peoples were
minorities, but the Muslims, Croats and Serbs were the constituent peoples of the State of Bosnia
and Herzegovina. Under the C onstitution of Bosnia and Herze govina, any important decision
should have been taken with the agreement of the representatives of those three peoples, on the
explicit understanding that lack of such agreemen t invalidated any decisi on. Madam President,
Members of the Court, the decision concerning the independence of Bosnia and Herzegovina was
taken without the participation of the Serb pe ople, and this decision obviously violated the
constitutional rights of the Bosnian Serb people. The Serb people feared being relegated to the
status of a minority, and this fear was well founded.
3. In May 1992, the National Assembly of the Serbian People of Bosnia and Herzegovina
adopted the following strategic objectives:
“1. Establish State borders separating the Serbian people from the other two ethnic
communities;
2. Set up a corridor between Semberija and Krajina;
3. Establish a corridor in the Drina River Valley, that is, eliminate the Drina as a
border separating Serbian States;
4. Establish a border on the Una and Neretva Rivers;
5. Divide the city of Sarajevo into Serb ian and Bosnian Muslim parts and establish
effective State authorities in both parts;
6
6. Ensure access to the sea for the Republika Srpska.”
15 4. None of these goals refers to the destruc tion of the non-Serb peoples, none of these goals
implies any such destruction, their exclusive pur pose being to enable the Bosnian Serb people to
create their own State.
5. In the Judgment delivered in the Brdjanin case, the Trial Chamber of the Tribunal for the
former Yugoslavia found that: “In essence, these strategic goals constituted a plan to seize and
control territory, establish a Bosnian Serb state, defend defined borders and separate the ethnic
5
CR 2006/30, p. 37, para. 21
ICTY, Prosecutor v. Radoslav Krstic , case No. IT-93-33-T, Judgement, 2 August 2001, para.562,
Exhibit P 562. - 7 -
groups within BiH.” Such was the conclusion of the Trial Chamber in the Brdjanin case at the end
of proceedings lasting three years. The conclusion of the Tribunal for the former Yugoslavia
contains no indication that these goals were supposedly a genocidal plan. The Tribunal’s
conclusion is the only logical one since the plan wa s not genocidal. It was no more than a plan to
establish the Serb State of Bosnia and Herzegovina , a plan for which there were deep historical
reasons and which had been engendered by the ex tremely tense political situation in Bosnia and
Herzegovina in spring 1992.
6. The first of the six strategic goals is the main one. It calls for the creation of State borders
separating the territories under the control of th e Serbian people from territories under the control
of the two other main ethnic communities. It ca lls for the establishment of the State, it does not
call for ethnic cleansing. The establishment of the national or ethnic State does not mean the
cleansing of persons not part of the majority popul ation group. All it means is that the majority
group wishes to govern. The strategic plan of the Bosnian Serbs therefore calls neither for ethnic
cleansing nor genocide.
7. However, the Applicant sees in the desire , the legitimate desire, of the Bosnian Serb
people to have their own State, a desire to have an ethnically pure State, and even the desire to
destroy the non-Serbs. Such an interpretation can only stem from an ignorance of history and of
the ethnic reality of Bosnia and Herzegovina or from a distortion of that reality.
8. At the Sixteenth Session of the Assemb ly of the Serbian People in Bosnia and
Herzegovina, held on 12May 1992 at BanjaL uka, the President of Republika Srpska, Radovan
Karadzic, explained the meaning of the separatio n of the peoples and the establishment of the
16 borders. He said: “It would be much better to solv e this situation by political means. It would be
8
best if a truce could be established right away and the borders set up, even if we lose something.”
9. Bosnia and Herzegovina was a State made up of three constituent peoples: the Muslims,
Serbs, and Croats. All these peoples had their own cultures and traditions, but all considered
Bosnia and Herzegovina to be their country. All these peoples had the same constitutional rights in
7
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 76.
8Verbatim record of the Sixteenth Session of the Assemb ly of the Serbian People in Bosnia and Herzegovina on
12 May 1992 at Banja Luka, ICTY, Brdjanin case No. IT-99-36-T, exhibit P 50A, p. 52. - 8 -
Bosnia and Herzegovina, but the situation cha nged when, at the end of 1991, the National
Assembly of Bosnia and Herzegovina decided, against the will of the Serb people, to hold a
referendum on independence.
10. Bosnia and Herzegovina was a State consisting of three peoples, each having the
constitutional right to secession, since the federal constitution of socialist Yugoslavia, as adopted in
1974 and still in force in Bosnia and Herzegovina at the time, guaranteed the right of secession to
the peoples and not to the republics. The first goa l proclaimed by the Assembly of the Serbian
People in Bosnia and Herzegovina was nothing other than the affirmation of the will of the Serbian
people to make use of the right to secession, in accordance with the Yugoslav constitution then in
force. The right to secession, gu aranteed by the Yugoslav cons titution, was an expression of the
right to self-determination well established and recognized in international law. In no event can the
first strategic goal be considered genocidal or criminal.
9
11. In interpreting the first strategic goal, the Applicant cites the English translation of the
address by Radovan Karadzic delivered at the session of the Assembly of Republika Srpska held on
18 and 19 July 1994. According to the translation presented, Radovan Karadzic said:
“We certainly know that we must give up something ⎯ that is beyond doubt in
so far as we want to achieve our first strate gic goal: to drive enemies by the force of
war fro10their homes, that is Croats and Muslims so that we no longer be together in a
State.”
17 12. In fact, there is an error in the most important part of the translation, as
RadovanKaradzic never said that the goal was “t o drive enemies by the force of war from their
homes”. The transcript of Radovan Karadzic’s address clearly shows that he never said anything of
the kind. He did not say that the objective was to “to drive enemies by force from their homes” but
to “free their homes of the enemy” 11. The meaning of the words actually spoken by
RadovanKaradzic is completely different from th e translation presented by the Prosecutor of the
9The translation is taken from ICTY, Prosecutor v. Slobodan Milosevic, case No. IT-02-54-T, exhibit P 537, The
Assembly of Republika Srpska 1992-1995: Highlights and Excerpts by Robert J. Donia, p. 64.
10CR 2006/4, p. 19, para. 38.
11“Da se ratosiljamo neprijatelja iz kuce ”, Assembly of Republika Srpska, session of 18-19 July 1994, Expert
Report by Robert Donia submitted in the case concerning Prosecutor v. Milosević, exhibit ERN 0215-2799 ⎯
0215-2809, p. 71 - 9 -
Tribunal for the former Yugoslavia and reiterated by the Applicant. The goal was not to drive the
enemy from their houses, but to liberate the State of the Bosnian Serbs from the enemy.
13. The address by Radovan Karadzic also n eeds to be analysed in its context.
RadovanKaradzic was speaking in the context of the discussion on the plan proposed by the
Contact Group. The Contact Group’s plan e nvisaged the separation of the peoples. The
Prosecutor’s expert witness Robert Donia wrote in his report presented to the Tribunal for the
former Yugoslavia in the Milosevic case that: “the delegates pass a five-point resolution that
straddles the fence agreeing in principle to terr itorial separation from the other two groups and
12
accepting the plan as the basis for further negotiations” . It is thus absolutely clear that the plan of
the Contact Group, the plan of the interna tional community, envisaged an ethnically-based
separation. The general context of this plan w as acceptable to the Bosnia n Serbs. On the other
hand, they could not reach agreement between themselves on the territories which would have
remained under their control and those which would have to be abandoned.
14. All the other goals proclaimed by the As sembly of the Serbian People in Bosnia and
Herzegovina were merely the means envisaged for ensuring the viability of the State desired by the
Bosnian Serbs. The address by Momcilo Krajisni k, President of the Assembly of the Serbian
People in Bosnia and Herzegovina, delivered at its 16th session on 12 May 1992, clearly shows that
the other goals were simply a means of implementing the first goal ⎯ the creation of the State of
18
Bosnian Serbs. What he said was: “The first goa l is the most important one and in relation to all
13
other goals, all other goals are sub-items of the first one.”
15. Hence, the second goal, the corridor between Semberija and Krajina, was necessary to
the survival of the Serbs in Bosan ska Krajina. Bosanska Krajina is the region in western Bosnia
having a border with Croatia, but no common borde r with Serbia. The great majority of the
population of Bosanska Krajina was of Serbian nationality. Without the corridor, these Serbs in
Bosanska Krajina would have been cut off from Se rbia as well as from eastern Bosnia. When the
strategic goals were proclaimed, in spring 1992 , the region of Bosanska Krajina was completely
12
ICTY, Prosecutor v. Slobodan Milosevic, case No. IT-02-54-T, exhibit P 537, The Assembly of Republika
Srpska 1992-1995: Highlights and Excerpts by Robert J. Donia, p. 64.
1Verbatim record of the Sixteenth Se ssion of the Assembly of the Serbian people in Bosnia-Herzegovina, on
12 May 1992, at Banja Luka, ICTY case concerning Brdjanin (IT-99-36-T), exhibit P 50A, p. 13. - 10 -
isolated from the other territories populated by Se rbs, the population was receiving no supplies,
there was a dearth of basic items essential to survival; the corridor was the only chance of survival
for hundreds of thousands of people who, moreover, were not all Serbs.
16. The third strategic goal, the elimination of the border between the two Serb States on the
river Drina is understandable in the context of the constitutional right of secession conferred on the
peoples by the Yugoslav Constitution. In fact, the intention of the Bosnian Serbs to join Serbia and
create a Serb State is only logical. It is no mo re than the expression of the right of peoples to
self-determination. However, this intention w as peculiar to the Bosnian Serbs, and it was not
shared by the rulers of Republika Srpska or by th e State of Serbia and Montenegro. It was the
expression of the will of a people, the expression of a legitimate will. This goal was devoid of any
criminal intent. At the 16th session of the Asse mbly of the Serbian People in Bosnia-Herzegovina,
held on 12 May 1992, Radovan Karadzic explained the third strategic goal:
“We and our strategic interests and our living space are on both side of the
Drina. We now see possibility for some Muslims municipalities to be set up along the
Drina as enclaves in order for them to achieve their rights, but it must basically belong
to Serbian Bosnia and Herzegovina.” 14
This statement clearly shows that the goal is te rritorial and expresses the will of the Bosnian Serbs
to be linked to Republika Srpska and to its people. This will was the will of the Serbs of Bosnia,
not of the Serbs of Serbia or of Serbia and Mont enegro. The statement also shows that the purpose
19
of this goal was not to drive out the Bosnia n Muslims from their houses, since Radovan Karadzic
envisaged the possibility that the Muslims would stay and would even have their own enclaves,
self-governing territories. At the time, the Bosn ian Serbs were offering the Bosnian Muslims the
opportunity to exercise their right of self-determination. They could reasonably offer them nothing
more.
17. The fourth strategic goal was to fix the borders of this projected Serb State along the Una
and Neretva rivers. One of the maps put forward by the European Union in its attempts to resolve
the conflict also set the border along the river Un a, as Radovan Karadzic explained at the Session
of the SerBiH Assembly of 12May1992. We can debate the justification for a border along the
Una river, we can regard it as justified or unjustif ied, but the stated goal in itself certainly implied
14
Ibid., p. 14. - 11 -
no criminal intent. It could be regarded as wrongful in international law, since it breaches the
principle of the intangibility of frontiers, but it can in no way be viewed as the intent to destroy a
people. This goal involved no intent to cleanse ethnically and did not call for criminal acts towards
a national, ethnic or religious group.
18. The fifth strategic goal concerned Sarajevo and the division of the city into two parts,
one of which would have belonged to the Serbs and the other to the Muslims. This goal in itself
demonstrates that the Serbs had no intention of er adicating the Muslim population. If their intent
had been the destruction of Bosnia’s Muslims, they would not have proposed the establishment of a
Muslim sector of Sarajevo. In his speech to th e Sixteenth Session of the SerBiH Assembly on
12May1992, Radovan Karadzic’s asserted the Bosn ian Serbs’ aim of creating their own State
without any intent to cause harm to the Muslims. Radovan Karadzic said:
“We did not want in Sarajevo. We wanted the Serbian police to control the
Serbian part of the town, to be responsi ble for the Serbian part of the town and
Muslims for the Muslim part, and to divide the city without any fighting both in the
whole of Bosnia and Herzegovina and in Sarajevo itself. All of that could be done in a
peaceful manner. Sarajevo would not be the first or only border city.” 15
20 19. For certain understandable reasons, which c ould be termed historical, the Bosnian Serbs
feared for their lives, their homes and their future. They were quite simply afraid of not surviving
in Bosnia and Herzegovina. Owing to these fear s, the Bosnian Serbs no longer wanted to live
alongside the Croats and Muslims in the same State. They wanted their own State, a Serb State, in
accordance with the Constitution in force, which r ecognized their right to a State. The fifth goal
clearly demonstrates that the only intention of th e Serbian people in Bosnia and Herzegovina was
the creation of a separate State. The aspirati on to establish a Serbian State of Bosnia and
Herzegovina did not deny either the Muslims of their right to their own State or the right of
members of the Muslim population to live in the Serb State, if they so wished.
20. Lastly, the sixth goal was a fairly common aspiration among States to gain access to the
sea and thus avoid being landlocked. In the fo rmer Yugoslavia, Bosnia and Herzegovina had
obtained access to sea, with the access running acro ss Croatian territory, splitting the Republic of
Croatia in two. The Serbian population of Bosnia viewed it as only normal to secure such access.
15
Minutes of the Sixteenth Session of the SerBiH Assembly of 12 May 1992 at Banja Luka, ICTY, Prosecutor v.
