Translation

BHY

CR 2006/10 (translation)

CR 2006/10 (traduction)

Monday 6 March 2006 at 3 p.m.

Lundi 6 mars 2006 à 15 heures - 2 -

10 The PRESIDENT: Please be seated. Professor Condorelli.

COr. DORELLI:

THE GENOCIDE IS ATTRIBUTABLE TO THE R ESPONDENT ⎯ LEGAL CONCLUSIONS (CONTINUED )
SECOND PART )

3. Republika Srpska and the VRS: attribution of their conduct to the Respondent

The creation of Republika Srpska as “part of the FRY”

1. Madam President, Members of the Court, th is morning I raised various points concerning,

first, a group of activities attributable to the Yugoslav State in connection with both the

groundwork for the genocide and the establishment of the instruments by which it was to be carried

out and, second, the active participation of de jure organs of that State in the actual perpetration of

genocide. There is however no doubt that, from the founding of Republika Srpska (initially under

the name Serb Republic of Bosnia and Herze govina) and the formation of the Bosnian Serb

army(VRS), the commission of the great majo rity of the crimes which together constituted

genocide resulted from action by those two entitiassisted by Serb paramilitary militias. The

Respondent’s argument before the Court in this regard is simple, if not simplistic. That argument is

twofold.

2. First aspect: either the crimes alleged by Bosnia and Herzegovina never took place or it

has not been proved that they took place to the extent claimed and in the manner alleged or they did

not contain the elements necessary ⎯ under the 1948Convention ⎯ for them to be characterized

as genocide. I am of course not going to reopen this matter, after the detailed showings made to the

Court first in writing and then orally last week and this morning.

3. It is the second aspect which must be discussed now: that is the Respondent’s denial, not

of the criminal acts, but of their attribution to th e Federal Republic of Yugoslavia. It is argued that

from the time when Bosnia and Herzegovina gained independence and the JNA officially withdrew

from Bosnian territory the crimes committed there could not in any way engage the responsibility

11
of the FRY, as the conduct in question cannot be attribut ed to that State. It is in effect alleged that - 3 -

the conduct involved either acts by individuals or actions ascribable to entities (Republika Srpska

and its army) which were not organs of the FRY and were not de facto acting on its behalf.

4. Obviously, the Respondent makes much, in this regard, of the Tadić Judgement by the

International Criminal Tribunal for the former Y ugoslavia, dated 7 May 1997, in which a majority

of the Trial Chamber (with a dissenting opinion by the presiding judge) stated its view that:

“on the evidence presented to it, after 19 Ma y 1992 the armed forces of the Republika
Srpska could not be considered as de facto organs or agents of the Government of the

Federal Republic 1f Yugoslavia (Serbia and Montenegro), either in opština Prijedor or
more generally” .

And the Respondent accuses Bosnia and Herzegovina ⎯ I have already pointed this out ⎯ of

making selective and improper use of this judgment, by attaching greater importance to the views

of the dissenting presiding judge (Judge McDonald) than to the decision itself.

5. Unfortunately (for the Respondent), it knows only too well that its argument based on the

1997 Tadić Judgment has in the meantime lost its force, ever since the Appeals Chamber of the

International Criminal Tribunal for the former Yugoslavia, in its judgment of 15July1999,

reversed the earlier judgment on precisely the point quoted. Basing its decision on the same

facts ⎯ and it is important to note this ⎯ the appellate court concluded that the conflict in Bosnia

and Herzegovina after 19May1992 was an intern ational one because “the armed forces of the

Republika Srpska were to be regarded as acting under the overall control of and on behalf of the

2
FRY” . It will be most interesting to hear what the Respondent has to say about this marked

change in the case law, which provides striking objective support for Bosnia and Herzegovina’s

position. That said, the Applicant is well aware of the fact that the Court is not bound by the

Tribunal’s legal findings, even those which are exactly in terminis, especially since the Tribunal’s

Appeals Chamber stated that it was not following your own earlier jurisprudence. Bosnia and

Herzegovina expects that, on a point of law, this Court will come to its decision independently,

mindful that the facts on which the Criminal Tr ibunal relied in the two judgments are to be

considered as established and even ⎯ as the Court will acknowledge ⎯ more firmly and broadly

established today, thanks to the evidence gathered and submitted to judicial determination in the

1
ICTY, Prosecutor v. Tadić, case No. IT-94-1-T, Trial Chamber II, Judgement, 7 May 1997, para. 607.
ICTY, Prosecutor v. Tadić, case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999, para. 162. - 4 -

12 course of more recent trials before the Interna tional Criminal Tribunal for the former Yugoslavia

and in the course of the present proceedings.

6. Ending this brief digression, I now come to the second aspect. As you saw in our written

pleadings, Bosnia and Herzegovina is convinced th at all of the acts falling within the scope of

genocide which were committed by Republika Srpska a nd its army must be deemed ascribable to

the FRY. As it is not denied that, in Republika Sr pska’s view, its army is to be considered an

organic part of its structure, we should ⎯ in order to demonstrate the merit in law of the

Applicant’s certitude ⎯ turn our attention without further delay to Republika Srpska, to examine

its essence and to analyse the true nature of its relations with the FRY during the years of genocide.

I suggest that we begin the examination of these re lations by first adopting the point of view of

Republika Srpska; we will then change perspectiv e and will look at the same relations, as it were,

from another standpoint: that of the FRY.

7. Madam President, the historical process leading up to the proclamation of Republika

Srpska is well known, having been the object of thorough studies and of the presentations last

week. I do not intend to enter into detail now on this subject. Fo r the purposes of my analysis, it

suffices to observe that the creation of Republika Srpska resulted from the conjunction of two wills.

First, the will of the Serbian-Montenegrin State, under the banner of the “Greater Serbia” ideology,

to maintain its hold over the Serbs of Bosnia and over the Bosnian territory seen as belonging to

them, by preventing at all costs their “abandonment” ⎯ so to speak ⎯ to control by another

independent State with a non-Serb majority historically seen as hostile, if not an enemy; second,

the will of the Bosnian Serbs not to be cut o ff from Serbia and to remain under its protection

against the dangers which would arise (according to very widespread fears) from the inclusion of

their territory in a State with a non-Serb majority. For my presentation, however, the configuration

actually given to Republika Srpska from the time it was formed is of greater importance than the

historical process having given rise to it and th e motives underlying it. And, in studying that

configuration, what better way than to take a look at the founding documents, which should tell us

not only how the entity thus formed was going to be shaped but also explain the fundamental
13
choices prompting its structure and functioning: I wish to speak about the Constitution of - 5 -

Republika Srpska at that time and about several other crucial earlier documents on the basis of

which it was shaped.

8. The first document I am going to ask you to consider is the first declaration by the

“Assembly of the Serb People in Bosnia-Herze govina”, which was proclaimed and founded on

24October1991 by a meeting of Bosnian Serb Memb ers of Parliament dete rmined to take action

against the majority decisions taken by the Parlia ment of the Socialist Republic of Bosnia and

Herzegovina leading towards the country’s independence. Besides the decision to hold a

referendum on the following 9 and 10 November to enable the popular will of the Bosnian Serbs to

express itself, the Assembly was on the same day to adopt a declaration containing the following

passage:

“3. The Assembly of the Serb people in Bosnia-Herzegovina solemnly declares
that the Serb people has historic rights and interests in living in a single federal State
together with other parts of the Serb people as well as with other peoples sharing the
3
same desire. No one can deprive the Serb people of these rights and interests.”
[Translation by the Registry.]

9. Another document from that same day, adopted by the same Assembly, is entitled

“Decision of the Serb people of Bosnia-Herze govina to remain in the common State of

Yugoslavia” 4 and notes the determination that “the Serb people in Bosnia-Herzegovina shall

remain in the common State of Yugoslavia t ogether with Serbia, Montenegro, the Serb

Autonomous Regions of Krajina . . . ”.

10. Madam President, it is clear, the will firmly expressed by the representatives of the

Bosnian Serbs is not in the least to move to wards the founding of a new State through secession

from Bosnia and Herzegovina: what is desired, what is decided, is to remain within the State of all

the Serbs, even if this could only be achieved at the expense of the territorial integrity of Bosnia

and Herzegovina, that is to say in breach of f undamental principles of international law. This

resolute will was reiterated and even more vigorously manifested in the declaration of

9January1992 whereby that same Assembly proc laimed the “Republic of the Serb People of

Bosnia-Herzegovina” 5. This declaration first sets out a preamble noting, among other things, that

3
Declaration by the Assembly of the Serb people in Bosnia-Herzegovina, Sarajevo, 24 October 1991, published in
the Official Gazette of the Serb people in Bosnia-Herzegovina, No. 1/92 (15 January 1992), p. 5.
4
Ibid., p. 1.
5Ibid., No. 2/92 (27 January 1992). - 6 -

14 the consent of the Bosnian Serb people to co-exi st with other ethnic groups in the Republic of

Bosnia and Herzegovina had been given strictly on the condition that Bosnia and Herzegovina

remain within the federal State and that, accord ingly, imminent independence forced the Serb

people “to defend its freedom, sovereignty, the stat us of a constituent people, its dignity and its

future”. The operative part of the declara tion, referring to the “plebiscite” of 9 and

10 November 1991 and to the will expressed by the Serb people to “remain in the common State of

Yugoslavia”, and after holding that “it shall here by be established and proclaimed the Republic of

the Serb People of Bosnia-Herzegovina”, lays down as the first founding principle: “The Republic

shall be part of the Federal State of Yugoslavia as its federal unit.”

11. This fundamental principle was again laid down in Article 3 of the Constitution adopted
6
a few weeks later, on 28 January . In that document the principle is fleshed out and applied in

various ways. Thus, for example, Article 6 provides that citizens of the Republika Srpska also hold

Yugoslav nationality, as well as being entitled (as specified in Article34) to call themselves

Yugoslavs. Article 109 establishes the right and duty of all citizens of Republika Srpska to protect

and defend not only the sovereignty and the territori al integrity of Republika Srpska, but also those

of Yugoslavia, by co-operating with the JNA and the territorial defence forces. Articles 164 to 167

lay down various procedures for the participation of the competent organs of Republika Srpska in

the legislative activity of the Yugoslav Parliament through the presentation of draft laws. Further,

Article180 governs the appointment of represe ntatives of the Bosnian Serbs to various

representative bodies in Yugoslavia and Article181 specifically prescribes the procedures for

electing legislative representatives of Republika Srpska to sit in the Yugoslav Parliament.

12. It is easy to see: the portrait which Republika Srpska drew of itself in its own

Constitution at its birth does not look anything lik e the picture of a sovereign State, which the

Respondent claims it to be! Has anyone ever seen a sovereign State all of whose nationals are by

law citizens of another sovereign State and under a duty to defend that State by force? Has anyone

15 ever seen a State take steps as regards granting or continuing to hold citizenship in another State?