Brdjanin, case No. IT-99-36-T, Prosecution Exhibit P 50A, p. 10. - 12 -
However, the Bosnian Serbs never made a serious at tempt to achieve this goal. When the strategic
goals were adopted, Radovan Karadzic explained that: “[i]t is very important but there are things
that are more important than others or more feasi ble than others. We do not know how feasible
16
that is . . .”
21. The sole purpose of these goals was, con sequently, the separation of the States and the
creation of a Serb State. The goals of the Serb people did not deny the rights of other peoples.
Momcilo Krajisnik, President of the SerBiH Assemb ly, alluded to creation of three separate States
in his speech to the Sixteenth Session on 12 May 19 92, affirming: “We [the Serbs] can part from
them [the two remaining national communities] if Bo snia and Herzegovina is to be torn into three
17
parts.”
22. The Serb goals proclaimed at the 12 May 1992 Session of the SerBiH Assembly were not
21 the cause of the war, but the consequence of the chaotic political situation obtaining in Bosnia and
Herzegovina at the time of their adoption. They we re not plotted in advance, they were not tied to
the will of the leadership of the Krajina Serbs in Croatia, notably Milan Babic, nor were they tied to
the will of the leadership of Serbia and Monten egro, notably Slobodan Milosevic. They were an
expression of requirements arising out of the outbreak of war in Bosnia and Herzegovina and of the
historically understandable fear of the Serbs who lived there.
(b) Criminal intent cannot be deduced from the acts and events related to the six strategic
goals
23. The Applicant has cited a series of statem ents by Bosnian Serb leaders in order to
establish genocidal intent. As none of the speeches at issue show genocidal intent or evidence that
such intent could be deduced from them, the Applic ant cites passages out of context, attributing to
them a meaning they do not have.
24. Thus the Applicant referred to a sp eech by Radovan Karadzic to the Session of
18
15October1991 of the Assembly of Bosnia and Herzegovina . The Applicant tried to
16
Minutes of the Sixteenth Session of the SerBiH Assembly of 12 May 1992 at Banja Luka, ICTY, Prosecutor v.
Brdjanin, case No. IT-99-36-T, Prosecution Exhibit P 50A, p. 14.
17
Ibid., p. 52.
18CR 2006/6, p. 31, para. 11. - 13 -
demonstrate genocidal intent by quoting out of context a well chosen part of the declaration. The
passage cited was:
“This [by which he meant independence] is the road that you want Bosnia and
Herzegovina to take, the same highway of hell and suffering that Slovenia and Croatia
went through. Don’t think that you won’t take Bosnia and Herzegovina to hell and the
Muslim people to possible extinction because the Muslim people will not be able to
defend itself if it comes to war here.”
In order to understand this speech, however, it must be put into its context. It was made at the
height of the war in Croatia during a debate on the independence of Bosnia and Herzegovina. It
was not a threat, but an entreaty, an appreciation of the situation in Bosnia and Herzegovina, where
ethnic tensions were palpable and all three segments of the population well armed. When the cited
22 passage is put into context, the d eclaration can clearly be seen as an entreaty. In effect, before the
passage quoted by the Applicant, Radovan Karadzic said: “I beg you once again, I do not threaten
you, I beg you to understand seriously the interp retation of the political will of the Serbian
people... Please understand seriously it is not good what you are doing.” Moreover, the part
quoted by the Applicant was followed by an explana tion by Radovan Karadzic: “Please, these are
important words, important situations have important words, how will you prevent that anyone kills
everyone in Bosnia and Herzegovina.” Alija Izetbegovic took the floor after RadovanKaradzic,
but the latter spoke once again, providing an additi onal explanation to his declaration: “Muslim
leaders spoke clearly until now that if it come s to the catastrophe it would be primarily the
catastrophe of the Muslim people, it is also the catastrophe of the Croat and Serbian people.” 19
25. Moreover, a few days after the session of the Bosnian National Assembly at which this
speech was delivered, Radovan Karadzic explained in an interview that the contentious phrase was
only a citation of the words of Muhamed Filipovic, one of the Bosnian Muslim leaders, who had
previously stated, in the same Assembly of Bosn ia and Herzegovina, that: “if we do not reach an
agreement but choose some other ways (division of the Bosnia and Herzegovina) that will be the
beginning of the end of the Muslim people” 20. Thus, the Applicant not only cited the words of
19
ICTY, Prosecutor v. Radovan Karadzic and Ratko Mladic , case No.IT-95-05 & 18-PT, Review of the
Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, p. 29.
2Daily newspaper Politika, 17 October 1991, p. 5. - 14 -
Radovan Karadzic out of context, but also omitted to mention that those words merely paraphrased
the words used by one of the Bosnian Muslim leaders.
26. The Applicant is unable to find any basis, in the statements made at the time of the
adoption of the six strategic objectives by the Bosn ian Serb leaders, for its contention that the
strategic objectives entailed the ethnic cleansing of Bosnian Muslims and/or Bosnian Croats. For
this reason, the Applicant unsuccessfully seeks confirmation of its unfounded argument from other
sources. In particular, it refers to statements ma de more than a decade after the events. It also
interprets the statements and the events in an illogical manner, seeking to endow them with a
genocidal intent which it is impossible to establish because it never existed.
23 27. Thus, the Applicant seeks confirmation of its allegations in the Biljana Plavsic case, tried
by the Tribunal for the former Yugoslavia 21, by misinterpreting the meaning of the evidence
presented in that case. The Applicant refers to a document which it describes as a statement by
Biljana Plavsic. However, the document c ited by the Applicant is not a statement by
22
Biljana Plavsic, but the factual basis for a guilty plea . This is a document whose content was the
subject of discussion and subsequent agreement betw een the Prosecutor and Biljana Plavsic. It is
nothing more than an agreement acceptable to both parties, which serves their interests.
Biljana Plavsic was indicted in criminal proceed ings and reached an agreement which enabled her
to receive a reduced sentence. This agreement can in no sense be considered a statement by
Biljana Plavsic, and in no event can it be used as a factual finding by the Tribunal. Consequently,
the facts alleged therein cannot be considered as established facts.
28. Moreover, in the Stakic case, the Trial Chamber assessed the value of possible testimony
by Biljana Plavsic. Having found that Biljana Plavsic had pleaded guilty to the crime of
persecution (a crime against humanity), the Tribunal held that it was unlikely that she could or
would provide evidence from which the existence of genocidal intent could be inferred 23.
29. A similar assessment can be made of th e meeting allegedly held in July1991, in
Belgrade, between Milan Babic, President of Republ ika Srpska Krajina, which was in Croatia, and
2CR 2006/2, p. 48, para. 67 and CR 2006/32, p. 11, para. 7.
22
ICTY, Prosecutor v. Biljana Plavsic , case No.IT-00-39 & 40-PT, Factual Basis for Plea of Guilt,
30 September 2002.
2ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 550. - 15 -
Radovan Karadzic and Slobodan Milosevic. The Ap plicant accepted as true the facts presented by
Milan Babic. According to the latter’s testimony before the Tribunal for the former Yugoslavia in
the Milosevic case, Radovan Karadzic allegedly said at that meeting that he “would chase the
24
Muslims into the river valley in order to link up all Serb territories in Bosnia and Herzegovina” .
24 This statement by MilanBabic was contested by Slobodan Milosevic under cross-examination 25.
Slobodan Milosevic not only denied the statement a ttributed to Milan Babic, he also gave a
completely different version of what transpired at that meeting and of the content of the
conversations that took place. According to Slobodan Milosevic, Radovan Karadzic, in the
presence of Milan Babic, said that: “the Serbs and Muslims have excellent relationships, that your
adventure was undermining the trust between the Serbs and Muslims, and that it was inflicting
26
enormous damage to harmony achieved in Bosnia and Herzegovina” .
30. Consequently, with regard to the meeting he ld in Belgrade in July 1991 and referred to
27
by the Applicant , we have the word of Slobodan Milosevic against the word of Milan Babic.
While Slobodan Milosevic was at that time an indictee before the Tribunal for the former
Yugoslavia, Milan Babic, at the time of his testimony in the Milosevic case, had the status of a
28
suspect . It is reasonable to assume that Milan Babic, as a prosecution witness, was prepared to
make a statement which could be characterized as inaccurate at the least, in order to avoid being
indicted.
31. It is true that the Trial Chamber of th e Tribunal for the former Yugoslavia reported the
part of Milan Babic’s testimony cited by the App licant in its Decision on Motion for Judgement of
29
Acquittal . However, this decision, handed down pursuant to Rule 98 bis of the Tribunal’s Rules
of Procedure and Evidence, does not establish the f acts, but merely notes the likelihood that those
facts occurred in the manner d escribed by the Prosecutor. Decisions on motions for acquittal are
2ICTY, Prosecutor v. Slobodan Milosevic, case No. IT-02-54-T, Transcript, p. 13055.
25
Ibid., pp. 13809-13819.
26
Ibid., p. 13811.
2CR 2006/4, p. 11, para. 5; CR 2006/30, pp. 42-43.
2Mr. Babic testified in the Milosevic case from 19 November to 9 December 2002, and was indicted by the ICTY
Prosecutor in November 2003. See ICTY, Prosecutor v. Milan Babic, case No. IT-03-72.
2ICTY, Prosecutor v. Slobodan Milosevic, case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal,
16 June 2004, para. 253. - 16 -
rendered after the close of the Prosecutor’s case and are founded on the evidence submitted by the
Prosecutor. However, at this stage of the proceedings, the defence case still has to be presented and
the defence still has the possibility of demonstr ating that the Prosecutor’s allegations are
unfounded. In the case of Milan Babic’s testim ony, because of the death of Slobodon Milosevic,
25 the Trial Chamber did not have the opportunity to ev aluate the evidence presented during the trial.
Consequently, it cannot be considered that the Tribunal accepted Milan Babic’s testimony or that it
would have accepted that testimony.
32. Moreover, Milan Babic gave evidence concer ning a meeting allegedly held in July 1991.
If that meeting was held in July 1991, it is cl ear that Slobodan Milosevic had no influence over the
Bosnian Serbs or, more specifically, over the Se rbs of Bosanska Krajina. The presentation of
evidence by Milan Babic even calls in question Radovan Karadzic’s influence over the Serbs of
Bosanska Krajina. Indeed, in December 1991, several months af ter the Belgrade meeting, the
Serbs of Bosanska Krajina were still seeking to join forces with the Serbs of Republika Srpska
Krajina, whose president was Milan Babic 3.
33. However, some of the facts presented by Milan Babic can be accepted because they were
confirmed by other evidence and were not cont ested by Slobodan Milosevic. For example,
Milan Babic admitted that he had wanted to create a common State incorporating Republika Srpska
Krajina, situated in Croatia, and Bosans ka Krajina, situated in western Bosnia 31. It is also
apparently not in dispute that Radovan Karadzic and Slobodan Milosevic were not in favour of this
plan for unification and creation of a Serb State. Milan Babic stated unambiguously that the plan to
unify the two Krajinas was not carried out because of opposition from both Slobodan Milosevic
and Radovan Karadzic 3. Thus, it is clear that Slobodan Milosevic and Radovan Karadzic had no
plan for the creation of a Serb State. It is also clear that, at the time, the plan aimed at enabling all
Serbs to live in one State did not exist. Ra dovan Karadzic’s opposition to such unification was
made clear in a conversation he had with Sloboda n Milosevic on 20 December 1991, in which he
informed Slobodan Milosevic of the wish of the Bo sanska Krajina Serbs to unite with the Serbs of
30
ICTY, Prosecutor v. Slobodan Milosevic , case No. IT-02-54-T, Exhibit P 613/37, Conversation between
Radovan Karadzic and Slobodan Milosevic on 20 December 1991.
31
ICTY, Prosecutor v. Slobodan Milosevic, case No.IT-02-54-T, Transcript, p. 13055.
3Ibid., p. 13810. - 17 -
Croatia in the following terms: “my people in Krajina those fools, wanted to make decision today
on unification of Krajina and SAO Krajina” . 33
26 34. The Applicant also attempts to draw conclusions from intercepts of conversations
between Radovan Karadzic and Slobodan Milosevic. According to the Applicant, Radovan
Karadzic and Slobodan Milosevic spoke at least 45times between 29May 1991 and
10 February 1992 3. The mere fact that Radovan Karadzic and Slobodan Milosevic were in contact
is seen by the Applicant as proof of their joint plan. We do not deny that these conversations took
place, but we cannot accept the Applicant’s conten tion. These conversations were neither illegal
nor criminal, they were logical and unexceptiona l. Slobodan Milosevic was the President of the
Republic of Serbia and Radovan Ka radzic was the President of the Serbian party in Bosnia and
Herzegovina. Both of them were at the time livi ng in a single State, that of Yugoslavia, which was
internationally recognized.
35. It does not matter how many conve rsations Radovan Karadzic had with
SlobodanMilosevic. Their subject-matter shows that neither of them harboured criminal intent.
These conversations do not possess the meaning that th e Applicant wishes to attribute to them and
can in no respect be interpreted as “regular contacts during the preparatory phases of genocidal
35
conflict” .
36. The Applicant refers specifically to the conversation betwee n Radovan Karadzic and
Slobodan Milosevic of 24 October 1991, in wh ich Radovan Karadzic said: “We will establish
Yugoslavia in all areas where we live . . . and we have to establish authority and control over our
36
territories, so that he doesn’t get his sovereign Bosnia.” True, those were Radovan Karadzic’s
words, but in the same conversation he also said: “We will recognize this government as the
federal BiH Government but we will have to go on to organize our own authorities wherever the
37
existing legal one is where this one is legal.”
33ICTY, Prosecutor v. Slobodan Milosevic , case No. IT-02-54-T, Exhibit P 613.37, Conversation between
Radovan Karadzic and Slobodan Milosevic on 20 December 1991.
34
CR 2006/4, p. 11, para. 8.
35
CR 2006/4, p. 11, para. 8.
36Ibid., p. 12, para. 9.
37ICTY, Prosecutor v. Slobodan Milosevic, case No. IT-02-54-T, Prosecution exhibit P613/100, Conversation
between Radovan Karadzic and Slobodan Milosevic on 24 October 1991. - 18 -
37. What that conversation makes apparent is the process of politically organizing the Serb
population in Bosnia and Herzegovina, but within the framework of Bosnia and Herzegovina,
while recognizing its Government. Moreover, Radovan Karadzic spoke of establishing
27 Yugoslavia, and Yugoslavia was certainly not an ethnically pure State. It was, rather, by its nature,
in its essence, a mix of peoples. There is nothing in that conversation that can be interpreted as a
call to ethnic cleansing.
38. As the Applicant has made frequent refe rence to those conversations, we shall examine
their content in order to show that they cannot, in any respect, be interpreted as a preparation for
criminal acts. We shall demonstrate that the purpose of those discussions was to find a peaceful,
political solution to the situation in Bosnia and Herzegovina, where instability was already apparent
at the time.
39. The conversation intercepted from 29May1991 contained the following statement by
Radovan Karadzic regarding the future organization of Bosnia and Herzegovina:
“Izetbegovic talked about the division of Bosnia explicitly and openly, he had
never been more explicit! I, we were shoc ked. We hadn’t thought about that. Then
we discussed what to do and how ⎯ they don’t want to stay in Federal Yugoslavia
and we don’t want to leave Federal Yugoslavia . . . We did not want to leave and we
38
still believe that it would be a pity if Bosnia were to fall apart.”
40. In that conversation, Radovan Karadzic al so spoke of security, as disorder was already
spreading in Bosnia and Herzegovina. In these ci rcumstances, he mentioned the efforts he had
made to avoid a deterioration of the situation. He said:
“I sent Koljevic to Eastern Herzegovina to shut up those halfwits because we do
not need any Chetniks to march up and down BiH... I sent Nikola Koljevic down
there to organize them politically . . . he is also to organize a civil panel discussion for
39
both Serbs and Muslims because the Muslims are afraid of the Serbs there.”
41. The conversation of 31 July 1991 demonstrates that Radovan Karadzic, the Bosnian Serb
leader, was trying to work together with the l eaders of the Bosnian Muslims and organize joint
demonstrations .40
38
ICTY, Prosecutor v. Slobodan Milosevic , case No. IT-02-54-T, Prosecuti on exhibit P613/1, Conversation
between Radovan Karadzic and Slobodan Milosevic on 29 May 1991.
39
Ibid.
4ICTY, Prosecutor v. Slobodan Milosevic, case No. IT-02-54-T, Prosecuti on exhibit P613/25, Conversation
between Radovan Karadzic and Slobodan Milosevic on 31 July 1991. - 19 -
42. The conversation of 13 September 1991 shows that the Bosnian Serbs were willing to do
anything to avoid the war. In this conver sation, Radovan Karadzic said: “We accepted both
Muslim initiatives. Either the whole of the BiH in a Federal State of Yugoslavia or like this
28 regional BiH in some Yugoslavia, in which we will have special relations with the federal State and
41
Serbia.”
43. It is, moreover, not difficult to understand that, even on the eve of the war, the Bosnian
Serbs persevered in their attempts to find a peacef ul solution. At the 14th Session of the SerBiH
Assembly on 27 March 1992, Radovan Karadzic declared:
“War in BiH will not solve anything... we should strive to maintain peace.
Peace is in our interests and benefits us politically. The Conference on BiH has
yielded positive results. They think they ha ve been defeated. They are wrong, they
would obtain as much as we did, in addition to join the organs of BH.” 42
44. Clearly, the intercepted conversations do not support the Applicant’s argument.
45. Having failed to show, with credible ev idence, what cannot in any case be shown, the
Applicant turned to the testimony of Miroslav Deronjic before the Tribunal for the former
Yugoslavia. According to Miroslav Deronjic, Ra dovan Karadzic said to him at the beginning of
1991 that, if the Socialist Federal Republic of Yugos lavia ceased to exist, the Serbs would have no
other option than the creation of a Greater Serbia . 43
46. Miroslav Deronjic’s statements contain numerous discrepancies. When giving evidence
in his own case, Miroslav Deronjic explained that he was incapable of citing the exact words used
by Radovan Karadzic, but that the sentence indicated conveyed the meaning that Radovan Karadzic
intended. He also declared that that was the fi rst time that he had heard the expression “Greater
29 44
Serbia”, adding that he had never heard it before or seen in it any political programme . However,
Miroslav Deronjic subsequently testified in the Krajisnik case. While he repeated the major points
of his previous testimony, he added that he had known the expression “Greater Serbia” as it
41
ICTY, Prosecutor v. Slobodan Milosevic, case No. IT-02-54-T, Prosecuti on exhibit P613/63, Conversation
between Radovan Karadzic and Slobodan Milosevic on 13 September 1991.
42
Minutes of the 14 Session of the SerBiAssembly of 27 March 1992, p. 24, ICTY, Prosecutor v. Radoslav
Brdjanin, case No. IT-99-36-T, Prosecution exhibit P 2475.
43
CR 2006/4, p. 15, para. 24.
4ICTY, Prosecutor. v. Miroslav Deronjic, case No. IT-02-61-S, Transcript, p. 113. - 20 -
featured in certain political programmes and, more precisely, primarily in that of the Radical
Party .5
47. The Sentencing Judgement in the Miroslav Deronjic case includes parts of his testimony,
but it should be noted that there was no trial of Miroslav Deronjic, as he pleaded guilty and came to
a plea agreement with the Prosecutor. This agreement included inter alia an obligation to testify in
a number of cases, which Miroslav Deronjic did. His various statements contain numerous
discrepancies, as was remarked upon by Trial Chamber II in the Sentencing Judgement:
“Immediately after the Sentencing Hearing, the Trial Chamber revisited
Miroslav Deronjic’s Testimony and compared it with the Indictment and the Factual
Basis. As a result of this comparison, th e Trial Chamber identified discrepancies that
prompted the Trial Chamber to again examine all previous statements of the Accused.
After reviewing in greater detail the Indictment, the Factual Basis, the Deronjic
Testimony, all of his prior testimonies and statements, and in particular his witness
statement of 25 November 2003, the Trial Ch amber came to the conclus46n that on a
prima facie basis there were substantial material discrepancies.”
The Trial Chamber, moreover, even found discrep ancies between the Factual Basis of the Plea
47
Agreement and the Indictment .
48. The Trial Chamber in the Deronjic case was not the only one to notice the numerous
discrepancies in Miroslav Deronjic’s statements. The ICTY Appeals Chamber refused to grant any
credence to Miroslav Deronjic’s testimony in the Krstic case, finding that:
“the Appeals Chamber is hesitant to b ase any decision on Mr.Deronjic’s testimony
without having corroborating evidence. Th e discrepancies in the evidence given by
Mr.Deronjic and the ambiguities surroundi ng some of the statements he made,
particularly with respect to his sighting of Krstic at Hotel Fontana, caution the Appeals
48
Chamber against relying on his evidence alone.”
49. The contradictions in the statements a nd testimony of Miroslav Deronjic do not just
concern the aforementioned meeting that he is sai d to have had with Radovan Karadzic. The Trial
Chamber in the Deronjic case found a great many inconsistencies, the Appeals Chamber in the
30 Krstic case rejected all of his testimony and Miroslav Deronjic himself admitted that his statements
4ICTY, Prosecutor v. Momcilo Krajisnik, case No. IT-00-39&40-T, Transcript, p. 1142.
46
ICTY, Prosecutor v. Miroslav Deronjic, case No. IT-02-61-S, Sentencing Judgement, 30 March 2004, para. 35.
47
Ibid., para. 28.
4ICTY, Prosecutor v. Radoslav Krstic, case No. IT-98-33-A, Judgement, 19 April 2004, para. 94. - 21 -
were not entirely truthful , as has already been shown by our Co-Agent, Mr. Vladimir Cvetkovic.
Hence, any version of events given by Miroslav Deronjic must be thoroughly verified and assessed.
In view of the contradictions and discrepancies tainting Miroslav Deronjic’s statements, they
cannot be regarded as truthful unless they are corroborated by other evidence.
50. The Applicant also refers to the document produced by the SDS party leadership on
19December1991 entitled “Variant A and B Instru ctions”, supposedly issued to SDS municipal
leaders 5. This was a policy document, issued in res ponse to the decision by the Croat and Muslim
deputies regarding the organization of a referendu m on Bosnia and Herzegovina’s independence.
The decision on holding a referendum was taken contrary to the wishes of the Serb deputies, thus
against the will of the Serb people and in viola tion of the Constitution of Bosnia and Herzegovina,
which required a consensus of the three constituent peoples for all important decisions.
51. The primary rationale of the “Variants A and B Instructions” was the defence of the Serb
population, as is clearly indicated in its introductio n. If the instructions can be interpreted as an
expression of the Serb population’s aspiration to ha ve its own State or, more particularly, of its
aspiration to remain within Yugoslavia, they cannot, in any way, be regarded as a call to attacks on
the Muslims and Croats. The instructions did no t call for ethnic cleansing. No genocidal or
criminal intent can be inferred from them.
52. One month before the “Variant A and B In structions” were issued, Momcilo Krajisnik,
chairman of the SerBiH Assembly, declared to a Session of that Assembly on 11 November 1991:
“In everything we do we should consider our co mplex social and political situation. All the
31 proposed solutions must be based on the Constituti on and the laws, reflecting the interest of the
Serbian people but not at the expense of other peoples in Bosnia and Herzegovina.” 51 This
statement explains precisely the aim of the “Varia nts A and B Instructions”. The purpose of those
instructions was the defence of the Serb populatio n, but in full recognition of the rights of other
peoples.
49
ICTY, Prosecutor v. Miroslav Deronjic, case No. IT-02-61-S, Sentencing Ju dgement, Dissenting Opinion of
Judge Schomburg, para. 15.
50
CR 2006/4, p. 17, paras. 28-30.
5ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Transcript, 1February2002, p. 1314-1315 and
Prosecution Exhibit P 17. - 22 -
53. The Variant B instructions, to be applie d in municipalities where the Serbs were in a
minority, recommended the division of such municipalities. That division would have ensured that
the Serb population had its own organizations, but was in no way intended to prevent the other
peoples from possessing their own administrative bodi es. The instructions harboured no threats ⎯
their aim was not to threaten other groups, thei r aim was the defence of the Serb population’s
interests ⎯ but they did not deny the rights of other peoples.
54. Furthermore, no form of co-operation betw een the army and the municipal crisis staffs
established by the Bosnian Serbs can be inferred fr om those instructions. While the instructions
point to such co-operation, they were never addr essed to the army and there is no evidence that
they were ever received by any army units. By contrast, the speech by Ratko Mladic, commander
of the Republika Srpska army, to the 16th Session of the SerBiH Assembly on 12 May 1992 clearly
demonstrated that the army was not following instructions from the SDS and was not about to do
52
so .
55. What the instructions do suggest, however, and what the Applicant preferred not to
notice, is co-operation between the Serbs and th e Muslim SDA and Croat HDZ parties. Both
variants A and B contained instructions for SDS me mbers to appoint a representative to coordinate
relations with the municipal leaders of the SDA and HDZ 53.
56. Finally, in both the A and B variants, the instructions attempted to ensure the rights of
other populations. The A variant included directi ons to those in charge of implementing the
32 instructions to “take care to ensu re that the national and other rights of members of all peoples are
respected” 54.
57. The B variant contained the following instruction: “Within governmental bodies
establish proportional representation of employ ees who are members of other nations and
55
nationalities.”
52
Minutes of the Sixteenth Session of the SerBiH Assembly of 12 May 1992 at Banja Luka, ICTY, Prosecutor v.
Radoslav Brdjanin, case No. IT-99-36-T, Prosecution Exhibit P 50A, pp. 37-50.
53
ICTY, Prosecutor v. Radoslav Brdjanin , case No. IT-99-36-T, “Variant A and B Instructions”,
19 December 1991, Prosecution Exhibit P 35, p. 6.
54
Ibid., p. 5.
5Ibid., p. 6. - 23 -
58. The “Variant A and B Instructions” were written with a view to a possibility, an
eventuality, to be used if necess ary. If they were used, it was certainly not before the spring of
1992. However, in spring 1992, it was clear that Bosnia and Herzegovina was moving towards
war, a war of all sides against each other. These instructions, which inter alia advocated the
protection of other peoples’ rights, cannot, in any respect, be regarded as an expression of
genocidal intent.
59. The “Variant A and B Instructions” were examined by the International Tribunal for the
former Yugoslavia, which found that it could not conclude whether they had been transmitted to
the municipal boards. By consequence, the Tri bunal could not conclude that the events that
56
occurred in municipalities could be tied to the political leadership of Republika Srpska .
60. The “Variant A and B Instructions” constitu ted one of the policy documents of the Serb
party of Bosnia and Herzegovina, the SDS. They were adopted in a specific situation, a few
months before the war broke out. Their aim wa s to find a solution, one which might not have
enabled Bosnia and Herzegovina to become an internationally recognized State, but one which
might have protected the peoples of Bosnia and Herzegovina.
61. Madam President, Members of the Court, we do not deny that very serious crimes were
committed. Nevertheless, those crimes were not the result of a genocidal campaign, as such a
campaign never existed. Those crimes were not committed with genocidal intent, they were not
planned nor were they co-ordinated. They were certainly not perpetrated in application of the
Bosnian Serb’s six strategic goals or the measures set out in the “Variant A and B Instructions”.