Has anyone ever seen a sovereign State whose law arranges for the election of members of

6
Ibid., No. 3/92 (16 March 1992). - 7 -

parliamentary bodies of another sovereign State to represent the interests of the people of the first

State in those bodies? In summary, the Respondent’s argument that Republika Srpska was a State

subject of international law, even without having been recognized (no other State having in fact

recognized it, not even the FRY), this argument does not hold up for the various reasons expounded

at length in Bosnia and Herzegovina’s Reply, but especially because the fundamental law of

Republika Srpska, its birth certificate, refutes that argument expressis verbis! The fact that later on

Republika Srpska, with an eye to the peace agre ements being prepared and by way of an

amendment to its Constitution 7, was to call itself a sovereign State makes no difference here: it

was proclaiming itself independent of Bosnia and Herzegovina, certainly not of the FRY; it openly

held itself out at the outset as part of the FRY and was to continue to do so! I repeat the

fundamental principle: “The Republic shall be part of the Federal State of Yugoslavia as its federal

unit.”

13. While the documents I have commented on, in particular the Constitution of

28January1992, do antedate the (official) withdr awal of the JNA, which was also supposed to

symbolize the withdrawal of the FRY from a territo ry which had previously lain within its own

sphere of sovereignty but had in the meantime be come part of the territory of another, newly

independent, State, we see from the consolidated version of Republika Srpska’s Constitution, dated

8
17 December 1992 (i.e., seven months after the withdrawal) that the version from January was

indeed significantly touched up, in an effort to make Republika Srpska look, from the outside, more

like a real State. But the substance remained the same: in particular, the principle that “[c]itizens

of the Republic shall have the citizenship of Yugoslavia and the citizenship of the Republic”

(Article 6) subsisted; but, most importantly, the basic principle (Article 3), “[t]he Republic shall be

part of the Federal Republic of Yugoslavia”, subs isted. That, Members of the Court, raises the

question: can one seriously conceive of a Stat e as sovereign and independent when, in its own

16 Constitution, it itself proclaims that it is not i ndependent, therefore not sovereign? When it

officially holds itself out as part of another sovereign State?

7
Ibid., No. 28/94 (11 November 1994).
8
Ibid., No. 21/92 (31 December 1992). - 8 -

14. In the interest of thoroughness, I shall r ecall that, in any event, subsequently the Dayton

Agreements of 21November 1995 we re expressly to answer the question of Republika Srpska’s

independence in the negative. In the first place, Article X of the Framework Agreement stipulated

that the Federal Republic of Yugoslavia and Bo snia and Herzegovina “recognize each other as

sovereign independent States with in their international borders” 9, the borders of Bosnia and

Herzegovina obviously encompassing Republika Srpska ’s entire territory. Secondly, it should be

recalled that Annex4 of the Framework Agreem ent lays down the Constitution of Bosnia and

Herzegovina, ArticleIII, paragraph3 (b), of which explicitly states that the Constitution prevails

over the constitutions of the entities making up Bo snia and Herzegovina (including Republika

10
Srpska) and supersedes any inc onsistent provisions in them : in other words, Bosnia and

Herzegovina is a federal State having the status of subject of international law, a status not however

enjoyed by the two federated entities, that is , Republika Srpska and the (Croatian-Muslim)

Federation of Bosnia and Herzegovina. Moreover, as we know, since Dayton the conformity of the

Constitution of Republika Srpska with that of Bo snia and Herzegovina is subject to internal

oversight, by the Constitutional Court of Bosnia and Herzegovina, and also to international

oversight, under the auspices of the Council of Europe, through opinions issued by the “Venice

Commission”; incidentally, these have been larg ely followed and have le d to the adoption of

waves of successive amendments 11.

15. But let us return to the era of the genoc ide: as I have already pointed out, Republika

Srpska’s self-portrait does not look anything like the picture of a sovereign State. By contrast, it

must be said that the self-portrait is perfectly lifelike if credence is given to the proclaimed

intention to ensure that Republika Srpska remained a component of the federal State, in short, a

17
territorial unit (or federated state) part of a greater State grouping: exactly the type of entity whose

acts are attributable, under the principles of intern ational law governing State responsibility, to the

federal State, as indicated in Article 4 of the Articles issued by the International Law Commission.

9
A/50/790, p. 4.
10Ibid., p. 64.

11For example, Venice Commission, CDL (1996)070e-restr Strasbourg, 27 Se ptember 1996, “Compatibility of
the Constitution of the Republika Srpskwith the Constitution of Bosnia and Herzegovina following the adoption of
amendments LIV-LXV by the National Assembly of Republika Srpska”. - 9 -

16. Yet, Madam President, Members of the Court, understanding how Republika Srpska saw

its own relations with the FRY is not all there is to it: it takes two to marry! In other words,

Republika Srpska’s desire to be “a part of the Federal Republic of Yugos lavia” could be fulfilled

only on one condition: that it closely matched the desire of the latter.

17. In fact, that desire was a foregone conc lusion, because, as we know, the creation of the

RS was the product of political impetus within the Government of the Federal Republic of

Yugoslavia and could not have succeeded without action and support by it. However, the inclusion

of Bosnian Serbs, and of the territory considered to belong to them, as “a part of the FRY” had to

be accomplished covertly by the FRY, so as to respect, at least on the face of it, the series of

mandatory resolutions of the Security Council, and of the General Assembly, demanding its

withdrawal from the territory of Bosnia and Herzegovina. And indeed, the face of compliance was

to be maintained by setting up a “State” and an army formally distinct from the Federal Republic of

Yugoslavia but in fact totally supported by it and totally incorporated in substance into its own

organic structure. The decisions of the Interna tional Criminal Tribunal for the former Yugoslavia

brim with evidence of this plan, which consisted of an attempt to fool the international community

by concealing behind an ostensible separation the continuation of the FRY’s stranglehold on the

Serb part of Bosnia and Herzegovi na: one example, but an especially telling one, to this effect is

the Brdjanin Judgment of 1September 2004, of which I shall shortly quote the most significant - 10 -

18 passage (although I have, Madam President, taken th e liberty of reprinting a longer excerpt, also

highly relevant, in a footnote) . 12

18. Total support, I said: systemic integration. That is easy to show here before the Court,

after the overwhelming, compelling evidence presente d in the oral statements made by Bosnia and

Herzegovina last week and still today. You have been able to see that in this case the word

“support” does not mean backing, even very signifi cant backing, given to an entity in need of

outside help to carry out a particular action. Here, “support” means that the entity in question,

Republika Srpska, was kept alive from the very begi nning by the FRY, that all of its means of

action, military and other, were furnished to it by the FRY, that this was entirely a matter of choice

by the FRY, as a tool of its policy.

Republika Srpska’s dependence on the FRY

19. Madam President, allow me to cite word for word paragraph15 of United Nations

General Assembly resolution 49/10 of 8 November 1994: the Assembly

“[c]alls upon all parties, in particular th e Federal Republic of Yugoslavia (Serbia and
Montenegro), to comply fully with all Security Council resolutions regarding the
situation in the Republic of Bosnia and Herzegovina and strictly to respect its
19
territorial integrity, and in this regard concludes that their activities aimed at achieving
integration of the occupied territories of Bosnia and Herzegovina into the

12
Prosecutor v. Brdjanin, case No. IT-99-36-T, Judgement, 1September 2004, not yet available in French.
“150. From 1991 onwards, the main objective of the SDS, as well as of the authorities in
Belgrade, was to preserve SFRY as a State and to ensure that Serbs would continue to live in a single
State38. The secession of BiH was expected to have a consequential impact on the SFRY and the

Bosnian Serbs who would find themselves in a minor ity and without a unified territory linked to the
Republic of Serbia. The importance given to the Po savina Corridor linking the Bosnian Serbs382 the
Bosnian Krajina to the FRY indicates the significance of the ties between the former and the la.ter

151. The Trial Chamber is satisfied that, in te months preceding the period covered in the
Indictment, the SFRY was already making preparations to cover-up the ‘overall control’ it planned to
exercise on the Bosnian Serb Army once BiH gained independence and that this plan needed to be put in
place as international pressure on Belgrade mounted . . .

The Trial Chamber is satisfied that while the evidence may not have disclosed the exact details of
how the VRS related to the main command in Belgrade, it is nevertheless important to bear in mind that a
clear intention existed to mask the commanding role of the FRY:

‘Undue emphasis upon the ostensible struct ures and overt declarations of the
belligerents, as opposed to a nuanced analysisof the reality of their relationships, may
tacitly suggest to groups who are in de facto co ntrol that responsibility or the acts of such
forces can be evaded merely by resort to a superficial restructuring of such forces or by a
facile declaration that the reconstituted frces are henceforth independent of their
erstwhile sponsors.’3

The Trial Chamber is thus satisfied that the st eps taken to create a VRS independent of the JNA
were merely a ploy to fend off any potential accusations that the FRY was intervening in the armed
conflict taking place on the territory of BiH and to appease the requests of the international community to
cease all involvement in the conflict.” - 11 -

administrative, military, educational, transportation and communication systems of the
Federal Republic leading to a de facto state of occupation are illegal, null and void and
13
must cease immediately” .

20. As you have heard, these words are clea r and carry undeniable legal weight. In

extremely firm language the General Assembly ch aracterizes the situation created by the FRY in

the “occupied” territories (this is the term u sed) of Bosnia and Herzegovina, as one actually

intended to result in a “ de facto state of occupation”. This de facto state of occupation, which the

General Assembly condemns while demanding that it must cease immediately, is described as

resulting from activities aimed at achieving integration of the territories in question into the

administrative, military, educational, transpor tation and communication systems of the Federal

Republic.

21. I believe, Madam President, that there could be no more cogent summary of the

argument presented and demonstrated to you by Bo snia and Herzegovina. Allow me to recall the

main elements of that argument.

22. Mr.Torkildsen’s address this morning highlighted first of all the fact that Republika

Srpska was fully integrated into the economic, financial and monetary structures of the FRY,

organized, managed and fully controlled by the latter’s governmental institutions. In this

connection, it is particularly significant to note that the National Bank of Republika Srpska (NBRS)

was totally subordinate to the National Bank of Yugoslavia (NBY) and, in particular, received

funds from the latter to cover the budget deficits of Republika Srpska: funds consisting mainly, as

you have heard, of money printed in Belgrade. In short, Republika Srpska was encompassed and

integrated within a single economic space, governed in all respects by the authorities of the FRY.

And it is obviously this total unity of the economi c space which explains the integration of the

administrative, military, educational, transpor tation and other systems to which the General

Assembly referred.

23. You will observe, Members of the Court, th e surprising similarity, in terms of unity and

integration, between this analysis and the one expounded on 9January 1993 by the President of

20 Serbia, SlobodanMiloševi ć himself, before the entire Serb leadership (including the leaders of

Republika Srpska) at the meeting of the “Council for Co-ordinating Positions on State Policy”

13
A/RES/49/10. - 12 -

described by the Deputy Agent of Bosnia a nd Herzegovina, Phonvan den Biesen, on 3March 1.