33 The six strategic aims and the “Variant A and B Instructions” were no more than the legitimate
political proposals of the Serb population of Bosnia and Herzegovina.
62. Our final round of oral argument has only confirmed what has already been shown: the
crimes were not the consequence of the politi cal programme of the Bosnian Serbs. Our
presentations have also confirmed that there was no genocide in Bosnia and Herzegovina.
Irrespective of the approach adopted ⎯ bottom-up or top-down ⎯ the conclusion will always be
the same: there was no genocide in Bosnia and Herzegovina.
56
ICTY, Prosecutor v. Blagoje Simic, case No. IT-95-09-T, Judgment, 17 October 2003, paras. 382 and 985. - 24 -
63. We have demonstrated that the strate gic goals of the Bosnian Serbs were not, of
themselves, genocidal. We will now demonstrate that their implementation was neither genocidal
or criminal and that the crimes committed cannot be attributed to the legitimate aspiration of the
Bosnian Serbs to have their own territory. Fo r the purposes of our exposé, we will address each
strategic goal one after the other, except for goal number four (the frontiers on the Una and Neretva
rivers) and number six (access to the sea). Goal number four (the frontiers on the Una and Neretva
rivers) is contained within goal number one and principally concerns the Bosanska Krajina region.
It is also partly included in goal number three concerning the Drina river valley, as the Neretva
river is in this region. As for goal number six (access to the sea), it does not appear to warrant our
attention since there was no attempt to achieve it.
Madam President, I do not know whether you would like to call for a break now or if I
should continue and we could adjourn in ten minutes.
The PRESIDENT: Thank you, Maître. Why don’t you continue first a while more and
choose a convenient place?
FMU sVEAU-IVANOVI Ć: Alright. Thank you, Madam President.
II. Realization of the first two strategic goals: the situation in Bosanska Krajina
1. Bosanska Krajina has always been a specific region in Bosnia and Herzegovina. With a
majority Serb population, it has a tragic history, its memory weighed down by the atrocities against
the Serb population during the Second World War. The Trial Chamber of the Tribunal for the
34 former Yugoslavia described the situation in Bosansk a Krajina in this particularly dark period of
Serb history in the judgment delivered in the Brdjanin case:
“Following the occupation of the Kingdom of Yugoslavia in 1941 by the
German Nazi regime, the independent St ate of Croatia, which included BIH, was
established. The State was governed by a group of extreme Croat nationalists, known
as Ustasha. The Ustasha regime was particul arly brutal in the Bosnian Krajina, where
tens of thousands of Serbs, Jews and Roma were systematically killed in
extermination camps because of their religi on and ethnicity. A significant number of
members of the Bosnian Mu57im community collaborated with the Ustasa and the
Germans during the war.”
57
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement of 1 September 2004, para. 53. - 25 -
2. We will not go back over that period, certainly the darkest in its history, but were duty
bound to mention it, providing as it does the best explanation of the conduct of the Serbs in this
region, conduct inspired by a single emotion ⎯ fear.
3. Fear occupies a particular place in the conflict which took place in Bosnia and
Herzegovina, despite the Applicant’s constant denial. The fear explains the conflict, it explains the
situation, it explains the events. We have alread y referred to this fear in our reference to the
document “Instructions, variants A and B”. The d escription of the events which took place in the
past, as presented by the Tribunal in the Brdjanin case, provides a further explanation of this fear.
4. As a large region with a majority Serb population, Bosanska Krajina was the ideal
starting-point for the creation of the Serb State of Bosnia and Herzegovina ⎯ the realization of the
first strategic goal. Situated in western Bosn ia and Herzegovina, comple tely separated from the
other Serb-populated territories and enclosed betw een Croatia and the territories populated by the
Croats and Bosnian Muslims in Bosnia and He rzegovina, Bosanska Krajin a needed the corridor
which would link it with eastern Bosnia in order to survive. Hence, the events at Bosanska Krajina
cannot be separated from the second strategic goal, the corridor between Krajina in western Bosnia
and Semberija in eastern Bosnia.
35 (a) Situation and events in Bosanska Krajina
5. The Applicant refers to the municipality of Sanski Most, one of the few municipalities in
Bosanska Krajina where the Serbs were not in a majority, alleging that the attacks were planned in
advance by the army and the municipal crisis staff 5. We do not dispute that there was fighting at
Sanski Most, as for that matter in most of the municipalities with a mixed population, but we do
strongly contest that the military activities were planned in advance and that the army was involved
in those plans.
6. The Applicant has presented no evidence fo r its allegations and cannot do so, as no such
evidence exists. The fighting at Bosanska Kra jina was not planned in advance, it was the
consequence of the activities of the Green Berets and of the Patriotic League, the two Bosnian
58
CR 2006/5, p. 31, para. 35. - 26 -
Muslim military organizations active in the munici palities of Sanski Most, Prijedor and Kljuc, as
well as in the other municipalities in Bosanska Krajina and Bosnia and Herzegovina.
7. As regards the military activities of the Bo snian Muslims, the Trial Chamber found in the
Brdjanin case that: “Muslims were also preparing for a war and correspondingly arming
themselves. In June 1991, SDA leaders formed the ‘Council for National Defence of the Muslim
59
Nation’ with the Patriotic Lea gue as its paramilitary arm.” It is thus incorrect to speak of Serb
attacks, and more appropriate to speak of armed combat between the Serbs and the Bosnian
Muslims.
8. We do not dispute that, both during and af ter the fighting, crimes took place, but these
crimes did not form part of a plan or programme; they were, alas, a consequence of the civil war,
were indeed part of the civil war, the civil wa r which the Applicant has at last recognized, albeit
only partially. It is common knowledge that the war context particularly favours crimes. No one
wishes to excuse or justify crimes committed in wa r, but the overall situation must be carefully
analysed. This analysis is even more necessary when the direct evidence of criminal intent does
36 not exist and when that intent has to be dedu ced from the context in which the crimes were
committed.
9. The Applicant refers to the killings in th e region of Bosanska Krajina and particularly at
Sanski Most 60. The Tribunal for the former Yugosla via considered these events in the Brdjanin
case. Inter alia , the Trial Chamber concluded, with respect to the villages of Hrustovo and
Vrhpolje situated in the municipality of Sanski Most and cited by the Applicant, that “armed
61
Bosnian Muslim forces, as well as the Patriotic League, were present” .
10. The existence of armed Muslim formations has not been verified in the SanskiMost
municipality alone. It has been verified in all the municipalities in which the crimes took place.
Hence, there was armed conflict in Kljuc muni cipality. The Trial Chamber ruled, in the Brdjanin
case, with respect to the village of Pudin Han situated in Kljuc municipality, that: “On
27May1992, the resistance fighters attacked a Bosnian Serb military column in the area of
5ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement of 1 September 2004, para. 89.
60
CR 2006/5, pp. 31 and 32.
6ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 102. - 27 -
62
Pudin Han.” The Trial Chamber also conclude d that, the same day, 27 May 1992,
DusanStojakovic, a Bosnian Serb, deputy commander of the Kljuc police station, was killed by
63
Muslim soldiers.
11. It has also been established that there was armed combat in the village of Vecici, situated
in Kotor Varos municipality where the population was mixed. Also in the Brdjanin case, the Trial
Chamber found that: “In the village of Vecici, the Bosnian Serb forces faced considerable Bosnian
64
Muslim armed resistance and fighting continued for months.”
12. The Prosecutor’s military analyst in the Brdjanin case, Mr. Ewan Brown, also confirmed
the existence of Bosnian Muslim military organizat ion in the Muslim villages in the territory of
Bosanska Krajina. In his report, he stated:
“In a number of Bosanska Krajina m unicipalities it was also evident that
inhabitants of the non-Serb villages had attempted to organise themselves and had
established some form of local crisis staff of territorial/local defence. Some of this
37 activity may well have been in direct res ponse to the mobilization of the Bosnian and
65
Herzegovina territorial defence, announced earlier in May by Alija Izetbegovic.”
13. The conclusions of the Tribunal for the fo rmer Yugoslavia confirm that there was indeed
armed combat in these villages. Although this fact does not excuse or justify the crimes
committed, it situates them in their true contex t. All these crimes may be characterized as war
crimes, as violations of the laws and customs of war, and some crimes may be characterized as
crimes against humanity, but none of these crimes, i ndividually or taken together with others, can
be characterized as genocide.
14. All the crimes to which the Applicant refe rs were connected with the armed conflict and
their purpose was the destruction of the enemy’s armed forces. Unfortunately, it was not always
possible to maintain control and civilians we re killed. War creates disorder, and crimes ⎯ very
serious crimes ⎯ were committed on the fringes of the ar med conflict by persons who could be
characterized as criminals, seeing in the general disorder an opportunity to satisfy their basest
impulses. Nothing can excuse these crimes, but they do not constitu te genocide. They were not
6Ibid., para. 108.
63
Ibid.
6ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 111.
6Ibid., Military Developments in the Bosanska Krajina 1992, Ewan Brown, Military Analyst,
27 November 2002, p. 133. - 28 -
committed with the intention of destroying in whole or in part a national, ethnic, racial or religious
group as such. Even if they are evaluated in their totality, all of them together, these crimes do not
constitute genocide, as each of them was committed in a particular situation, without any plan, any
design and, most importantly, without any genocidal intent.
Would now be a good time? Thank you.
Le PRESIDENT : Oui, certainement. L’audience est levée.
L’audience est suspendue de 11 h 25 à 11 h 40.
Le PRESIDENT : Veuillez vous asseoir. Maître Fauveau-Ivanović, vous avez la parole.
FAMUsVEAU-IVANOVI Ć: Thank you, Madam President.
15. Most of the crimes alleged by the Applicant to have been committed at Bosanska Krajina
66
38 were addressed in the Brdjanin case before the Tribunal for the former Yugoslavia. Of course,
this esteemed Court is not bound by the findings of the Tribunal for the former Yugoslavia.
However, it may be noted that the Trial Chamber concluded the Brdjanin case, after three years of
proceedings, with an acquittal on genocide.
16. The facts presented by the Applicant which allegedly took place at Bosanska Krajina
were investigated by the Tribunal for the former Yugoslavia. However, either the Tribunal was not
able to verify these facts, or they were presented differently during the Brdjanin proceedings, but
the Tribunal’s conclusions differ appreciably from the Applicant’s presentation.
17. Hence, according to the expert called by the Applicant, Mr.AndrásRiedlmayer,
30 members of the Muslim community were burned in August 1992 in the mosque in the village of
67
Hanifici, in Kotor Varos municipality . First, such a statement lay completely outside the
expertise for which Mr. Riedlmayer was called and for which he is qualified. Secondly, according
68
to Mr. Riedlmayer’s statement , his knowledge of these events cannot be described as other than
hearsay. Mr. Riedlmayer has no direct knowledge of this event. Lastly, that statement differs
66ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, paras. 416-422.
67
CR 2006/22, p. 28, para. 49.
68Ibid., p. 41. - 29 -
significantly from the finding of the Trial Chamber in the Brdjanin case, which assessed the events
in the village of Hanifici and conc luded that eight persons were killed 69, and that these persons
were neither killed nor burned in the mosque. A crime was patently committed, but the nature and
scale of the crime are not as presented by Mr. Riedlmayer in these proceedings.
18. During its oral pleadings of 1 March 20 06, the Applicant referred to Mr. Riedlmayer’s
report to the Tribunal for the former Yugoslavia. In that report, Mr.Riedlmayer described the
murders in the village of Carakovo, in Prijedor m unicipality, which were said to have taken place
in front of the mosque and included the horrific murder of the local imam 7. The value of this
report as evidence is more than merely limited, since the event described lay completely outside the
scope of the expert opinion Mr.Riedlmayer was as ked to give and for which he is qualified.
39 Furthermore, it never proved possible to establish th e reality of this event before the Tribunal for
the former Yugoslavia, which investigated the events at Carakovo in two cases, the Brdjanin case 71
72
and the Stakic case . In neither case did the Tribunal fi nd evidence pointing to the murders in
front of the mosque or the murder of the local imam in the village of Carakovo. If these events had
occurred, the Tribunal would certainly have confirme d them. The simple fact is that the Tribunal
was unable to do so because they never happened.
19. The situation at Prijedor was similar to the situation at Sanski Most, Kljuc and
KotorVaros. The Tribunal for the former Yugos lavia considered the events at Prijedor in a
number of cases. However, the Applicant prefers to refer to different reports prepared by different
commissions rather than to the Tribunal’s c onclusions. And the Applicant’s approach is
understandable, since the facts ascertained by the Tribunal do not bear out the facts alleged by the
Applicant.
20. In the first round of our oral pleadings, we showed that the number of persons killed had
been exaggerated, the exaggerations being princi pally based on the different reports. We are not
going to go over them again, yet must mention some of the most telling examples. Hence, in its
69ICTY, Prosecutor v. Radoslav Brdjanin , case No. IT-99-36-T, Judgement , 1 September 2004, para.430,
footnotes 1104 and 1105.
70
CR 2006/5, p. 52, para. 22.
71
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 410.
72ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, paras. 266-268. - 30 -
73
Reply (Chap.2, para.22), the Applicant cited the report by Tadeusz Mazovietcki , according to
which a thousand people were killed in the village of Hambarine. In the Brdjanin case, the Trial
Chamber established, on the basis of the testimonies and forensic expertise, that three persons were
74
killed in the village of Hambarine .
21. Concerning this event, we should add that the fighting at Hambarine was started by the
Bosnian Muslims, who opened fire on the Serbs. A witness in the Stakic case described this
40 incident. He stated that well-armed Bosnian Mu slims, at their checkpoint, had called on the Serbs
to give up their weapons and opened fire with a machine gun when the Serbs refused to do so 75.
22. Trial Chamber II in the Stakic case accepted the testimony of this witness and found that:
“Based on this evidence, the Tria l Chamber concludes in favour of the Accused and finds that the
Muslim personnel at the checkpoint was the firs t to open fire on this manifestation of the
76
conflict.”
23. The same assessment can be made of the events at Kozarac. The Applicant, without
mentioning the existence of the armed conflict, re ported an exaggerated number of killings in its
Memorial (para.2.2.2.11). In support of its clai ms, the Applicant cited the United Nations report
which did, in fact, allege that 5,000 persons were killed at Kozarac 77. The events at Kozarac were
examined in several cases before the Tribunal for the former Yugosla via, and as the investigations
progressed, the number of persons killed grew smalle r. The judgment rendered in the most recent
case in which these events were investigated, which is the Brdjanin case, refers to 80Muslim
78
victims at Kozarac . The total number of victims at Kozarac, including Croats and Bosnian
Muslims, did not exceed 140, according to the Tribunal’s findings 79.
73
Sixth report submitted by Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights,
United Nations, doc. A/47/6661, doc. S/24809, 17 November 1992, p. 8, para. 17 (c).
74
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 401.
75
ICTY, Prosecutor v. Milomir Stakic , case No.IT-97-24-T, Testimon y of witness DH, Transcript,
pp. 13504-13507.
76
ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 130.
77Report of the Special Rapporteur: Situation of Human Rights in the Territory of the former Yugoslavia,
United Nations doc. A/47/666, S/24809, 17 November 1992.
78ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 403.
79Ibid., para. 476. - 31 -
24. In the Stakic case, the Tribunal for the former Yugoslavia held that the population of
Kozarac attempted to establish control in the town and that, with the aid of Sead Cirkin, a former
officer in the Yugoslav National Army, it organized armed patrols 80. The Trial Chamber also
81
found that Muslim paramilitary units had been active in the Kozarac area .
25. In the Brdjanin case, Trial Chamber I found that a to tal of 1,669 people were killed in
82
Bosanska Krajina in 1992, the year when the worst crimes were committed . In the same case, the
Tribunal also found that, prior to the war, 233,128 Bosnian Muslims and 103,314 Croats lived in
41 the relevant municipalities 83. Thus, out of the total Muslim and Croat population of
BosanskaKrajina, which amounted to 296,482 pe rsons, 1,669 were killed and it has not been
established that all the victims were Croats and Bo snian Muslims. It might be cruel to count the
victims, since every victim is a victim too many , and all these people should not have been killed,
but the facts established do not show genocidal intent, which in any event never existed.
26. The Applicant criticized our references to the judgements of the Tribunal for the former
84
Yugoslavia with regard to the number of killings . This is a strange argument, to say the least,
since the Respondent itself refers to the indictment s by the Tribunal’s Prosecutor, and to various
decisions, whose probative value is certainly not as great as that of the judgments. Moreover, the
Applicant’s contention that killings which were not confirmed in the judgments could nevertheless
have been committed is not entirely accurate. Thus, the Tribunal rarely tries the direct perpetrators
of the crimes committed, but more usually tries the political leaders or military commanders
responsible for the totality of the crimes committed in the region under their responsibility, who are
consequently charged with crimes also committed by third parties. This is particularly true in the
Brdjanin case. Radoslav Brdjanin was the political l eader of Bosanska Krajina, who occupied a
85
key position throughout the war, both at regional level and in Republika Srpska . Radoslav
Brdjanin was charged with all the crimes committed in 1992 in the region of Bosanska Krajina, one
8ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 140.
81
Ibid., para. 142.
82
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 465.
8Ibid., para. 967.
8CR 2006/30, pp. 26-27.
8ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 286. - 32 -
of the most important regions under Bosnian Serb control. In addition and in conclusion, the
Applicant has not presented credible evidence to show that crimes were committed other than those
found to have been committed by the Tribunal. An d irrespective of the nature of the proceedings,
42
the burden of proof still rests on the Applicant.
27. The best known camps in Republika Srpska were established by the Bosnian Serbs in the
region of Bosanska Krajina, and more particularly in the municipality of Prijedor. Conditions in
those camps were bad, but all of them were investigated in several cases before the Tribunal for the
former Yugoslavia, which never found that genocide had been committed.
28. Although the Applicant has acknowledged at these hearings that the Tribunal’s
Prosecutor investigated the camps, it prefers on ce again to base its allegations on the various
reports, all of which were considered by the Tribunal for the former Yugoslavia. However, in none
of the cases relating to the camps did the Tri bunal find that genocide had taken place. The
Applicant attempts to circumvent this fact by a lleging that those cases were limited in scope, both
territorially and temporally 86. As far as the camps in Bosansk a Krajina are concerned, the cases
tried by the Tribunal were certainly limited in time, since most of the camps were closed at the end
of the summer of 1992. As regards limitation to a geographical region, this is only partially true,
since the Brdjanin case, though not concerned with all of Bosnia and Herzegovina, nevertheless
encompassed 16municipalities within its scope. However, genocide was not found to have been
committed.
29. Finally, when the Applicant refers to the fi ndings of the Tribunal in regard to the camps,
87
it prefers to cite the decision on judici al notice of adjudicated facts in the Krajisnik case . Before
entering into an analysis of that decision, it s hould be noted that it relates to facts previously
88
established in other cases tried before the Tr ibunal, where no proof of genocide was found . We
would add that the camps to which the Applicant re fers had also been investigated in certain cases
86
CR 2006/5, p. 22, para. 3.
87
Ibid., p. 33, para. 41.
8ICTY, Prosecutor v. Dusko Tadic , case No.IT-94-1; Prosecutor v. Miroslav Kvocka et al. , case
No. IT-98-30/1. - 33 -
which were not cited in the decision rendered in the Krajisnik case. Even so, once again, genocide
was not shown to have occurred . 89
43 30. According to the decision in the Krajisnik case to which the Applicant refers: “the
Prijedor Chief of Police Simo Drljaca issued the official order to establish the camps. Simo Drljaca
was a chief of the Prijedor municipality Public Security Station and a member of the Prijedor Crisis
90
Staff.”
31. Simo Drljaca was the Chief of Police in Prijedor and bore much of the responsibility for
establishing the camps as well as ⎯ probably ⎯ running them. His role was evaluated in the
Stakic case, where the Trial Chamber found that:
“Simo Drljaca, head of the Prijedor SJB, clearly played an important role in
establishing and running the camps, and was portrayed by the evidence as being a
difficult or even brutal person, but the Trial Chamber is not satisfied that Drljaca
91
pulled the Crisis Staff into a genocidal campaign.”
32. In the Stakic case, Trial Chamber II assessed the evid ence relating to the intent of the
accused, Milomir Stakic, as well as evidence relating to the possible intent of other municipal
officials in Prijedor, and came to the following conclusion:
“The Trial Chamber has considered whether anyone else on a horizontal level in
the Municipality of Prijedor had the dolus specialis for genocide by killing members
of the Muslim group but concludes that there is no compelling evidence to this
effect.”92
33. The Trial Chamber also found that the persons higher up in the hierarchy of the
93
Serb SDS party, which was in power in Republika Srpska, had no genocidal intent . Admittedly,
this finding was based on evidence presented in the Stakic case, but Milomir Stakic had been the
Mayor of Prijedor and had contacts with Radosla v Brdjanin, President of the Bosanska Krajina
Crisis Staff, as well as with Radova n Karadzic, President of Repub lika Srpska. There can be no
doubt that the Prosecutor of the Tribunal presented all the evidence at his disposal in order to
89
ICTY, Prosecutor v. Sikirica, case No.IT-95-8; Prosecutor v. Milomir Stakic , case No.IT-97-24;
Prosecutor v. Radoslav Brdjanin, case No. IT-99-36.
90
ICTY, Prosecutor v. Momcilo Krajisnik , case No.IT-00-39 and 40-PT, Decision on Third and Fourth
Prosecution Motion for Judicial Notice of Adjudicated Fact s, rendered by Trial Chamber I on 24March2005; Ann.,
paras. 211-212.
91
ICTY, Prosecutor v Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 555.
9Ibid.
9ICTY, Prosecutor v Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 551. - 34 -
establish the genocidal intent of these persons. However, the Trial Chamber was unable to
establish that the persons concerned were motivated by the specific intent necessary for the crime
44 of genocide. The judgment of Trial Chamber II in the Stakic case was upheld by the Appeals
Chamber. The Tribunal’s final judgment clearly establishes that genocide was not committed in
the municipality of Prijedor. The Tribunal could not have found otherwise, as there was no
genocidal intent and genocide was not committed.
34. The camps to which the Applicant refe rs were initially set up as holding centres for
persons captured in combat or detained in police operations 94. However, the original intention of
the persons who established those camps is of little relevance, and we have no intention of denying
that the conditions in the camps were bad. We do not deny that crimes were committed in those
camps. But neither the poor conditions nor the cr imes committed in the camps constitute genocide
in the absence of genocidal intent. And such intent never existed.
35. The Applicant seeks to establish the existe nce of genocidal intent in those camps by
citing the facts on which Biljana Plavsic and the Tribunal Prosecutor reached agreement 95. First of
all, these facts cannot be considered to have been co nfirmed by Biljana Plavsic. It is true that she
reached agreement with the Prosecu tor on those facts, but she did not confirm them and they are
not to be found in any statement by Biljana Pl avsic. This was an agreement between the two
parties in a specific case, a case in which both pa rties had their own interests and those interests
made it necessary for them to accept these facts. Secondly, Biljana Plavsic admitted that unlawful
detention had taken place and that the crime of persecution, a crime against humanity, had been
committed. She never agreed, much less confirmed, that genocide had been committed. She never
expressed any thought or idea from which genocidal intent could be inferred. Regarding her
position in the presidency of Republika Srpska, Bilja na Plavsic was certainly in a position to know
whether genocidal intent existed, and to confirm such intent if it had existed. She did not do so.
Therefore, no conclusion regarding any genocidal intent can be drawn from the Biljana Plavsic
case.
94
ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 159.
95
CR 2006/5, p. 24, para. 12. - 35 -
36. The same assessment may be made of the decision rendered in the Krajisnik case,
pursuant to Article98 bis of the Tribunal’s Rules of Procedure and Evidence 96. The Applicant
45 seeks to establish certain facts on the basis of the findings reached by the Trial Chamber in that
decision. As we have already said, th e decisions rendered pursuant to Article98 bis of the
Tribunal’s Rules of Procedure and Evidence do not establish facts beyond all reasonable doubt.
Those decisions only establish the likelihood that the facts occurred, a likelihood which may prove
to be incorrect.
37. The Applicant acknowledges that the findings of the Tribunal in Decisions Pursuant to
Rule 98bis do not form part of final Judgements— although it attempted, nonetheless, to show
their veracity— as they have already been cha llenged by the Defence and re-examined by the
judges 9. We have already indicated that those Decisions are pronounced at the end of the
presentation of evidence by the Prosecutor. They are issued before the Defence has submitted its
evidence and cannot be regarded as reliable findi ngs by the judges. Such a conclusion is,
moreover, supported by the fact that in certain cases, having found that genocide had taken place in
the Decision Pursuant to Rule 98 bis, the Tribunal has subsequently ruled at the conclusion of the
case, following the presentation of evidence by the Defence, that genocide had not been committed.
Trial Chamber I, for example, did not exclude genocide from its Decision Pursuant to Rule 98bis in
the Brdjanin case 98. That conclusion was even upheld by the Appeals Chamber 99. However, in its
final Judgement at the end of the case, Trial Chamber 1 found that genocide had not been
100
committed in Bosanska Krajina . The same thing happened in the Stakic case. Trial Chamber II
did not exclude genocide from its Decision Pursuant to Rule 98 bis10. However, in the final
102
Judgement, the Tribunal found that genocide had not been committed . The Appeals Chamber
96
ICTY, Prosecutor v. Momćilo Krajisnik, Decision on the Defence Motion for Acquittal under Rule 98 bis, case
No. IT-00-39-T, Transcript, 19 August 2005, pp. 17128-17130.
97
CR 2006/5, p. 25, para. 14.
98ICTY, Prosecutor v. Radoslav Brdjanin, case No.IT-99-36-T, Decision on Motion for Acquittal Pursuant to
Rule 98bis, Trial Chamber I, 28 November 2003.
99ICTY, Prosecutor v. Radoslav Brdjanin , case No.IT-99-36-T, Decision on Interlocutory Appeal, Appeals
Chamber, 19 March 2004.
100ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004.
101ICTY, Prosecutor v. Milomir Stakic , case No.IT-97-24-T, Decision on Motion for Acquittal Pursuant to
Rule 98bis, Trial Chamber II, 31 October 2002.
102ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003. - 36 -
46 upheld the Judgement in the Stakic case and found in its final Judgement that genocide did not take
103
place in Prijedor . Consequently, the findings of the Tribunal in Decisions Pursuant to Rule 98bis
can only be viewed as intermediate conclusions made exclusively on the basis of the evidence
submitted by the Prosecutor. They do not contain fi ndings of fact or of law which can be regarded
as definitive.
38. It should also be noted that the Appli cant makes no distinction between the camps that
existed in Republika Srpska. There were differe nces, however. Conditions were certainly not
good in any of those camps, but in certain camp s they were not such as to amount to causing
serious bodily or mental harm a nd could not be regarded as calculated to bring about the physical
destruction of the group.