You were able to hear the remarkable observations of Mr. Miloševi ć when he spoke of the existing

de facto unity between the FRY, Republika Srpska a nd Republika Srpska Krajina on the “political,

military, economic, cultural and educa tional” level, and noted that the question to be asked was:

“how to legalise that unity . . . how to turn the situation, which de facto exists and could not be de

facto endangered, into being de facto and de jure”.

24. Mr.Torkildsen’s address also illustrated the overall budgetary situation of Republika

Srpska and showed that, in 1993 for example, 99 per cent of its budget was financed by Belgrade

and that, of this 99 per cent, 95 per cent was used for military expenditure. There was no change in

that situation throughout the period of the genocide. To this should also be added the salaries of all

the officers in the army of Republika Srpska, which were defrayed ⎯ and I shall return to this ⎯

directly by the FRY. In other words, not only di d all the funds needed to perpetrate the genocide

come from Belgrade, but Belgrade was in fact responsible at all times for the survival of Republika

Srpska, in any and all areas, just as it had been responsible for its establishment.

25. It was therefore no exaggeration to speak of total support on one side and complete

dependence on the other! Indeed, the extent of that support and of that dependence is undoubtedly

the most decisive confirmation imaginable of th e fact that, for the government leadership in

Belgrade, the RS represented the longa manus of their own policy, the utterly reliable instrument of

their efforts to promote “Greater Serbia”.

26. Allow me to comment briefly on the expression “complete dependence”, which, as I

have just shown, precisely epitomizes the relationship between Republika Srpska and the FRY. As

I mentioned this morning, this was in fact the e xpression that your Court used in paragraph 110 of

the 1986 Judgment in the case concerning Military and Paramilitary Activities in and against

21 Nicaragua: it suggested that, if the “complete dependence” of the contras on United States aid had

been proved, it would then have been “right to equate the contras, for legal purposes, with an organ

of the United States Government . . .” 15

14
Phon van den Biesen, “The Respondent’s continued presence”, CR 2006/8, para. 72.
1Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 62, para. 109. - 13 -

27. I intend subsequently to go back over the precise legal consequences to be drawn in this

case, in the light of your Court’s findings, from the “complete dependence” of the RS (and of its

army) on the FRY. For the moment, I shall confine myself to observing how far-fetched it is to

16
speak of Republika Srpska as an independent State which ⎯ according to the Respondent ⎯

though not recognized, satisfied the “conditions of st atehood”. Far-fetched, in this instance, not so

much because of the language used in the b asic texts of Republika Srpska, but because of the

reality on the ground: the reality of complete and utter dependence on Be lgrade, which provided

virtually all necessary means of subsistence. Mere ly on the basis of the elements cited up to now,

Republika Srpska is strikingly reminiscent of the type of situation described by Professor Roberto

17
Ago in his seventh report to the In ternational Law Commission in 1978 , when he argued that

“[s]ometimes the entity which it is desired to re present as a separate State or Government is, in

fact, wholly subject in its actions to the State wh ich created it...” And he went on to say that

“[t]he actions of the organs of the entity in qu estion are then directly attributable to the latter

State . . . in the same way as those of its own organs , or even those of a local authority, a region, a

dependent colonial territory”. You will see how pertinent these words are to our case: the case of

Republika Srpska, which proclaims itself to be a co mponent part of another State and which is in

fact treated as such by the latter, by being taken fully under its wing in a manner that would be the

envy of any territorial authority enjoying such a status ex jure!

28. Moreover, the factual data demonstrating Republika Srpska’s complete dependence upon

the Federal Republic of Yugosla via render utterly superfluous any further discussion of the

question whether the Dayton Agreements imply ⎯ as the Respondent claims ⎯ recognition of

Republika Srpska as a separate and independent State. The Contr acting Parties to the Framework

Agreement are, as we know, three in number (Bosnia and Herzegovina, Croatia and the FRY); it is

true, however, first that the text refers to Re publika Srpska in its preamble, taking note of the
22
18
latter’s authorization of the FRY to sign on its behalf the relevant parts of the peace plan ; and

secondly that the Framework Agreement also refers , in respect of various specific issues, to

16Counter-Memorial, pp. 122 et seq.; Rejoinder, p. 578.
17
Yearbook of the International Law Commission, 1978, Vol. II, p. 52, para. 64, footnote 105.
18A/50/790, p. 2. - 14 -

annexes initialled by, among others, Republika Srpska . But the aim of this reference to Republika

Srpska, like the reference to the (Croatian-Mus lim) Federation of Bosnia and Herzegovina, was

clearly not to recognize their status as independent States, since on the contrary the Dayton

Agreements expressly defined Republika Srpska and the Federation as component parts of the

“independent and sovereign” State constituted by the Republic of Bosn ia and Herzegovina: this is

a point that I explained a few minutes ago (see above, paragraph 14). The aim was to involve all

the actors, whatever their status, in the peace proces s, in order to maximize its chances of success:

this is a routine practice in the Security Council. Moreover, it is well known that, to prevent any

misunderstanding about the status of Republika Srps ka, the latter was not allowed to come to the

negotiating table under its own name, or to sign the Dayton Agreements.

29. Two additional comments should be made on the subject of the negotiation and

conclusion of the peace agreements. As regards the negotiation, it is partic ularly noteworthy that

representatives of Republika Srpska were able to participate exclusively as members of the

Yugoslav delegation headed by the Pr esident of Serbia, Slobodan Miloševi ć: that is an

arrangement highly reminiscent of the practice follo wed by numerous federal States, which, when

it comes to participating in international conferences required to negotiate treaties impinging on the

spheres of responsibility of their federal entities, agree to include representatives of the latter in the

national delegation. Regarding the conclusion of the Dayton Agreements, it was the Federal

Republic of Yugoslavia which provided written assurance to the other parties that it would take all

necessary steps “to ensure that the Republika Srpska fully respects and complies with

19
commitments . . .” . This was an assurance given wittingly, in view of the plenipotentiary powers

23 available to the Federal Republic of Yugoslavia to make the Republika Srpska do what it had to do!

If the FRY agreed to act as absolute guarantor, bl untly declaring itself to be in a position to

“ensure” the desired outcome, it was because it possessed (and acknowledged that it possessed)

total leverage over the conduct of Republika Srpska! A leverage much more convincing than the

reference to a mere promise, of the kind resultin g indirectly from the request made by Republika

19
See Reply, pp. 465 et seq., for references to the different letters from FRY representatives containing this
formula, which are reproduced as annexes to the Dayton Agreements (A/50/790). - 15 -

Srpska to the FRY for the latter to assume “the ro le of guarantor that Republika Srpska shall fulfil

20
all the obligations it took” (letter of 20 November 1995, annexed to the Dayton Agreements) .

30. It is really not worth elaborating on the allegedly independent status of Republika

Srpska. Nor is it worth straying into a detaile d discussion of the argument which the Respondent

seeks to deploy on the basis of the only case th at it cites where Republika Srpska supposedly

refused to give in to pressure from the FRY, namely when the “Vance-Owen” plan was under

consideration in 1993 21. A single case of disagreement! But in any federal system, whether in the

United States, Canada, Switzerland or the Russian Federation, it would be a dream come true for

the federal government to encounter serious opposition from any federal unit on only one occasion!

Moreover, the fact that Republika Srpska, despite its refusal to conform, continued to enjoy

unconditional support from the FRY, raises serious suspicions!

31. But let us leave that point aside, especially since the Respondent ⎯ no doubt realizing

the obvious weakness of the argument to the effect that, prior to the Dayton Agreements, the RS

was a sovereign State ⎯ recognizes that in the final analysis the status of statehood is not of

22
decisive importance for purposes of attribution : and it is right on this point, as we know that it

can easily happen that a State engages its international responsibility for the act of another State, as

is confirmed by various articles of the Intern ational Law Commission text on responsibility, for

example, Article 16, etc. On the other hand, what is of decisive importance for the Respondent is

24
its claim that, from early March 1992, large parts of the territory of Bosnia and Herzegovina were

under the control of the armed forces of Republika Srpska and not (or no longer) those of the FRY.

The RS ⎯ it is alleged ⎯ had its own military apparatus, which was not subordinate to Belgrade.

32. That this was not so has already been conclusively established by the evidence provided

by Bosnia and Herzegovina concerning Republika Srpska’s complete depe ndence on Belgrade in

all areas, as I have just indicated. However, th e matter is readily rebuttable in specific terms, in

light of the equally specific evidence placed be fore the Court concerning the armed forces of

Republika Srpska, namely the VRS.

2A/50/790, p. 125.
21
Counter-Memorial, pp. 287-290; Reply, pp. 805-807.
2Rejoinder, p. 579, para. 3.2.3.9. - 16 -

The armed forces of Republika Srpska and their relationship with the Respondent’s military
machine

33. Madam President, Members of the Court, a llow me to make a non-exhaustive list of the

facts proved to you by Bosnia and Herzegovina regarding the military machine of Republika

Srpska, the VRS, and its relations with the Yugoslav army (first the JNA, subsequently the VJ).

(1) The army of Republika Srpska was created entirely out of nothing by Belgrade, which had

previously intended a part of the Federal Yugoslav Army (JNA) for this: the 2nd military

district. This, with its military personnel, its organization, its general officer commanding

(General Mladić) and his staff, was given a new name. All the personnel concerned had been

carefully chosen so that their loyalty to theSerb cause could be counted on. Extra military

personnel from Belgrade were then authorized throughout the period concerned, and there was

routine rotation of men between the two armies.

(2) On its formation in 1992 the army of Republik a Srpska was fully equipped by the JNA with all

the necessary weapons, equipment and materiel for its operations.

(3) All officers in the VRS remained under FRY military ad ministration, which continued to deal

with all aspects of management of their military careers and their personal circumstances, even

after the Dayton Accords. Their salaries, as we ll as the salaries of all other military personnel

25 under contract, were still paid from Belgrade wit hout a break, including (until 2002) that of the

supreme commander of this army, General Mladi ć. The same applied to retired pay, including

such pay for General Mladić (who received it until November 2005). Officers carried out their

duties by transferring from the VRS to the JNA (subsequently the VJ) and vice versa according

to the needs of the moment. In short, the entire command structure of Republika Srpska during

the years of genocide and beyond consisted of offi cers who retained their status as members of

the armed forces of the FRY and were thus de jure organs of the latter, intended by their

superiors to serve in Bosnia a nd Herzegovina with the VRS. Th is is true in particular of

members of the staff of this army, including all of the superior officers currently on trial before

the Criminal Tribunal for the former Yugos lavia (such as GeneralDragomirMilosevi ć or

Colonel Pandurević), even those already sentenced for crimes relating to the events in

Srebrenica in 1995 (such as Genera Klrsti ć, Lieutenant-coloneOlbrenovi ć and

Captain Momir Nicolić), even those who are still wanted such as GeneralMladi ć, general - 17 -

officer commanding the VRS since its inception throughout the years of genocide and after,

who is accused, as we know, of genocide precisel y because of everything that happened in

Bosnia and Herzegovina from 1992 until the Srebrenica massacre in 1995.