39. In the Brdjanin case, Trial Chamber II of the Tribunal for the former Yugoslavia held
that the evidence submitted was in certain cases insufficient for it to find that the physical or mental
harm caused was sufficiently severe to be charact erized as serious. The Tribunal came to that
conclusion as concerns the Bosanska Krajina re gion with respect to the following camps:
Bosanska Kostajnica police station, Bosanski Novi municipality, Kotor Varoš elementary school,
Ribnjak camp and Vijaka Mill in Prnjavor municipality, Sipovo SUP building, Sipovo
municipality, Bosanski Petrovac police station in Bosanski Petrovac municipality and Krings
factory, sports hall and Lusci Palanka police station in Sanski Most municipality 104.
40. The same analysis can be applied to the issue of whether conditions in the camps were
calculated to bring about the physical destruction of the group. In the Brdjanin case, Trial
ChamberII held that the evidence submitted was in sufficient to show that conditions in certain
camps could be construed as having been calculated to bring about the physical destruction of the
47 group. The Tribunal’s finding concerned the following camps: Ribnjak camp in Prnjavor
municipality, Bosanska Kostajnica police station, Bosanski Novi municipality, CSB building,
MaliLogor and Vis Tujnice penitentiary, Banja Luka municipality, Grabovica elementary school
and Sawmill camp, Kotor Varoš municipality, Ko zila camp, Bosanska Petrovac municipality,
Jasenica and Petar Kocic elementary schools, Bosanska Krupa municipality, SUP building and
10ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-A, Judgement, 22 March 2006.
104
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, paras. 742-743. - 37 -
Nikola Mackic school, Kljuc municipality, Prijedor barracks, SUP building and Miska Glava camp,
Prijedor municipality, Hasan Kikic gymnasium and Krings factory, Sanski Most municipality, and
SUB building, Teslic municipality. 105
41. Moreover, certain events referred to by the Applicant with respect to the Manjaca
military camp were disproven in trials by the Tribun al for the former Yugoslavia. For example, in
its Reply (Chap. 5, para. 382), the Applicant alleged that:
“The camp held a limited number of women. During their stay in Manjaca they
were raped repeatedly. One young girl was raped in front of her mother and died soon
afterwards. Muslim inmates were also coerced to rape female prisoners. A 14-year
old boy was, for example, forced to have sex with a 60 year-old woman.”
That allegation, taken from the UN Commission of Experts’ report, was dismissed by Trial
ChamberII in the Brdjanin case, which found that “No evidence has been presented before the
Trial Chamber that, as alleged in the Indictment, in Manjaca, detainees were subjected to acts of
sexual degradation”, prompting it to the followi ng conclusion: “The Trial Chamber has been
unable to find any indication of these events in the evidence.” 106
42. With regard to the Manjaca camp, evidence to the contrary was submitted to the Tribunal
in the only case in which ev ents in the camp have ever been tried. In the Brdjanin case, it
transpired that Lord Paddy Ashdown, until r ecently the International Community’s High
Representative in Bosnia and Herzegovina, visite d the Manjaca camp in 1992 as an envoy of the
United Nations Secretary-General. On leaving the camp, Lord Ashdown described it as correctly
run 10.
48 43. True, the camps mentioned are not all of those which existed in Bosnia and Herzegovina,
but even if the conditions were so bad that they could cause serious bodily or mental harm to
members of the group or correspond to conditions of life which could bring about the group’s
physical destruction in whole or in part, that does not automatically mean that genocide was
committed. Genocidal intent must still be shown in order for those acts to constitute genocide. As
the Tribunal for Rwanda correctly found on the basis of the travaux préparatoires for the Genocide
105
Ibid., paras. 907-908.
106
Ibid., para. 755 and footnote No. 1837.
10ICTY, Prosecutor v. Radoslav Brdjanin and Momir Talic , case NoI.T-99-36-T, Transcripts,
26 February 2002, pp. 2270-2271. - 38 -
Convention: “absent intent to destroy a protected group, no act can amount to genocide, no matter
how atrocious that act is” 108. Genocidal intent has not been shown in any of the cases tried before
the Tribunal concerning the events in Bosanska Krajina and it could not be, since it never existed.
44. Certainly, conditions in the camps, both in Prijedor and in the others in Bosanska
Krajina, were extremely bad, but, without geno cidal intent, such conditions can still not be
regarded as acts amounting to deliberately inflic ting on the group conditions of life calculated to
bring about its physical destruction in whole or in part, which would have constituted genocide.
45. The words “deliberately inflicting on the group conditions of life calculated to bring
109
about its physical destruction in whole or in part” were proposed by the Belgian representative to
the Sixth Committee of the United Nations General A ssembly. In order to constitute genocide, the
conditions must be calculated to bring about phys ical destruction, or in other words death.
Although they do not consist of killings alone, they must bring about death.
46. The expression “deliberately inflicting on th e group conditions of life calculated to bring
about its physical destruction in whole or in pa rt” was defined by the Rwanda Tribunal in the
Akayesu case, in which it held that that expres sion “should be construed as the methods of
destruction by which the perpetrator does not i mmediately kill the members of the group, but
49 which, ultimately, seek their physical destruction” 110. And, in the Stakic case, the Tribunal for the
former Yugoslavia defined physical destruction: “T he element of physical destruction is inherent
in the word genocide itself, which is derived from the Greek genos meaning race or tribe and the
111
Latin caedere meaning to kill.”
47. Moreover, basing itself upon the travaux préparatoires , the International Law
Commission concluded:
“As clearly shown by the preparatory wo rk for the Convention, the destruction
in question is the material destruction of a group either by physical or by biological
means, not the destruction of the nationa l, linguistic, religious, cultural or other
identity of a particular group. The nationa l or religious element and the racial or
ethnic element are not taken into consideration in the definition of the word
10ICTR, Prosecutor v. Jean-Paul Akayesu, case No. ICTR-96-4-T, Judgement, 2 September 1998, para. 519.
109
United Nations, doc. A/C.6/217 (Belgian proposal); doc. A/C.6/SR.82 (Soviet amendment).
110
ICTR, Prosecutor v. Jean-Paul Akayesu, case No. ICTR-96-4-T, Judgement, 2 September 1998, para. 505.
11ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 518. - 39 -
‘destruction’, which must be taken only in its material sense, its physical or biological
112
sense.”
48. With respect to the camps in Bosanska Krajina, they were not established to cause
physical destruction. Most of those camps existed for only a matter of months and were shut down
at the end of the summer of 1992. While we do not deny either the bad conditions in those camps
or the crimes that were committed in them, we mu st note that, if they intended to destroy the
Bosnian Muslims or a part of that population— those living in Bosanska Krajina— the Bosnian
Serbs could have run the camps differently. Th e argument is extremely callous and not easy to
express, but it is unfortunately highly realistic. It was used by Trial Chamber II of the Tribunal for
the former Yugoslavia in the Stakic case, when it held that “[h]ad the aim been to kill all Muslims,
113
the structures were in place for this to be accomplished” . The Appeals Chamber found that the
Trial Chamber had used that argument correctly in its assessment of the evidence. In the words of
the Appeals Chamber’s Judgement “the Trial Ch amber cited this fact because it constitutes
evidence that the Appellant did not seek to destroy the Bosnian Muslim group in whole or in
part ⎯ the fact that more Bosnian Muslims could have been killed, but were not, indicates that the
Appellant lacked dolus specialis” 114.
50 49. Although the above-mentioned trial judgment and the appeal judgment upholding it
concern the intent of MilomirStakic, the mayor of Prijedor, it should be noted that they are
applicable to all the political and military leaders of the Bosnian Serbs, since all of them, in the
territories under their control, had the possibilit y to destroy the peoples that the Applicant
characterizes as non-Serbs. They did not do so, they never had the intention to do so. Their
objective was to create a State in which the Serbian people would live in safety.
50. The Trial Chamber in the Brdjanin case used a similar argument. It looked at the number
of Bosnian Muslims and Croats who had actually suffered serious bodily or mental harm caused to
members of the group, and conditions of life calculated to bring about its physical destruction in
whole or in part, acts which would constitute genoc ide if committed with genocidal intent. Trial
Chamber I concluded:
11Report of the International Law Commission on the Wo rk of its Forty-eighth Session, 6 May-26 July 1996,
United Nations, doc. A/51/10, pp. 90-91.
113
ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 553.
11ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-A, Judgement, 22 March 2006, para. 42. - 40 -
“The number of Bosnian Muslims and Bo snian Croats who were victims within
the terms of Article 4(2) (a), (b) or (c) as such and of itself does not allow the Trial
Chamber to legitimately draw the inference that the underlying acts were motivated by
115
genocidal intent.”
Article 4 of the Tribunal’s Statute is identical to Article 2 of the Genocide Convention.
51. The Trial Chamber also held in the Brdjanin case that not all the detainees in the camps
were mistreated, and it concluded that:
“although the evidence demonstrates that the b eatings were widespread, they were not
administered on all detainees, particularly when these were women and children.
Nevertheless, of those detention facilities fo r which there is an estimated number of
detainees, around 15,623 Bosnian Muslims and Bosnian Croats were detained in those
camps and detention facilities where serious bodily and/or mental harm was inflicted
116
on some of them.”
52. The Trial Chamber also held that the num ber of detainees could not be established with
117
any certainty, since detainees were transferred between the different camps.
53. Finally, the Trial Chamber concluded that the:
“extremely high number of Bosnian Muslim and Bosnian Croat men, women and
children forcibly displaced from the ARK in this case, particularly when compared to
51 the number of Bosnian Muslims and Bosnian Croats subjected to the acts enumerated
in Article 4(2) (a), (b) and (c), does not support the conclusion that the intent to
destroy the groups in part, as opposed to the intent to forcibly d118lace them, is the
only reasonable inference that may be drawn from the evidence”.
54. The great majority of detainees were able to leave the camps, the great majority of
Bosnian Muslims were authorized by the Bosnian Serb s to leave the camps. It is true that they
suffered during their detention in the camps and that most of them were unable to return to their
homes. However, as Trial Chamber II correctly held in the Stakic case:
“It does not suffice to deport a group or a part of a group. A clear distinction
must be drawn between physical destruction and mere dissolution of a group . . . This
is because the dissolution of the group is not to be equated with physical
119
destruction.”
55. Moreover, Trial Chamber I in the Brdjanin case also made the same finding.
11ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 974.
11Ibid., footnote 2448.
117
Ibid.
11ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 976.
11ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 519. - 41 -
56. Lastly, having considered all the evidence presented in the Brdjanin case, the case which
concerned the entire region of Bosanska Krajina comprising 16 municipalities and covering a large
part of the territory of Republika Srpska, the Trial Chamber held that:
“the scale of the acts enumerated in Article 4(2) (a) to (c) does not allow the Trial
Chamber to legitimately come to the conclusion in favour of the existence of
genocidal intent, particularly when viewed in light of the number of Bosnian Muslims
and Bosnian Croats forcibly displaced from the ARK. The difference between the two
is too pronounced, particularly in light of the fact that during much of the period
relevant to the Indictment, and certain ly as from summer 1992, the Bosnian Serb
forces controlled the territory of the ARK, as shown by the fact that they were capable
of mustering the logistical resources to forc ibly displace tens of thousands of Bosnian
Muslims and Bosnian Croats, resources which, had such been the intent, could have
been employed in the destruction of all Bo snian Muslims and Bosnian Croats of the
ARK.” 120
57. Contrary to the Applicant’s claim that th e Tribunal for the former Yugoslavia looked at
the evidence in relation to one accused and one ev ent, it emerges clearly from the text of the
judgment rendered in the Brdjanin case that the Tribunal evaluated the evidence in its totality.
52 Once again we would emphasize that this particular case, the Brdjanin case, concerned the entire
region of Bosanska Krajina. However, the Tria l Chamber was unable to conclude that genocide
was committed, quite simply because genocide was not committed. Consequently, the Trial
Chamber found that:
“Although the factors raised by the Prosecution have been examined on an
individual basis, the Trial Chamber finds that, even if they were taken together, they
do not allow the Trial Chamber to legitimatel y draw the inference that the underlying
offences were committed with the specific inte nt required for the crime of genocide.
On the basis of the evidence presented in this case, the Trial Chamber has not found
beyond reasonable121ubt that genocide was committed in the relevant ARK
municipalities.”
58. Even considering the type of conduct to constitute a pattern, the Trial Chamber was
unable to draw an inference of genocidal intent. On the other hand, it found that:
“The Trial Chamber has already provided an overview of the crimes that were
committed in execution of the Strategic Plan in the ARK during the period relevant to
the Indictment, and found a pattern of c onduct of the Bosnian Serb forces throughout
the ARK municipalities, the final objective of which was the permanent removal of
122
most of the non-Serb population.”
12ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 978.
121
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 989.
12Ibid., para. 983. - 42 -
Moreover, at the conclusion of the trial, the Tria l Chamber characterized the crimes committed in
the region of Bosanska Krajina as crimes against humanity ⎯ crimes of persecution, and held that:
“While the general and widespread nature of the atrocities committed is
evidence of a campaign of persecutions, the Trial Chamber holds that, in the
circumstances of this case, it is not possible to co123ude from it that the specific intent
required for the crime of genocide is satisfied.”
59. It is true that this Court is not bound by findings of the Tribunal for the former
Yugoslavia, but certain inferences may be drawn from the judgments of that Tribunal.
60. Another Trial Chamber reached the same conclusion in the case concerning the events at
Prijedor. The events at Prijedor are undoubtedly centra l to the events in Bosanska Krajina, but the
Trial Chamber held that it could not establish the sp ecific intent required for genocide in relation to
124
53 either the accused or his subordinates . Thus, the Trial Chamber held that: “the Trial Chamber
has not found beyond a reasonable doubt that genocide was committed in Prijedor in 1992” 125.
61. Admittedly, the Trial Chamber evaluate d only the evidence relating to 1992, since
MilomirStakic was charged only for the events that took place in 1992. However, when the
Prosecutor indicted Milomir Stakic, he indicted hi m for that year only, since he was unable to find
sufficient grounds to indict him for later years. The Tribunal for the former Yugoslavia tried
several persons for events in the Prijedor region, and none of those persons was indicted for events
that took place after 1992. This is eminently reasona ble, since most of the camps in that region
were closed at the end of 1992.
62. The year 1992 was certainly the worst year in Bosanska Krajina. The Applicant even
acknowledged in its oral argument that 1992 was the worst year throughout Bosnia and
126
Herzegovina . However, the Tribunal never found that genocide was committed in the region of
Bosanska Krajina. The Tribunal looked at the inte ntion of the accused and of the persons linked to
the accused in the political and military hierarchy of the Bosnian Serbs, but once again, it was
unable to establish that genocide had been committed.
theIn63. Stakic case, Trial Chamber II held that:
12Ibid., para. 984.
124
ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 559.
125
Ibid., para. 561.
12CR 2006/2, p. 44, para. 56. - 43 -
“the common goal of the members of the SDS in the Municipality of Prijedor,
including Dr. Stakic as President of the Municipal Assembly, was to establish a
Serbian municipality, there is insufficient evidence of an intention to do so by
destroying in part the Muslim group. The Trial Chamber believes that the goal was
rather to eliminate any perceived threat, especially by Muslims, to the overall plan and
to force non-Serbs to leave the Municipality of Prijedor. Security for the Serbs and
protection of their rights seems to have been the paramount interest.” 127
64. In fact, the Bosnian Serbs were afraid th at men of military age would join the army of
Bosnia and Herzegovina. As the Bosnian Serbs wa nted to prevent Muslims from joining the army
of Bosnia and Herzegovina, most of the crimes we re committed against men of military age. The
54 fact that the war in Bosnia and Herzegovina was a civil war and that all the men in the former
Yugoslavia received military training in the context of the territorial defence programme made it
extremely difficult to distinguish between military personnel and civilians. In this connection, we
wish to emphasize that we entirely agree with the Applicant’s statement, in its pleadings on
2March2006, that one of the elements necessar y for a finding of genocide is the commission of
crimes against the civilian population identified as a separate group 128.
65. The Bosnian Serbs never harboured the inte ntion to destroy the Bosnian Muslims, their
intention was to protect themselves. The testimony heard by the Tribunal for the former
Yugoslavia confirms that fear and protection of the Serbian population were the reasons for the
detention of Muslim men of military age. We may cite the testimony of a Bosnian Muslim from
Banja Luka, in the Brdjanin case, who stated that: “in Banja Luka, very few men of military age
were permitted to leave in the direction of Tra vnik, for authorities feared that they would be
129
mobilized into the ABiH” .
66. This was the reasoning adopted by the Tribunal, since the Trial Chamber in the Brdjanin
case found that most of the victims of acts which could constitute genocide, and in particular most
of the detainees, were men of military age. Th e Tribunal held that this fact militated against
genocidal intent, and concluded:
“There is an alternative explanation for the infliction of these acts on
military-aged men, and that is that the goa l was rather to eliminate any perceived
12ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 553.
128
CR 2006/7, p. 29, para. 90.
12ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, testimony of witness Amir Dzonlic, Transcript,
pp. 2397-2487. - 44 -
threat to the implementation of the Strate gic Plan in the ARK and beyond. Security
130
for the Bosnian Serbs seems to have been the paramount interest.”
67. The Tribunal therefore concluded that security for the Serbian population was the
paramount interest for the Bosnian Serbs. This conclusion should be evaluated in the light of the
fear to which we referred earlier. Fear was the main motive for all the acts of the Bosnian Serbs,
fear was the reason for the adoption of the firs t strategic objective, separation of the other
communities and the creation of the Serbian State. Fear caused crimes to be committed, but the
motive behind those crimes was not the destructi on of the Bosnian Muslims and Croats, who had
55 been allied in the heinous crimes perpetrate d during the Second World War. Crimes were
committed against Muslims and Croats, but none of those crimes was committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such.
68. Furthermore, in the Stakic case, both the Trial Chamber and the Appeals Chamber of the
Tribunal for the former Yugoslavia, accepted the si ncerity of the statement by Milomir Stakic,
mayor of Prijedor, in 19 92, during the war when the tragic ev ents were taking place that: “those
who stained their hands with blood will not be able to return. Those others, if they want . . . when
131
the war ends, will able to return” . Such a statement by a person occupying an important position
in the Bosnian Serb and SDS party hierarchy clearly shows that the Bosnian Serbs had no intention
of destroying the Bosnian Muslims, but inte nded to displace them, and to displace them
temporarily. That intention to displace the Bo snian Muslim population was motivated much more
by fear for Serb interests than by a real desire to expel the Muslim population.
69. The intention to displace the population may be deduced from the decisions adopted on
2June 1992 by the municipalities in Bosanska Krajina, including Biha ć, Bosanski Petrovac,
Bosanska Krupa, Sanski Most, Prijedor, Bosanski Novi and Klju č, which agreed to the following
policy:
“All seven municipalities in our subregion agree that Muslims and Croats
should move out of our municipalities until a level is reached where Serbian authority
can be maintained and implemented on its own territory in each of these
municipalities. In this respect, we request that the Crisis Staff of the Autonomous
130
Ibid., Judgement, 1September 2004, para. 979.
13ICTY, Prosecutor v. Milomir Stakic , case No.IT-97-24-T, Judgemen, 31 July 2003, para.554; case
No. IT-97-24-A, Judgement, 22 March 2006, para. 56. - 45 -
Region of Krajina provide a corridor for th e resettlement of Muslims and Croats to
132
Central Bosnia and Alija’s independent state of BIH because they voted for it.”
70. This document not only shows the intention to displace the population, but to displace it
temporarily until the organs able to guarantee pr otection and security were established. This
56 document, when taken together with the statem ent by Milomir Stakic quoted earlier (para.51),
clearly shows that the actions of the Bosnian Serb s were not directed against the Bosnian Muslims
and/or Croats as such, but that their purpose was to protect the Serb population. Unfortunately, the
authorities were at loss as to how to keep control of the situation ⎯ unsurprisingly so given the
current context of the war in Bosnia and Herzegovina.
71. As to the displacement of the population, it should be noted that the Trial Chamber
concluded in the Stakic case: “The intention to displace a population is not equivalent to the
133
intention to destroy it.” Indeed, it may even be wondered wh ether the intention to displace the
population is compatible with the intention to destroy. William Schabas considers that ethnic
cleansing is aimed at displacing the population just as genocide is aimed at destroying it. In his
opinion “it is logically inconceivable that the two agendas coexist” 134. William Schabas’s position
is correct, since the population displaced is pate ntly not a population destroyed. The population
exists, circumstances may change, as indeed they did change in this case, and the population may
return. People harbouring the intention to destroy would certainly not have allowed the bulk of the
population to leave and to live sometimes only a few kilometres from their usual homes.
72. In the Brdjanin case, the Trial Chamber investigated the Strategic Goals adopted at the
16th Session of the Assembly of the Serbian People in Bosnia and Herzegovina together with their
implementation and found that it could not deduce therefrom that genocide had been committed in
Bosanska Krajina. The Trial Chamber found:
“While the Trial Chamber is satisfied that the Strategic Plan was to link
Serb-populated areas in BiH together, to ga in control over these areas and to create a
separate Bosnian Serb state, from which most non-Serbs would be permanently
removed, and that force and fear were used to implement it, it is not possible to
conclude from the evidence actually brought fo rth in the instant case that there was an
132
ICTY, Prosecutor v. Radoslav Brdjanin , case No.IT-99- 36-T, Judgement, 1 September 2004, para.967,
footnote 229, Exhibit P 229.
133
ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 554.
13William Shabbas: “Genocide in International Law”, The Crime of Crimes (Cambridge University Press),
Cambridge, 2000, p. 200. - 46 -
intenti135to do so by destroying the Bosn ian Muslim and Bosnian Croat groups of the
ARK.”
57 73. Where the realization of the Strategic Goals in the Bosanska Krajina region is concerned,
the Tribunal was thus able to conclude that the implementation of t hose goals engendered the
forced transfer 136. Certainly, no one can or indeed wishes to justify these acts, which are
international crimes, but crimes against humanity, not genocide.
(b) Second Strategic Goal: establishment of the corridor between Krajina and Semberija
74. The establishment of the corridor between Kr ajina and Semberija, which is in effect the
corridor between Bosanska Krajina and eastern Bosnia , was indispensable to the survival of the
population of Bosanska Krajina.
75. At the time when the Assembly of the Serbian People adopted the Strategic Goals, the
Bosanska Krajina region was completely separated fr om the other Serb territories. This would not
have been a matter of particular concern in norma l times, but Bosanska Krajina was then enclosed
within a hostile environment and was completely surrounded by Croat and Muslim forces.
76. At that time, the Croats represented a seri ous threat to the Bosnian Serbs and it was clear
that supplies to the population in Bosanska Krajina would be impossible through Croatia.
Mr.Ewan Brown, the Prosecutor’s military ex pert, wrote in his report submitted in the Brdjanin
case:
“The threat posed by the Croats however was not only a perceived one but in
some instances became very real . . . In March-April 1992 the Croats seized control of
the Bosanski Brod and Derventa areas bloc king the road that linked Banja Luka
through the corridor to Belgrade.” 137
77. In spring 1992, Bosanska Krajina, under th reat from the Croat military, therefore found
itself in a difficult economic and social situati on. That situation was acknowledged by the Trial
Chamber in the Brdjanin case, which found that the economic situation posed problems for
58 Bosanska Krajina, and stated: “Undoubtedly, the worsening economic situation also accounted for
138
the dismissal of several non-Serbs, as well as of Bosnian Serb employees” and also that:
13ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 981.
136
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 997.
13Ibid., Military Developments in the Bosanska Kr ajina 1992, Ewan Brown, Military Analyst,
27 November 2002, p. 13.
13ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 84. - 47 -
“The Trial Chamber agrees that the armed conflict in Croatia in 1991 had a
disastrous impact on the economy of Bosnia a nd Herzegovina, and particularly that of
the Bosnian Krajina. There is evidence that several business concerns and enterprises,
including public and socially owned ones, we re not working at levels that would be
139
sustained during normal times and that this resulted in unemployment.”
78. This difficult economic situation certainly influenced the whole population, which was
beginning to realize the danger of a war. Just as the Bosnian Serbs feared the Muslims and Croats,
they too feared the Serbs. The Trial Chamber in the Brdjanin case stated:
“Already before the outbreak of the ar med conflict in BiH, Bosnian Muslims
and Bosnian Croats living in the Bosnian Krajina were feeling increasingly insecure
and started leaving the region in convoys . . . The non-Serb population often sought to
leave, and re140sted the convoys, which we re then organised by the Bosnian Serb
authorities.”
This conclusion by the Tribunal for the former Yugoslavia certainly corresponds to the reality.
No-one can deny that the forced transfer of populations took place, but many people left their
homes before the war, before the beginning of the armed conflict, simply out of fear.
79. We may consider fear to be justified or unjustified. We may consider that the reasons for
that fear either did or did not exist. Yet the fact remains that people were afraid. Fear is a feeling,
and by its very nature subjective. It may have been completely groundless, yet even so it still
existed and among the Serbs of the Bosanska Krajin a region, it triggered actions aimed at the
creation of the Serb State, and among the Croats and Muslims a massive exodus of the population.
80. In the Bosanska Krajina case, the Tribuna l for the former Yugoslavia ascertained that
conditions in the camps were bad. Conditions were simply bad a ll over Bosanska Krajina. The
59 most poignant evidence of this disastrous economic a nd social situation is certainly the deaths of
12new-born infants in BanjaLuka hospital in early June 1992, from lack of oxygen 14. And this
lack of oxygen was caused by the isolation of Bosanska Krajina, hemmed in by hostile forces
which would not allow convoys to pass thr ough. Unless the corridor was opened up, the
population of Bosanska Krajina could not survive.
81. The importance of the second strategic goal, whose purpose was to rally Bosanska
Krajina and Eastern Bosnia is obvious. This goal w as certainly not aimed at the destruction of the
13Ibid., para. 1038.
140
Judgement rendered by the ICTY Trial Chamber in the case the Prosecutor v. Radoslav Brdjanin ,
1 September 2004, para. 116.
14ICTY, Prosecutor v. Radoslav Brdjanin (IT-99-36-T), Exhibits DB 346 to DB 357. - 48 -
Croats or Bosnian Muslims. It was necessary to enable the peoples of Bosanska Krajina, of all
nationalities, to survive.
82. This disastrous economic and social situ ation was the only reason why the Bosnian Serb
army had become involved in the operation to ope n up the corridor between Western Bosnia and
Eastern Bosnia in summer 1992.
83. The Applicant claims that, in realizi ng this second strategic goal, the Bosnian Serbs
142
forcibly took over the municipality of Bosanski Šamac . The Bosnian Serbs did establish power
in the municipality of Bosanski Šamac and certain crimes were committed there in the period
following their seizure of power. Yet, the crim es committed in Bosanski Šamac municipality must
be placed in the very specific context of the geogr aphical situation of the town of Bosanski Šamac,
which is situated not only in the corridor linking the territories populated by the Serbs in Western
and Eastern Bosnia, but also on the border between Croatia and Bosnia and Herzegovina.