(4) From 1992 and during the entire period of the genocide, the VRS continued to receive from

Belgrade the weapons, materiel, supplies and services required for its operations. Direct

channels for sending requests, verifying requi rements and the delivery and distribution of

military or other materiel remained open and we re regularly used according to standardized

procedures.

(5) The VRS always took concerted action with th e JNA (subsequently the VJ) in the context of

overall strategic and operational planning decided upon in Belgra de. During its operations it

regularly had the benefit of assistance, support, services (including intelligence) and air

surveillance from competent State and federa l army agencies. Information on military

26 operations completed was exchanged on a routine basis. Reports giving Belgrade details of

various military engagements by the Bosnian Serb armed forces were regularly submitted.

(6)Many operations were carried out jointly, through the planning and implementation of

appropriate task sharing.

34. Madam President, we already know very well why the FRY gave Republika Srpska an

army seemingly independent of the JNA (subsequently the VJ): I refer on this subject to the very

eloquent passage in the 2004 Brdjanin Judgement, in which the Trial Chamber declared itself

convinced (I will quote the passage in English be cause the French text is not available on the

Tribunal site) that:

“the steps taken to create a VRS independent of the JNA were merely a ploy to fend

off any potential accusations that the FR Y was intervening in the armed conflict
taking place on the territory of BiH and to appease the requests of the international
community to cease all involvement in the conflict” 2.

35. If now we put together all the facts that I have just systematically set out, it is easy to

appreciate the precise technique used by the FRY in order to pretend to comply with the

requirements of the international community while actually pursuing its policy and actions with no

real change (albeit with purely cosmetic modificati ons); this was simply an attempt to conceal the

23
ICTY, Prosecutor v.Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 151. - 18 -

real situation by severing the formal legal link with a substantial part of its army while keeping the

entire substance of that link intact. In short, the JNA (later known as the VJ) and the army of

Republika Srpska were two separate armies co-operating inter se in appearance only: in fact they

formed a single army. In other words, all the constituents of the VRS retained their effective status

as organs of the FRY and continued to operate as elem ents of the “organic structure” of that State,

while the appropriate legal label was removed a nd replaced by another, purely artificial because

completely ineffective, as an organ of a different State, Republika Srpska ⎯ a Republika Srpska

which itself was nothing more than a simple tool in the hands of the FRY, as I have already shown.

36. Madam President, Members of the Court, Bo snia and Herzegovina is convinced that the

Court will want to strip away this camouflage, to bring to light the truth that strenuous efforts have

27 been made to conceal, and heartily to condemn the FRY’s attempt to d eceive the international

community. In so doing the Court will bring itself into line with the political organs of the United

Nations, which have also recognized the truth th at the FRY was trying to conceal behind a false

façade, as is shown by the many General Assembly and Security Council resolutions that we have

cited during our pleadings. Allow me to suggest that the legal path to follow is a straightforward

one, as I observed this morning in my introduction. This is the path that the International Law

Commission indicated when it emphasized a principl e firmly anchored in the conscience of the

international community, namely that: “a State cannot avoid responsibility for the conduct of a

body which does in truth act as one of its organs merely by denying it that status under its own

law” 2.

37. As we have shown, during the genocide years the VRS “in truth” acted as an organ of the

FRY in all respects. In terms of effective control, it was in all respects integrated into the organic

structure of the said State and, through its con duct of a range of military operations, exercised

executive functions on that State’s behalf. In short ⎯ notwithstanding its label ⎯ the VRS

operated “as a State organ within the organic structure of the State”. All of its acts, all of its

operations, during the conflict in Bosnia and Herzegovina must be characterized under the

24
ILC Report, Fifty-third Session, 2001, A/56/10, p. 95, para. 11 of the commentary on Art. 8 (sic: Art. 4). - 19 -

principles of international law, as acts attributable to the FRY and giving rise to its international

responsibility.

Republika Srpska and the VRS as organs of the Respondent

38. Madam President, Members of the Court, I have argued that both the RS and the VRS

(Republika Srpska and its army) during the genocid e years are characterizable under international

law as organs of the FRY, although that State modi fied its internal law at the time so as to deny

them that status officially, in order to avoid in curring international responsibility for their actions.

In short, I insist that this is exactly the type of situation that the International Law Commission had

28 in mind when it painstakingly drafted Article4, paragraph 2, of the Articles on the international

responsibility of States, in order to make it clear that a State cannot avoid international

responsibility for the conduct of its organs by manipulation (fraudulent or otherwise) of its internal

law.

39. I would now emphasize ⎯ in so far as this is not already clear ⎯ that the principle of

international law governing attributability that is relevant here, and which Bosnia and Herzegovina

asks you to apply, is not, therefore, the one that the Commission sought to codify in its Article 8,

on situations where the actions of individuals are to be regarded as acts of a State. In fact none of

the actions of the RS and the VRS concern the condu ct of private individuals or groups attributable

to the State because it resulted from instructions or di rection or control by organs of the State. On

the contrary, the actions here are to be regarded as carried out directly by organs of the Yugoslav

State, which is exactly what both Republika Srpska and its army effectively were.

40. Do I need to stress the point that acceptance of this argument by your Court does not call

for any change of jurisprudence by you on the topic dealt with by the International Law

Commission in said Article 8? Let me be very clear: Bosnia and Herzegovina is not asking you to

abandon what has come to be called the “Nicaragua test” or to replace it by what is currently called

the “Tadić test”, simply because neither of these, as formulated, is relevant in assessing the validity

of the present argument.

41. As regards the “Nicaragua test”, it is quite obvious that the de facto situation that Bosnia

and Herzegovina has described to you concerning Republika Srpska and its armed forces is in no - 20 -

way comparable, even remotely, with the situation of the contras in Nicaragua: the contras were

not American nationals; they did not form part of a hierarchical organic pseudo-State system

structurally linked to the United States system; they were not fighting in order to incorporate

Nicaragua into the United States; they did not ex ercise stable and effective control over a part of

29 Nicaraguan territory involving the (obviously illega l) exercise of all the functions of public

authority (including the legislative function), and so on. It goes without saying that a situation with

characteristics that are so different cannot be assessed by reference to a principle of law designed to

determine when the conduct of individuals, acting alone or in groups, is to be regarded as the act of

a State.

42. As to the “Tadić test” ⎯ if I may be allowed to use that expression ⎯ as proposed by the

ICTY in 1999, it is true that it was formulated with the factual situation currently before you

precisely in mind. However, the legal issue before the Tribunal cannot be treated in the same way

as the question before this Court today: the i ssue then was whether the conflict in Bosnia and

Herzegovina was to be defined as internal or intern ational, in order to identify the rules applicable

to individual criminal responsibility for war crimes , not to judge the international responsibility of

a State for a wrongful act. Moreover, in the pr esent case the wrongful act at issue is genocide,

which is a crime which in no way presupposes the exis tence of an armed conflict, whether internal

or international. Above all, however, the IC TY put the problem of defining the relationship

between the armed forces of the FRY and those of Republika Srpska in a context which is not

relevant to assessing the validity of Bosnia and Herzegovina’s argument that I have just put to you,

namely that at the critical time Republika Srpska and its army were organs of the Respondent and

not entities outside its organic structure acting on its behalf. In effect, neither the “ Nicaragua test”

nor the “general control” concept (or “ Tadić test”) is of use in relation to the present argument,

since they are designed to resolve the problems of attribution to a State of the conduct of

individuals or groups not chacterizable as organs of the State. That is not the issue that Bosnia and

Herzegovina is asking you to resolve now: it is the very different issue of when and under what

conditions entities that a State is avoiding describin g as its organs in order to evade international

responsibility can be so chacterized. - 21 -

43. Of course, should it happen that your Court is not convinced by the thesis that I have just

put forward regarding the organic nature of the relationship between Republika Srpska and its army

on the one hand and the Respondent on the other, th e possibility that the actions of the RS and its

army could still be attributed to the Respondent on some other basis, to be precise that addressed in
30

Article 8 of the International Law Commission Artic les, could still be envisaged. Professor Pellet

will shortly be addressing his comments to you on this subject.

44. I now close my parenthesis and return to th e thesis that I have advanced: the RS and its

army are to be characterized as organs of the FRY. The Court will doubtless wish to consider that

international practice offers instructive precedents on this topic. There is a whole series of well

known cases, on the basis of which scholarly opini on has devised concepts focussing on what

Professor Brownlie has evocatively described as “The Puppet State Scenario”. At the heart of this

scenario is the notion that (I use Professor Brownlie’s words):

“[a] State cannot avoid legal responsibility for its illegal acts of invasion, of military
occupation, and for subsequent developments, by setting up, or permitting the creation
of, forms of local administration, however these are designated” 25.

45. These are concepts that have been applied many times in international practice: thus, for

example, the jurisprudence of the European C ourt of Human Rights in the “Cypriot” cases cited

last Friday by Professor Pellet can readily be seen as expressing the idea th at the northern Cypriot

republic is essentially a puppet State whose acts e ngage the responsibility of Turkey. These

concepts are also generally accepted in legal th eory: for example, among the leading sources (as

well as RobertoAgo, from whose work I have already given an extract) may be cited

Franco Capotorti 26, KrystynaMarek 27and JamesCrawford 28. As regards the International Law

Commission, I have already explained that it was, inter alia, reflection on these themes that led it to

adopt the broad wording of Article 4 of the text on State responsibility ⎯ language that is entirely

in harmony with the notion that “puppet governments are organs of the occupant and, as such, form

25
I. Brownlie, State Responsibility: Th e Problem of Delegation , in Völkerrecht zwischen normativen Anspruch
und politischer Realität. Festschrift Zemanek, Berlin, 1994, p. 301.
26
F. Capotorti, L’occupazione nel diritto di Guerra, Milan, 1949, p. 92.
27K. Marek, Identity and Continuity of States in Public International Law, Geneva, 1968, p. 114.

28J. Crawford, The Criteria for Statehood in International La w, British Year Book of International Law , 1977,
p. 120. - 22 -

part of his legal order”29. The Commission text is also entirely in harmony with the proposition

31 resulting from a paraphrase of the language of this Court in the Nicaragua case that we have

already cited: in the light of their situation of “total dependence” on the FRY, it is fully justified to

regard both RS and the VRS as organs of the Government of the FRY.

4. Paramilitary units operating against non-Serbs in Bosnia and Herzegovina:

attributability of their conduct to the Respondent

46. I still have to speak to you, Members of the Court, about the various forces, other than

the JNA (VJ) and the army of Republika Srpska, th at played a very active role in perpetrating

genocide in Bosnia and Herzegovina, with ⎯ as you have heard ⎯ even more outrageous cruelty.

These forces can be grouped under the head of “Serb paramilitary formations”. After the

overwhelming mass of evidence that Bosnia and Herzegovina has presented to you about them,

both in writing and orally, after the legal findings, for which we have to thank the International

Criminal Tribunal for the former Yugoslavia (even if it has yet to pass judgment on their leaders),

very few words are needed in order to demonstrate that all of their acts must be attributed to the

Respondent pursuant to the relevant principles of international law.