84. Owing to the war in Croatia between the Croats and the Croatian Serbs, the Croatian
143
Croats aided the military organization of the Bosnian Croats and, before the beginning of the war
in Bosnia and Herzegovina, organized numerous attacks on the Serb population, but also on the
Yugoslav national army, which was then the legitimate army in Bosnia and Herzegovina.
85. The Tribunal for the former Yugoslavia held, in the case relating to Bosanski Samac, that
the first incidents, which took place more than six months prior to the outbreak of the fighting in
60
Bosnia and Herzegovina, were directed against the Serbs and the Yugoslav national army, at the
time when Bosnia and Herzegovina was still part of Yugoslavia. The Tribunal held that: “In
autumn 1991 and March 1992 Croatian paramilitary a ttacked JNA barracks and garrisons in areas
144
around Bosanski Samac” and also that: “On 27 January 1992 a Serb orthodox church was
mined.” 145
142
CR 2006/5, paras. 68-69.
143
ICTY, Prosecutor v. Blagoje Simic et al. (Bosanski Samac), case No. IT-95-9-T, Judgement, 17 October 2003,
para. 253.
14Ibid., para. 184.
14Ibid., para. 185. - 49 -
86. In addition, Trial ChamberII found that the Muslims and Croats had begun to arm
themselves 146 and to organize armed units in the autumn of 1991, that is before the Serbs had
adopted the “Variant A and B instructions”, which in this context can be seen to be what they really
were: the outcome of fear and a reaction to a threat.
87. The Tribunal found beyond all reasonable doubt that armed units and Bosnian Muslim
patrols had been operating in Bosanski Samac as far back as September 1991. These units and
patrols were present in the municipality of Bosanski Samac throughout the period up to
147
April 1992 . In addition to Muslim military units, th e Trial Chamber also found that there were
Croat checkpoints 14. Finally, the Chamber concluded tha t: “Croatian and Muslim paramilitary
groups were also active in the region. Croatian armed forces, often wearing ZNG [that is Croatian
Army] uniforms, were present in the Croa tian populated villages in Bosanski Samac
Municipality.” 149
88. It should be noted that the municipality of Bosanski Samac had 32,960inhabitants in
1991, 44.7 per cent of whom were Croa ts and 6.8per cent Bosnian Muslims 150, which means that
the Croatian and Bosnian Muslim population together accounted for slightly more than 50 per cent
of the municipality’s total population, or roughly 17,000 persons.
89. There can be no doubt that, during the war pe riod, but even before the war, part of the
61 population of Bosanski Samac left the town. In th e trial concerning the events at Bosanski Samac,
which lasted more than two years, the Trial Ch amber accepted the statements of witnesses who
testified that: “a substantial number of reside nts of Bosanski Samac were evacuating themselves
and their families in the period prior to the take over”. The findings of the Trial Chamber clearly
demonstrate that members of all the ethnic groups left Bosanski Samac in the year prior to the
151
conflict . Moreover, it should be noted that Trial Chamber II, at the conclusion of the trial, found
two persons guilty of a crime against humanity ⎯ deportation. They were found guilty by reason
146Ibid., para. 251.
147Ibid., paras. 245-246.
148
Ibid., para. 244.
149
Ibid., para. 249.
150Ibid., para. 175.
151Ibid., para. 193. - 50 -
of the deportation of 16pe rsons, Croats and Muslims 15. Sixteen deported persons out of a
population of 17,000.
90. The Trial Chamber evaluated evidence duri ng years of trial proceedings, and found that
16 persons had been deported. It cannot be denied that other cr imes were committed in Bosanski
Samac. However, the crimes committed in Bosan ski Samac were certainly not all genocidal in
nature. The crimes committed in Bosanski Sama c were committed by local residents, on an
individual basis, they were unplanned and they were certainly unconnected with implementation of
strategic objective No. 2 which, moreover, was not even considered by the Tribunal for the former
Yugoslavia in the Bosanski Samac case.
91. On the other hand, the Trial Chamber in the same case paid particularly careful attention
to the document entitled “Variant A and B instru ctions”. The Tribunal did not accept that the
document had had an impact on the events at Bosanski Samac, and concluded:
“The Trial Chamber is satisfied that th e Assembly of the Serbian People of the
Municipality of Bosanski Samac and Pela gicevo was established according to
recommendations of the leadership of Repub lika Srpska, but does not accept that it
was formed in accordance with the so-called ‘V ariant A and B’ instructions issued by
153
the SDS Executive Board on 19 December 1991.”
And the Trial Chamber held finally that:
“[it] is not satisfied that it is possible, upon the evidence, to extend the common plan
to the political leadership of Republik a Srpska, and to demonstrate that the
62 Instructions for the Organization and Activit y of the Organs of the Serbian People in
Bosnia and Herzegovina in Extrao rdinary Circumstances, published on
19 December 1991 by the SDS Main Board . . . were formally delivered from the SDS
Executive Board on the national level to the municipal authorities in Bosanski
Samac... The Trial Chamber is not satisfied beyond reasonable doubt that the
existence of a common plan to persecut e non-Serbs in Bosanski Samac Municipality
can be vertically extended to the political leadership of Republika Srpska.” 154
92. The establishment of the corridor was a military operation, a necessary military
operation, since the western part of Republika Srpska, meaning the Serb population in western
Bosnia as well as Croatia, could not survive wit hout that corridor. This military operation was
conducted by the army of Republika Srpska. No of ficer in the army of Republika Srpska was ever
charged with crimes committed in the context of that military operation, either by the Prosecutor of
15Ibid., paras. 1051-1052.
153
Ibid., para. 382.
15Ibid., para. 985. - 51 -
the Tribunal for the former Yugoslavia, or by the Prosecutor in Bosnia and Herzegovina before the
War Crimes Court.
93. The same assessment applies to the municipality of Brcko, situated at a strategic point on
the corridor linking western and eastern Bosnia.
155
94. The Applicant mainly cites crimes committed in the Luka camp . First of all, without
regard to the fact that the events at Brcko, and particularly those that occurred in the Luka camp,
156
were investigated by the Tribunal for the former Yugoslavia , the Applicant fails to refer to the
judgment rendered in the Brcko case. It prefers to cite the decision given in the Milosevic case
pursuant to Article 98 bis of the Tribunal’s Rules of Procedure and Evidence, a decision which
does not establish the facts, but only the likelihood that the facts occurred. The decisions rendered
pursuant to Article98 bis of the Tribunal’s Rules merely establish that an incident could have
occurred, but they do not establish that it did occur. The facts referred to in those decisions are not
established facts, but probable facts.
95. The conclusions reached by the Trial Chamber in the Brcko case differ substantially from
the claim made by the Applicant in its Memo rial (para.2.2.1.17) that between 2,000 and
3,000people were killed in the Luka camp in Br cko. In its Reply (Cha p. 5, para. 398), the
63 Applicant put forward an even higher number, between 3,000 and 5,000 persons killed. The
figures cited by the Applicant come from various reports, including the final report of the
157
Commission of Experts and the report submitted by Mr. Tadeusz Mazowiecki, the Special
Rapporteur of the United Nations Commission on Human Rights 158.
96. The facts established in the judgment delivered by the Tribunal for the former
Yugoslavia in the Brcko case were completely different. Trial Chamber I concluded that 66 bodies
had been found in mass graves in the region of Br cko. All the persons killed had been shot and
155
CR 2006/5, pp. 41-43.
15ICTY, Prosecutor v. Goran Jelisic, case No. IT-95-10.
15Final Report of the United Nations Commission of Experts , United, Nations, doc. S/1994/674/Add.2 (Vol. I),
28 December 1994, Ann. III.A, “Special Forces”, p. 142, para. 396.
15Situation of Human Rights in the Territory of the former Yugoslavia, report submitted by
MeT.adeusz azowiecki, Special Rapporteur of the Commission on Human Rights, United Nations,
doc. E/CN.4/1993/50, 10 February 1993, Ann. II, p. 93, para. 749. - 52 -
159
they were all males of fighting age . This fact is important, as a doubt persists as to where and
how these persons were killed. Some of them at least could have been killed in the fighting. In any
event, the Trial Chamber found that: “It appears fro m these exhibits that about sixty persons were
killed in Brcko during May 1992 (of a total Muslim population of about 22,000 people).” 160
97. Sixty-six persons killed is still a large num ber. Too large, because none of these persons
should have been killed. However, the fact is that the Tribunal for the former Yugoslavia
established this figure for the number of victims, which is 30times less than the number of
2,000alleged by the Applicant in its Memorial. It is also 80times less than the number of
5,000alleged by the Applicant in its Reply. The disturbing fact is not that the Applicant alleged
these figures; it had grounds for doing so, as the figures cited by the Applicant were to be found in
the reports of the various committees, United Nati ons committees. The question to be asked, a
legitimate one, is how these committees arrived at these figures. The Tribunal for the former
Yugoslavia based the facts on the forensic evidence and on witness testimony, and underscored the
exaggerations contained in the reports, whic h were moreover analysed by our Co-Agent,
64 SasaObradovic, in his oral presentation of 8March 2006 161. The fact that the different reports
contained such exaggerations should be carefully considered whenever the facts alleged are based
on the reports concerned, even if the latter em anate from United Nations committees. Indeed, the
Tribunal for the former Yugoslavia was never able to confirm the information contained in the
reports.
98. The Trial Chamber in the Brcko case not only established the number of persons killed in
that municipality. It also established that th e military personnel of the army of Republika Srpska
had come to the Luka camp on 19 May 1992, had established order and had improved the régime in
the camp. Goran Jelisic, a mentally disturbed pe rson, who was indicted by the Tribunal for the
former Yugoslavia and subsequently convicted fo r crimes committed in the Luka camp, was not
seen again in the camp after the arrival of the army 162. The Trial Chamber found that it could not
15ICTY, Prosecutor v. Goran Jelisic (Brcko), case No. IT-95-10, Judgement, 14 December 1999, para. 90.
160
Ibid., para. 91; footnote 128.
161
CR 2006/12, p. 36, para. 63.
16ICTY, Prosecutor v. Goran Jelisic (Brcko), case No. IT-95-10, Judgement, 14 December 1999, para. 96. - 53 -
conclude that GoranJelisic had killed under orders, but considered it possible that he had acted
163
beyond the scope of the powers entrusted to him . The Tribunal also found that it could not be
established that there was a plan to destroy the Muslim population in Brcko or elsewhere, and that
164
the murders committed in Brcko did not, therefore, fit within such a plan .
99. Brcko and Bosanski Samac are located in the corridor. If crimes were committed in
those two municipalities, the evidence does not show that they were orchestrated. In both towns,
crimes were committed by local residents, and in the case of Brcko, by a person belonging to
neither the political leadership nor the military structure of Republika Srpska. Neither in Brcko nor
in Bosanski Samac were crimes committed in execution of strategic objective No. 2. In the case of
Brcko, the army of Republika Srpska, which had b een brought in to establish the corridor and thus
to implement strategic objective No. 2, did in fact establish order and put a stop to criminal activity.
65 100. Moreover, the evidence presented by the A pplicant itself does not support the claim of
genocide. Thus, the Applicant stated:
“Members of the SDA, which was the main Muslim political party, were
targeted. For example, people were called out by their surnames and beaten, because
their names were recognized as belonging to those who had been organizers of the
SDA. In another example, one witness saw men from Seselj’s or Arkan’s group kill a
Serb who had tried to help a Muslim flee the former Yugoslavia; later that165ght, the
soldiers killed the Muslim, who was an active member of the SDA.”
Thus the Applicant implicitly acknowledged that the Bosnian Muslims were individual victims
who were not targeted by reason of their belonging to the group of Bosnian Muslims, but by reason
of their belonging to the SDA party. The member s of the SDA, apart from being Muslims, were
political opponents of the Bosnian Serbs. They we re also their military adversaries on the field of
battle. Cruel as this may appear, the fact that th e leaders of the Muslim SDA party were targeted
also seems logical in the context of the civil war raging in Bosnia and Herzegovina at the time.
The acts committed against the leaders of the SDA pa rty, criminal though they might be, cannot in
any sense constitute genocide. They may constitu te war crimes and crimes against humanity, but
they do not constitute genocide.
16Ibid., paras. 95 and 97.
164
Ibid., para. 98.
16CR 2006/5, p. 42, para. 75. - 54 -
101. All the above-mentioned allegations clearly demonstrate that the Bosnian Muslims were
not targeted as a group, but as individuals ⎯ the individual members of the SDA party, who were
Muslims, because the SDA party was the party of the Muslims of Bosnia and Herzegovina. No
doubt exists as to the fact that the SDA party was the political opponent of the SDS party. The fact
that the crimes were committed against political opponents clearly shows that they were committed
for political reasons. These crimes were not commi tted because of the victims’ membership of a
national, ethnical, racial or religious group, but because of political opposition, which in some
cases also entailed military opposition. The lack of a national, ethnical or religious element is
shown, finally, by the murder of the Serb who tr ied to help the political enemies of the Serbs in
166
power .
66 102. No one is denying that all these crimes are serious crimes, international crimes, but they
were not directed against the Bosnian Muslims as a group. They were directed against individuals
who were political opponents of the Bosnian Serbs and who, as opponents, were seen as a threat.
Consequently, these crimes, politically motivated an d directed against individuals, may constitute
crimes against humanity, crimes of persecution in particular, but they do not in any sense constitute
genocide.
Madam President, would this be an appropriate time for the break?
The PRESIDENT: Thank you, Maître Fauveau-Ivanovi ć. The Court now rises and the
hearings will resume at 3 o’clock this afternoon.
The Court rose at 12.50 p.m.
___________
166
Ibid.
Translation