47. The paramilitary formations concerned can be divided into two categories: those that

were sent from Serbia and those that were set up inside Bosnia and Herzegovina.

48. The first category consisted of groups r ecruited, trained, armed and organized by

Belgrade specifically to take part in this genocidal war. A mass of evidence presented to the Court

shows that certain of these groups answered to th e Government apparatus of the Federal Republic

of Yugoslavia, more precisely, the MUP (Ministry of Internal Affairs) as far as the Scorpions and

Red Berets were concerned, and the JNA for Arka n’s Tigers (Serbian Volunteer Guard). Another

group, Šešelj’s Chetnik Movement (or White Ea gles) had direct ties to President Miloševi ć. It has

been established beyond all doubt that these formati ons operated on the ground in concert with the

regular armies, that is both the JNA (the federa l army) and the army of Republika Srpska, on the

basis of a planned division of labour which proved horribly effective. In other words, the groups

concerned were an integral part of the Serb m ilitary machine, were deployed and acted on orders

29
K. Marek, op. cit. - 23 -

from the military and government authorities of th e FRY and often worked in a co-ordinated way

32 with other military corps to achieve the goal conditioning the action of all of them: the elimination

by all means of non-Serbs from the areas of the te rritory of Bosnia and Herzegovina that it had

been decided properly belonged to the Serbs.

49. The second category covers local paramilitary groups and formations of all kinds that

were formed in Bosnia and Herzegovina following the distribution of weapons by the JNA to the

Serbs of Bosnia. In its Rejoinder, the Respondent admitted that the authorities of Republika Srpska

incorporated all of these groups into the structures of the VRS, placing them under the command of

either the latter or Republika Srpska’s Interior Mi nistry; this was effected by a decision of the

30
presidency of Republika Srpska of 13 June 1992 . For your information, I would remind you that

the ICTY carried out a specific, highly documente d investigation into th e incorporation of these

groups in an important judgment of 2004 that I have already cited: Prosecutor v.

Radoslav Brdjanin in Trial Chamber II 31. Obviously, the official inclusion of the groups concerned

into the organic structure of Republika Srpska and its army is of decisive importance in terms of

the attributability of their conduct: it follows that the acts of these groups cannot be legally

differentiated, as far as their attribution is con cerned, from those carried out directly by Republika

Srpska and its army. I ask the Court to hold that, on the Respondent’s own admission, this

conclusion is beyond dispute.

50. In short, Madam President, this genocid al undertaking perpetrated upon the non-Serbs of

Bosnia and Herzegovina required an enormous effort by the FRY, involving the use of massive

material and human resources. In terms of human resources, it was realized that the regular army

(the VJ and the VRS, which, as we have seen, were in fact a single force) was insufficient; hence

additional forces were needed, prompting the au thorities to organize, finance, arm and support

armed gangs and groups, which, while “irregular”, were led by individuals answerable to the

3Rejoinder, pp.569-570 , para. 3.2.2.4. The textthe “Decision on Prohibition of Forming and Activities of

Armed Groups and Individuals in the Territory of the Republic which are not under the Unique Command of the Army or
the Militia”, adopted by the Presidency of the Serb Republic of Bosnia and He rzegovina on 13June 1992 is included in
Ann. No. R10 r89-r90 of the Rejoinder.
3ICTY, Prosecutor v. Radoslav Brdjanin , case No. IT-99-36-T, Judgement of Trial Chamber II, 1Sept.2004,
para. 97 and note 218. - 24 -

strategic and operational command of the Respo ndent’s organs, which ensured the constant

33 co-ordination of their actions with those of the army.

51. Members of the Court, you are well placed to know that the issue of the international

responsibility of a State for the acts of groups of armed irregulars and of paramilitary militias sadly

arises all too often, and only recently you had just such a case before you. At present, I have no

intention of talking in great detail about this subj ect, with systematic re ferences to the case law,

practice and academic literature. My reason for this is based on the particular, if not unique,

features of the case before you now. Your Court is , in fact, not concerned in the present instance

with one of those frequent examples of armed ga ngs or mercenaries sent abroad, on a mission of

aggression or subversion, in place of units of the regular armed forces which the sending State

prefers not to involve in missions of this type. Nor is this an example of local militias, possibly

financed and supported from abroad, occupying a part of the territory of a State by taking

advantage of the weaknesses of the State apparatu s, sometimes with a view to secession. In the

present case, by contrast, we have a State refusing to evacuate a territory formerly subject to its

sovereignty, but which has become in the meantime an integral part of the territory of another

State, and maintaining over this occupied territo ry, both directly and indirectly, all of its State

authority, as well as all of its machinery of pow er, in order to commit a genocide designed to

“cleanse” this territory of the ethnic groups that it views as enemies. The paramilitary formations

used to this end by the FRY were not, therefore, substitutes for the organs of the State, but tools

chosen to complete the range of means used by the State to achieve its desired goal: tools which

were to be, and were indeed, used in a properly co -ordinated manner together with the other means

at its disposal.

52. Madam President, in my view, the closest (or least distant) parallels with what I have just

described, which could be used as precedents, concern human rights violations committed by

paramilitary formations operating on the territory of a State with the complicity, backing and

support of the organs of that State, with a vi ew to putting down a rebellion or liquidating the

opposition by illegal means. Thus, for exampl e, the Inter-American Commission on Human - 25 -

32
34 Rights, in its Third Report on the Human Rights Situation in Colombia of 26 February 1999 , was

prepared to accept the notion of State responsibili ty in the case of “joint activity between the

military and the paramilitary, particularly when carri ed out with knowledge by superiors”: in such

cases ⎯ the Commission concluded ⎯ “the members of the paramilitary groups clearly act as

State agents” 33. But it also came to the same conclusion when the links between military personnel

and members of paramilitary groups were suffi ciently strong, even if there were no joint

operations: it took the example of links which “permit the State’s security forces to request that the

paramilitary execute certain tasks and the para military may, in turn, demand from the Military

34
Forces the right to undertake criminal activity with impunity” . Later, in the Riofrio Massacre

case, the Commission held that the members of paramilitary groups responsible for the massacre

should be regarded as agents of the Colombian Stat e, having concluded that it was the result of a

35
“joint operation with the knowledge of superior officers” . I hardly need emphasize the extent to

which these concepts are relevant to the case before us now.

53. It is also worth noting that the Special Rapporteur for “Extrajudicial, Summary and

Arbitrary Executions” for the United Nations Hu man Rights Commission, Professor Philip Alston,

in his 22 December 2004 report 36, came to the same conclusions regarding the criteria for deciding,

with respect to the paramilitary groups and vari ous types of militias and death squads which carry

out these kinds of summary executions, the conditio ns under which they can be regarded as State

organs or agents, whose conduct engages the international responsibility of the State concerned.

32OEA/Ser.L/V/II.102, doc. 9, Rev. 1, 26 Feb. 1999, paras. 258-262.

33Ibid. para. 258.
34
Ibid. paras. 259 and 262.
35
Inter-American Commission on Human Rights, Report No. 62/01 case 11.654, Riofrio Massacre, Colombia, of
6 Apr. 2001.
36E/CN.4/2005/7, 22 Dec. 2004, paras. 65 and on. See notably para. 69:

“The most important category of non-State acto r within the context of this mandate are those
groups which, although not government officials as such, nonethelessoperate at the behest of the
Government, or with its knowledge or acquiescence , and as a result are not subject to effective

investigation, prosecution or punishment. Paramilitary groups, militias, death squads, irregulars and other
comparable groups are well known to the readers of th e Special Rapporteur’s reports. There is no legal
complexity in relation to this group because insofar athe Government is directly implicated its legal
responsibility is engaged.” - 26 -

5. Conclusion

35 54. Madam President, Members of the Court, I will now present my conclusions. I will draw

them, if I may, on the basis of what I have just indicated to you.

55. The Applicant has shown you that all of th e Serb forces, which by their acts perpetrated

the genocide concerning the non-Serbs of Bosnia and Herzegovina, that is to say both forces

originating in Yugoslav territory and local forces ⎯ not only the regular armies but also

paramilitary formations ⎯ must be regarded as organs of the FRY, thus making their conduct

attributable to the latter and engaging its international responsibility.

56. In support of this overall conclusion, in its Reply, Bosnia and Herzegovina cited a key

legal argument, which, in my view, it is worth br iefly revisiting. It is an argument based upon the

principles of international law relating to the laws and customs of war, as codified in Articles43

and 91 of Protocol I additional to the 1949 Gene va Conventions, adopted on 8 June 1977. I would

remind you ⎯ in so far as this is necessary ⎯ that both Parties in the present case are Contracting

Parties to that Protocol.

57. In your Judgment of 19December last in the case between the Democratic Republic of

the Congo and Uganda, this Court made a notab le observation regarding Article91 of the 1977

Protocol I. You stated:

“According to a well-established rule of a customary nature, as reflected in
Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on

Land of 1907 as well as Article 91 of Protocol I additional to the Geneva Conventions
of 1949, a party to an armed conflict sha ll be responsible for all acts by persons
forming part of its armed forces.” 37

58. In the same Judgment, you took the opportunity to emphasize that the responsibility of a

State for the conduct of members of its armed fo rces is engaged regardless of whether those

members complied with their instructions or ex ceeded their authority. You also chose to

underscore a notion which has been broadly accepted fo r some time: namely that “by virtue of the

military status and function”, the conduct of offi cers and soldiers must be regarded as the conduct

38
of a State organ even when acting upon their own personal initiative . In the Judgment in

37
Armed Activities on the Territory of the C ongo (Democratic Republic of the Congo v. Uganda) , Judgment of
19 December 2005, para. 214.
38
Ibid., para. 213. - 27 -

36 question, however, you did not need to specify wh o exactly were “the persons that constitute the

armed forces” of a State, the entire conduct of which would therefore be attributable to it.

59. Given the nature of the present case, however, it would be useful to give some

consideration to the issue of how the “armed fo rces” of a State should be defined. Such a

definition appears in Article 43 of the same 1977 Pr otocol I additional to the Geneva Conventions.

It reads: “The armed forces of a Party to a conflict consist of all organized armed forces, groups

and units which are under a command responsible to that Party . . .”

60. Madam President, Members of the Court, all of the armed forces and groups actively

engaged in the genocide against the non-Serbs of Bosnia and Herzegovina, regardless of whether

they were part of the regular forces or of paramilitary formations, correspond fully to this

definition. They were all organized along military lines. They were all placed under an

appropriate command for this type of organization. For each of them, it is clear that they acted on

the orders of commanders under the direction and command of organs of the FRY. For all of them,

there can therefore only be one conclusion: that they were State organs of the Respondent and thus

all of their conduct is attributable to that State and engages its international responsibility.

61. Madam President, Members of the Court, that is the end of my presentation. I imagine

that you would like to take a break of a few minut es, after which, Madam President, I respectfully

ask you to give the floor to Professor Alain Pellet. Thank you.

Le PRESIDENT: Merci beaucoup, M.Condore lli. Permettez-moi de vérifier auprès de

M. Pellet si cela lui convient, ou est-ce-qu’il préfér eait une pause ? M. Pellet, vous préféreriez que

la Cour se lève pendant dix minutes ? Merci.

The Court adjourned from 4.20 p.m. to 4.30 p.m.

37 The PRESIDENT: Please be seated. Professor Pellet.

Mr. PELLET: Merci beaucoup, Madam President. Madame le president, as that is your

wish, Members of the Court, - 28 -

T HE RESPONDENT HAS ENGAGED ITS INTERNATIONAL RESPONSIBILITY (CONTINUATION )

1. My colleague and friend Luigi Condorelli, with his usual mettle and talent, has shown that

the Respondent is responsible for the genocide co mmitted against the non-Serb groups in Bosnia

and Herzegovina, quite simply because the Responden t was itself the perpetrator. Organs of the

Respondent, whether part of the official organizational structure of the FRY ⎯ like the JNA or the

Yugoslav and Serbian MUPs (Ministries of the Interior) ⎯ or fulfilling that function de facto, like

Republika Srpska and the paramilitary forces, committed the acts constituting genocide (and that is

the actus reus) with intent to destroy, in whole or in part, a national, ethnical, racial or religious

group, as such ⎯ a group defined negatively as being made up of all non-Serb elements in the

areas controlled by “Republika Srpska”, which wa s to be made “ethnically pure”, that is the mens

rea, it being understood that the Muslims were the most harshly affected by this genocidal policy.

2. We are now going to turn our attention to the other bases for attributing the crime of

genocide to the Respondent and to its responsibilit y for the other acts listed in ArticleIII of the

1948Convention. I shall first show that, even if you do not find that the Respondent’s

responsibility has been incurred as a result of acts by its organs, that responsibility will nevertheless

still be established by virtue of the fact that it directed and controlled the genocidal conduct of the

persons, groups and entities which committed it. I shall then address the separate question of the

“ancillary acts” to genocide, on the subject of wh ich I attempted to “summarize” the legal position

last Friday, without however going into detail c oncerning the actions constituting such acts, those

actions also being attributable to the Respondent.

38 I. The genocide was perpetrated under the direction or control of Serbia and Montenegro

3. Madam President, as regards the first point, the contention that the genocide was

perpetrated under the direction or control of Serb ia and Montenegro, I do not close my eyes to the

fact that the role I have been assigned on Bosnia and Herzegovina’s courtroom team is a rather

thankless one: it consists of explaining to you essen tially... what we are not pleading! In any

case, I am a bit like a back or even a goalkeeper on a football or rugby pitch, going into action only

when the ball gets too close to the goal ⎯ even though, in the present circumstances, we are not

quite sure where the ball is, because, thus far, our opponent has been very sparing in its use of legal - 29 -

arguments in its written pleadings (especially, in its Rejoinder), so that our strategy must be

“offensive” and “defensive” at the same time.

4. Our fundamental thesis was set out this morning and a short while ago by

ProfessorLuigiCondorelli, a centre forward on our team: organs of the Respondent were the

perpetrators of the genocide. Thus , it is only in the alternative, “subsidiarement”, that we are

contending that, if you were not convinced by that argument, Serbia and Montenegro’s

responsibility would nevertheless still have been incurre d as a result of the fact that, as Article 8 of

the ILC’s Articles on Responsibility of States fo r Internationally Wrongful Acts concisely but

clearly puts it:

“The conduct of a person or group of pers ons shall be considered an act of a
State under international law if the person or group of persons is in fact acting on the

instructions of, or under the direction or control of, that State in carrying out the
conduct.”

Two preliminary remarks are, however, required.

39
5. First, and I stressed this last Friday , genocide is made up of, or perhaps to put it more

precisely, is manifested by, a set of acts ⎯ those listed in Article II of the 1948 Convention, but it

is a global crime which cannot be broken down into many isolated acts by various people. What so

horrifyingly distinguishes it is its mass scale, its sy stematic character and the intention behind it.

Thus, if you consider that one or more organs of the FRY were parties to the genocide as a result of

39
having planned or implemented it, then the Responde nt is the perpetrator (or, at any rate, the

co-perpetrator if you find that entities cons idered legally separate under international law

participated in it) and it is responsible on that basis, as perpetrator. If so, there is no doubt as to the

existence of responsibility; and while we may ask ourselves what impact that might have in respect

of the modalities of reparation, I shall show tomorrow morning that such is assuredly not the case.

6. Second preliminary remark: as my co lleague and friend Luigi Condorelli has shown,

irrefutably I think, there is obviously no doubt that organs ⎯ de jure organs ⎯ of the FRY

participated in the genocide perpetrated agains t the non-Serbs of Bosnia and Herzegovina: the

presidency and, above all, the President of Serbia planned it and continually oversaw the operations

implementing it; the JNA, and later the VJ, its ar my, actively participated in it; and the same is

39
CR 2006/7, pp. 35-37, par66-70. - 30 -

true of the Ministries of the Interior and the police forces of both the FRY itself and the Republic of

Serbia. My earlier comment thus takes on its full significance: the responsibility of the

Respondent is, in any case, incurred through the ac ts of its organs, defined as such under its

domestic law, in accordance with the ironclad rule laid down in Article 4 of the ILC Articles.

7. In respect of the other actors in this appalling tragedy, Republika Srpska and its army, the

VRS, on the one hand, and the Serb paramilitary uni ts, on the other, I believe Luigi Condorelli has

convincingly demonstrated that they as well must be considered to be organs of the FRY.

Moreover, if, “by some remote chance” as the saying goes, you we re to remain unconvinced of

this, Members of the Court, there would hardly be any practical consequence: the Respondent’s

responsibility would nevertheless still be engaged under the principle set out, not in Article 4 of the

ILC Articles, but in Article 8.

8. To prove this, I shall take as my st arting point the Court’s Judgment in the Military and

Paramilitary Activities case. That may strike you as paradoxical, Madam President, because, as I

tried to explain on Friday, the Nicaragua test is not transposable in all respects to the present case.

But there are two clearly separate aspects to be considered in the Court’s 1986 decision:

⎯ first, and this is the very substance of the fa mous “test”, beyond doubt the strictest conceivable

in regard to attribution, you examined the me thods by which the United States exercised its

control and found that the contras were not totally dependent on the Americans; as strict as the

40 conditions laid down in the 1986 Ju dgment may be, it seems to me that, from this perspective,

both the paramilitary units having accomplished thei r sinister task in Bosnia and Herzegovina

and Republika Srpska itself and its army, the VRS, easily satisfied them ⎯ those conditions;

⎯ second, there is the issue of determining the de gree to which the control in question must be

exercised: must it exist over each genocidal act committed by these entities or can we, in the

circumstances of the case, satisfy ourselves with a determination that there was overall

dependence? It is from this second angle that, I believe, we have to “forget Nicaragua”, as I

put it, not because that test is a “bad one”, but because it is not relevant to genocide, as

Luigi Condorelli has just reiterated. - 31 -

9. I shall return to this second aspect , which I already referred to last week 40, after recalling

the elements on the basis of which dependence might be found. I can moreover do this fairly

quickly because they are essentially the same as those Professor Condorelli advanced in showing

that these entities were indeed de facto organs of Yugoslavia at the time.

1. Republika Srpska and the VRS

10. Madam President, the Serbs of Bosnia and Herzegovina proclaimed their “independence”

(that word must of course be put in quotation marks) on 28 February 1992 ⎯ when the territory

which they sought to make ethnically pure was heavily occupied by the Yugoslav army, the JNA 41,

and that decidedly is one element clearly justifying the view that, at least at that date, Belgrade

exercised a degree of control more than sufficien t to ensure that nothing could be done there

without its consent 4. It is true that the JNA purportedly withdrew later, on 19May1992, in

43
response to a forceful demand by the Security Council . Bosnia and Herzegovina has shown in

44 45
41 both its written pleadings and oral argument that this withdrawal ⎯ which the Respondent

coyly refers to as “relocation” 46 ⎯ was purely cosmetic and no reflection of the reality, as my

friend Luigi Condorelli has also just shown:

⎯ the reality is that this involved merely a ch ange in name, the army of Republika Srpska, the

VRS, a pure “legal fiction” in the words of Judge McDonald of the ICTY 47, having simply

40
CR 2006/8, pp. 33-37, paras. 60-71.
41See Reply of Bosnia and Herzegovi na, p. 790, para. 85 (quoting ICTY Prosecutor v. Duško Tadić, case
No. IT-94-1-T, Trial Chamber, Judgement, 7 May 1997, para. 124).

42See ECHR, Loizidou v. Turkey, Preliminary Objections, 23 March 1995, Reports of Judgments and Decisions,
1995, Series A, No. 310 , para. 62, p. 24 or (Merits), 18 December 1996, Reports of Judgments and Decisions, SeriesA,

1996-VI, pp. 2234-2235, para. 52, and pp. 2235-2236, para. 56; see alsoCyprus v. Turkey, Application No. 25781/94,
Judgment, 10 May 2001, Reports of Judgments and Decisions, Series A, 2001-IV, p. 261, para. 76. See also, by analogy,
Armed Activities on the Territory of th e Congo (Democratic Republic of the Congo v. Uganda), Judgment of
19 December 2005, para. 178.
43
S/RES/752 (1992), 15 May 1992.
44
See Memorial, Sec. 2.3.6, pp. 77-81, or Reply, Chap. 8, Sec. 4, pp. 554-573.
45
CR 2006/2 (van den Biesen), pp. 40-42, paras. 37-44; CR 2006/4 (Karagiannakis), p. 15, paras. 21-22.
46Counter-Memorial, Sec. 3.1, p. 245.

47Opinion appended to ICTY, Prosecutor v. Tadić, case No. IT-94-1-T, Trial Chamber, 7 May 1997, p.5; see
also the majority position, paras. 115-117, and ICTY, Prosecutor v. Karadžić and Mladić, cases Nos. IT-95-5-R61 and

IT-95-5-R61, Trial Chamber, Review of the Indictments pur suant to Rule 61 of the Rules of Procedure and Evidence,
11 July 1996, paras. 58 or 77. See also Prosecutor v. Brdjanin, case No. IT-99-36-T, Trial Chamber, 1 September 2004,
paras. 150-151. - 32 -

succeeded the JNA after it was ethnically “purif ied”, “cleansed” of its non-Serb elements

48
(Madam President, I still have trouble uttering these words: purification, cleansing . . .) ;

⎯ further to this masquerade ⎯ and that is indeed what it was ⎯ the entire officer corps of this

army continued to receive its pay and promotions from Belgrade (exclusively) 4; rank-and-file

troops ⎯ but not all of them ⎯ were officially paid by the authorities in Pale but the funds also

came exclusively from the FRY, as Mr.Torkildsen showed very clearly in his statement this

morning 5; further, the VRS received its weapons and ammunition supplies from the FRY 5;

moreover, the Security Council was not taken in because, by a new resolution, dated

30 May 1992, resolution 757 (1992), it demanded that “[a]ction be taken as regards units of the

Yugoslav People’s Army in Bosnia and Her zegovina, including . . . disbanding and

42
disarming . . .” and imposed sanctions on the FR Y for having failed to comply with its earlier

52
demands , sanctions which were only lifted after the Dayton-Paris Agreements of 1995;

⎯ and units of the VJ (the new name of th e Yugoslav army) continued, massively and

systematically, to lend crucial assistance in the ethnic cleansing operations carried out in

53
Bosnia and Herzegovina , including (but not only) in Srebre nica, where they played a vital

role54.

The same observations follow from an examina tion of the role of the Yugoslav and Serbian

55
Ministries of the Interior and the police forces under their authority .

48
See Memorial, pp. 65-66, paras. 2.3. 3.2 and p. 247, para. 6.2.3.1; Reply, pp. 557-562, paras. 147-155;
CR 2006/2 (van den Biesen), p. 38, para. 31; CR 2006/4 (Karag iannakis), p. 15, para. 21; CR 2006/8 (van den Biesen),
pp. 40-42, paras. 7-11.
49
Reply, pp. 649-652, paras. 308-311; CR 2006/8 (van den Biesen), p. 42, para. 12 and pp. 44-47, paras. 19-30.
50See also: Memorial, pp. 85-93, paras. 2.3.8.1-2.3.8.6; Reply, Chap. 8, Sec. 8, pp. 646-650, paras. 304-307.

51See Memorial, pp.81-83, para.2.3. 7.1; Reply, p.807, para.127 a nd Chap. 8, Sec. 7, pp. 632-636,
paras.279-285; CR2006/2 (van den Biesen ), p. 41, para. 41 and pp.46-47, para s.61-66; CR2006/4 (Karagiannakis),

pp. 12-14, paras. 10-17; CR 2006/8 (van den Biesen), pp. 40-42, paras. 7-11 and pp. 54-55, paras. 60-64.
52See also General Assembly resolutions 46/242 of 25 August 1992 and 47/121 of 18 December 1992.

53See Memorial, p.31, para.2.2.2.15, p. 36, para. 2.2.2. 18, pp.48-49, para. 2.2.5.3, pp.52-53, para. 2.2.5.12,
p.35, para.2.2.5.7, p. 53, para. 2.2.5.14; Reply, pp .573-596, paras.166-205; CR2006/2 (van den Biesen), p.36,

para.23; CR2006/5 (Karagiannakis), p. 24, para. 12, pp. 31-32, paras. 35-37, p. 34, para. 43; CR 2006/8
(van den Biesen), pp. 50-52, paras. 37-47.
54
See Memorial, p. 35, para. 2.2.2.16; Reply, pp. 594-596, paras. 201-204; CR 2006/4 (van den Biesen), p. 39,
para. 11 and pp. 40-43, paras. 16-24.
55
See Memorial, Sec.2.3.4, pp.66-71; Reply, Chap .8, Sec.6, pp.474-478, paras.24-30 and pp.597-612,
paras.206-238; CR2006/2 (van den Biesen), pp.49-51, paras. 71-74; CR2006/4 (Karagiannakis), p. 13, paras.15-16;
CR 2006/4 (van den Biesen), p. 46, para. 36; CR 2006/8 (van den Biesen), p. 53, para. 53. - 33 -

11. But the FRY’s control over Republika Srps ka was not only military in nature. As

Mr.Torkildsen showed this morning, that pse udo-State was entirely dependent on the creation of

monetary instruments by the National Bank of Yugoslavia, to which the National Bank of

56
Republika Srpska, whose existence was purel y theoretical, was completely subordinate . I shall

confine myself to recalling the words of the mi nutes of the meeting in December1994 of the

Governors of the National Banks of Yugoslavia, Re publika Srpska and Republika Srpska Krajina:

“Unique control over the operation of the National Bank of Republika Srpska . . . is determined and

57
conducted exclusively by the National Bank of Yugoslavia.” The truth, as Miloševi ć proclaimed

in a statement to the Yugoslav News press agency on 11May1993, was that: “Serbia has lent a

great, great deal of assistance to the Serbs in Bosn ia. Owing to that assistance they have achieved

58
most of what they wanted.”

43 12. More generally, Belgrade provided unceasing impetus and political and ideological

direction during the preparations for and throughou t the entire “active” period of ethnic cleansing.

To cite but a few examples:

⎯ the policy of ethnic cleansing was decided during a meeting in Belgrade chaired by Miloševi ć

59
in July 1991 ;

⎯ it was at another meeting, again in Belgrade, on 30April1992 that it was agreed at the most

senior level, among the federal President, the President of the Republic of Serbia, the President

of the Republic of Montenegro, the JNA Chief of Staff, the President, Vice-President and

President of the Assembly of Republika Srpska, a nd the Serb member of the Presidency of the

FRY, that General Mladi ć should take over command of the army in Bosnia and

Herzegovina 60;

56
See Reply, Chap.8, Sec.9, pp.674-685, paras.346-368; CR2006/4 (Karagiannakis), pp.20-21, paras.41-45;
CR 2006/8 (van den Biesen), p. 49, para. 35.
57Official notice of the meeting of the Governors of th e National Bank of Yugoslavia, of the National Bank of

Republika Srpska and of the National Bank of Republika Srpska Krajina, 5 December 1994, quoted in the Reply, p. 680,
para. 358 and Ann. 226, p. 2.
58ICTY, Prosecutor v. Miloševi ć, case No.IT-02-54-T, Decision on Motion for Judgment of Acquittal,

16 June 2004, Exhibit No. C4721.
59See CR 2006/4 (Karagiannakis), p. 11, paras. 5-7.

60CR 2006/4 (van den Biesen), pp. 26-27, paras. 17-18. - 34 -

⎯ further, as seen in the minutes of a meeting of the Serb leaders in Serb ia, Krajina and Bosnia

and Herzegovina on 9January1993, which Mr.van den Biesen analysed on Friday, those

leaders, Karadžić in particular, were clearly anxious to protect the “mother country”; Karadžić

stated that, as agreed, “if we would be in a situation to endanger the position of the mother

61
country ⎯ Serbia and Montenegro[, w]e would cut our boat loose” ⎯ if you say that you are

prepared to cut a boat loose, then it must have been moored to begin with . . .; and

⎯ last but not least, Republika Srpska was re presented at the Dayton negotiations in 1995 ⎯

Luigi Condorelli referred to this a short time ago ⎯ by “President Slobodan Milošević, head of

the delegation of the Federal Repub lic of Yugoslavia”, which, by letters to the ministries of

foreign affairs of various countries, gave the assurance that the FRY “sh all take all necessary

steps . . . to ensure that the Republika Srpska fully respects and complies with the provisions of

62
the aforementioned Annexes [concerning it]” . What an avowal, Madam President!

44 13. It is hard to deduce from these manifold ties (of subordination) linking Republika Srpska

and its army with the FRY anything other th an a position of total dependence justifying the

63
characterization of these entities as organs of the Respondent . But if that is not the conclusion

you come to, Members of the Court, you should assuredly infer from this that, unlike the contras in

the Military and Paramilitary Activities case, both the VRS and Republika Srpska were under the

control of the Respondent ⎯ control which, in accordance with the rule codified in Article 8 of the

ILC Articles of 2001, gives rise to the Respondent’s responsibility for the conduct of those entities,

conduct in breach of the Genocide Convention. Radovan Karadžić’s statement at the 40th session

of the Assembly of Republika Srpska on 10 and 11May1994 also sounds like an admission:

“Without Serbia nothing would have happened, we don’t have the resources and would not have

been able to make war.” 64

61
CR 2006/8 (van den Biesen), p.58, para.78; testimony by Mr.Lili ć, ICTY, Prosecutor v. Milošević, case
No. IT-02-54, transcript of 17 June 2003, p. 2572.
6S/1995/999, 30 Nov. 1995, p. 131.

6See Military and Paramilitary Activities in and against Nicaragua (Nicarv. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 62, para. 109.

640th session of the Assembly of Republika Srpska, 10-11May1994, Br čo, ERNs 0215-2482-0215-2616,
Karadžić : 0215-2533. See also the report by R. Donia, expert, case No. IT-02-54-T, p. 62, transcript p. 23144. - 35 -

2. The Serbian paramilitary forces operating in Bosnia and Herzegovina

14. A consideration of the links between the Serbian paramilitary forces operating in Bosnia

and Herzegovina and the FRY leads to the same conclusions.

15. As LuigiCondorelli mentioned a short while ag o, they fall into two distinct categories.

Some, formed on the spot, were integrated into the VRS, the Serbian army of Bosnia and

Herzegovina; there is therefore no need to concern ourselves particularly about the nature of their

legal relationship with the Respondent: they were under the latter’s control, in the same way as the

VRS. The others were formed in the FRY and ca rried out their murderous duties in the territories

controlled by the Serbs of Bosnia and Herzegovi na, where they made a major contribution to

“cleansing” the resident non-Serb populations.

16. MagdaKagiannakis showed this morning the vital role played by these paramilitary

groups in the genocide committed against the Musl im populations of Bosnia and Herzegovina.

However, these “special forces” of evil memory, the “Scorpions”, Arkan’s “Tigers”, Šešelj’s

“Chetniks”, were subservient to Belgrade:

45 ⎯ they were formed and placed under the control of th e Serbian Ministry of the Interior by virtue

of legislation on domestic affairs and nationa l defence adopted by the Serbian national

65
parliament on 17 and 18 July 1991 ;

⎯ they were armed, equipped and trained by th e JNA and the MUP (Serbian Ministry of the

66
Interior) ; and

⎯ they acted in conjunction with the armed forces and official police force of the FRY and, on

such occasions, were placed under the orders of officers of those two forces 67.

17. The existence of these extremely clo se links was condemned by both the General

Assembly, in particular in resolutions 48/88 of 20 December 1993 and 49/10 of 3 November 1994,

and the Security Council, which demanded (in va in), in its resolution 819 (1993) of 16 April 1993,

65Official Gazette of the Republic of Serbia , 25 and 27 July 1991, Prosecutor v. Milošević, case No. IT-02-54-T,
Exhibit No. P352, tab 24 and Exhibit No. P526, tab 21, see also Reply, p. 616, para. 247.

66See Memorial, pp.67-68, para.2.3.4.2 and p.274, para . 6.4.2.1, p. 276, para. 6.4.2.5; Reply, pp.602-604,
paras. 218-221; pp. 615-625, paras. 246-264; pp. 632-636, paras. 279-285 or p. 78 4, paras. 68-69; CR 2006/2 (van den
Biesen), p. 49, para. 72.

67Memorial, p. 35, para. 2.2.2.16, p. 48, para. 2.2.5.3; Reply, pp.602-604, paras.218-221 or p.623, para.263;
see also pp.566-573, paras.265-278 or pp.784-785, paras.70-71; CR 2006/2 (van den Biesen), p. 49, para. 70,
CR 2006/9 (Karagiannakis). See also, in particular, ICTY, Prosecutor v. Karadžić and Mladić, case Nos. IT-95-5-R61
and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, para. 56. - 36 -

“that the Federal Republic of Yugoslavia (Serbia and Montenegro) immediately cease the supply of

military arms, equipment and services to the Bosnia n Serb paramilitary units in the Republic of

Bosnia and Herzegovina”.

18. There is no room for doubt, Madam Preside nt: the Serbian paramilitary forces were

certainly also under the control of the Respondent. And the comparison with the findings made by

the Court in the Nicaragua case is enlightening:

⎯ in that case, the armed bands opposed to the Sandi nista Government were formed, or had been

formed, independently of any intervention by th e United States and before the latter gave them

68
illegal aid ; in the instant case, the Serbian param ilitary forces were created with the active

support of the Belgrade Government;

46 ⎯ the contras were alone in participating in unlaw ful armed operations on the territory of

Nicaragua 6; the Serbian paramilitary forces acted in conjunction with and under the command

of the army or the police force of the Respondent on Bosnian territory;

⎯ in its 1986 Judgment, the Court stated that it w as not “satisfied that all the operations launched

by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised

70
by the United States” ; in the case which concerns us, it is the Belgrade Government which

instigated and carried out the ghastly et hnic cleansing, and the paramilitary forces ⎯ among

others ⎯ were merely executants.

19. Like Republika Srpska, like the VJ, the Se rbian paramilitary forces, at the time when the

genocide was perpetrated, were in reality only organs, auxiliaries of the respondent State. But here

again, even if you failed to accept that fact, Me mbers of the Court, there would be no escaping the

conclusion that they were nonetheless under the stri ct overall control of the Respondent, which is

enough to engage its responsibility.

68
See Military and Paramilitary Activities in and against Nicaragua (Nicarav. United States of America),
Merits, Judgment, I.C.J. Reports 1986, pp. 53-55, paras. 93-94 and pp. 61-62, para. 108.
69
Ibid., p. 60, para. 102.
70Ibid., p. 61, para. 106. - 37 -

3. The significance of overall control

20. That said, Madam President, I readily rec ognize that we have not demonstrated that each

and every one of the acts constituting genocide had been ordered in Belgrade ⎯ even though some

undeniably were, as in the case of the establishment of an exclusively Serb zone 50 km beyond the

Drina 71or the monstrous massacres of Srebrenica 7. Moreover, it would be impossible to prove, a

probatio diabolica. First, there were too many genocidal acts, too many murders, rapes, acts of

systematic ill-treatment, constituting serious offences against the physical or mental integrity of the

non-Serb populations of territories under Serb cont rol. Secondly, and above all, such proof ⎯ I

sincerely believe ⎯ should not be required in this case, given the very specific characteristics of

the crime of genocide.

47 21. Thus, since genocide is not an additional entry in a list of distinct violations of

international law, but an extremely serious breach of a peremptory norm of general international

law manifested in an ensemble or, in English, a “pattern” of behaviour [ un pattern or une pattern?

We French have gender problems that you don’t have in English . . .] contrary to international law

and motivated by a single intention, we cannot ⎯ and should not ⎯ focus on each of these

individual instances. By the same token, the subjective element of genocide, the mens rea, that is

to say the genocidal intent, can only be overarc hing in scope. And, at the same time, the

attributability of such acts and intent can also only be dependent on criteria of an overall scope.

22. It seems to me all the more futile to atte mpt to divide genocide into component parts in

order to engage in the attribution of a multiplic ity of acts since, in the present case, the ethnic

cleansing was a joint enterprise: conceived and in itiated in Belgrade, it was carried to fruition ⎯

“miscarried” would surely be more accurate ⎯ jointly by the FRY Government and its

surrogates ⎯ even if the Respondent does not like that word 73 ⎯ in Republika Srpska.

23. For all these reasons, Madam President, only one conclusion can be drawn: the

Respondent is responsible for the crime of genocide perpetrated against the non-Serb ⎯

particularly Muslim ⎯ populations of Bosnia and Herzegovina. As Professor Luigi Condorelli has

71
ICTY, Prosecutor v. Deronjić, interrogation of the accused, case No. IT-02-61-S, transcript of 27 January 2004,
p. 121.
72
See Reply, p. 583, para. 185 (newspap er article attesting to ordBelgrade in the attack on eastern
Bosnia), p. 595, para. 203 or CR 2006/4 (van den Biesen), p. 38, para. 9.
73See Counter-Memorial, p. 321, para. 5.1.14; see also Reply, p. 782, para. 61. - 38 -

shown, its responsibility derives from the rule set out in Article 4 of the ILC draft Articles, because

it acted through its organs: those indeed recognized as such by its internal law, but also those

which, while not defined as such, were so in r eality, as in the case of Republika Srpska and its

army, on the one hand, and th e Serbian paramilitary groups, on the other. However, its

responsibility would be engaged in equal measu re if you did not accept this interpretation,

Members of the Court, and if you relied not on the rule of attribution set forth in Article4 of the

ILC draft Articles, but on the rule contained in Ar ticle8. In substance, moreover, this makes no

material difference to the case.

48 II. The acts ancillary to genocide are attributable to the Respondent

24. Madam President, I shall now turn to the acts other than genocide as such, as listed in

Article III of the 1948 Convention, and I shall deal with them in the following order:

⎯ first, direct and public incitement to commit genocide;

⎯ secondly, conspiracy to commit genocide;

⎯ lastly, complicity in genocide.

25. One problem arises at the outset, however, which I touched upon only briefly in my

address on Friday, and that is how these different acts engendering responsibility combine with the

principal act, the one that is central to the subm issions of Bosnia and Herzegovina, the commission

of genocide itself. In reality, the contours of the problem differ in so far as they relate to

complicity, on the one hand, and incitement and conspiracy, on the other.

26. The latter two aspects clearly represent two separate counts of responsibility upstream

from genocide. That is quite obviously the case with regard to incitement, which may, it is true,

continue while the genocide is under way, in order ⎯ dare I say it ⎯ to “re-energize” the

perpetrators, but which may also ⎯ and this is more usually the case ⎯ precede the “taking of

action”. Moreover, the ICTR did not hesitate to make genocide, on the one hand, and incitement,

74
on the other, separate counts of indictment and conviction . The same is true of conspiracy, the

74
Cf. ICTR, Prosecutor v. Eliézer Niyitegeka , case No.ICTR-96-14-T, Judgement and Sentence, 16May2003,
para. 480. - 39 -

75
common plan to commit genocide, which, as I have already had occasion to mention , also

constitutes a separate charge, as is also shown by ICTR practice 76.

27. The same is not true of complicity: accord ing to the International Criminal Tribunal for

Rwanda: “an individual cannot thus be both the principal perpetrator of a particular act and the

accomplice thereto. An act of which an accused is charged cannot, therefore, be characterized as

77
both an act of genocide and an act of complicity in genocide.” Incidentally, this is again

consistent with the position taken by the Court itself in the Military Activities case (although,

78
49 curiously, it appears there to apply the same reasoning to incitement ⎯ but in any case, the

problem in that regard arises in a different form in the present case, since ArticleIII of the

Convention expressly distinguishes between incite ment, on the one hand, and complicity, on the

other).

28. These differences between the three differe nt categories of offence at issue obviously

have consequences with regard to the submissions of Bosnia and Herzegovina ⎯ which will,

moreover, be slightly amended on this point at the end of the hearings, as those contained in its

Reply are not altogether explicit on this subject 79 ⎯ whereas it is quite clear from Chapter10,

80
paragraph 181 , of the Reply that Bosnia and Herzegovina calls for a finding of Serbia’s

responsibility for complicity in genoc ide “only very subsidiarily”, in the unlikely event that the

Court were unable to find that the Respondent itself committed the genocide against the Muslims

and the other non-Serb populations of Bosnia and Herzegovina, either through its organs, or

through the acts of persons or groups of persons placed under its control.

29. If I may, Madam President, I shall begin with:

75
CR 2006/8, p. 25, para. 43.
76
Cf. ICTR, Prosecutor v. Kambanda , case No.ICTR 97-23-S, Judgement , 4 September 1998, para.40 or
Prosecutor v. Eliézer Niyitegeka, case No. ICTR-94-T, Judgement, 16 May 2003, para. 480.
77
ICTR, Prosecutor v. Alfred Musema , case No.ICTR-96-13, Trial Cham ber, Judgement and Sentence,
27 January 2000, para. 175.
7Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,

Judgment, I.C.J. Reports 1986, p. 64, para. 114.
7See Reply, p. 972, para. 7.2.

8Reply, pp. 828-829. - 40 -

1. Direct and public incitement to commit genocide

30. This is expressly dealt with in Article III (c) of the 1948 Convention, to which Article IX

moreover expressly refers. However, even if the Convention were silent, su ch an incitement to

commit an internationally wrongful act would still make the Respondent responsible: in the

Nicaragua case the Court observed that the United Stat es had, under the “general principles of

humanitarian law to which the [1949 Geneva] Conve ntions merely give specific expression”, “an

obligation not to encourage persons or groups en gaged in the conflict in Nicaragua to act in

81
violation” of those Conventions’ fundamental provisions . It follows that, since the Court has

jurisdiction to resolve “disputes between the Contrac ting Parties relating to the... application or

50
fulfilment” of the Convention, it would have ju risdiction, even in th e absence of any specific

provision, to find Serbia and Montenegro responsible under this head.

31. As I explained on Friday, it is not to be expected in today’s world that a State would

openly call for the elimination ⎯ even partial ⎯ of a human group. This is indeed how the

jurisprudence interprets ArticleIII (c) of the Convention, including when individuals are

involved 82: it is accepted that the call may be “coded” , but fully comprehensible in the cultural

context in which the incitement is made.

32. Two aspects should be stressed in this conn ection. Firstly, the authorities in Belgrade

who, as we have noted on several occasions, were anxious to secure a measure of international

respectability83 ⎯ however unworthy of respect they may have been at the time ⎯ must be

regarded as having incited genocide by spreading th e ideology of a Greater Serbia and calling for

the creation of a “State for all Serbs”, where they would be “together”, without having to cohabit

with non-Serb and non-Orthodox ethnic groups. Secondly, the authorities of Republika Srpska

quite openly called for a policy of terror to be applied against these populations, more especially

Muslims, in the territory that they controlled, in order to ensure the “ethnic purity” of these areas,

and hence to destroy those populations there as a group. In so doing, whether as organs of the FRY

81
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 114, para. 220.
82
CR 2206/8, pp. 23-24, paras. 39-41.
8See Memorial, pp. 85-93, Sec. 2.3.8; see also CR 2006/2 (van den Biesen), pp. 46-47, paras. 62-64 or
CR 2006/8 (van den Biesen), p. 57, para. 72 and pp. 59-60, para. 82. - 41 -

or as an entity placed under its control, these au thorities engaged the responsibility of the FRY.

These two aspects are in fact indissociable.

33. My friend and colleague, Maître van den Biesen, showed a week ago that the genocide

had been prepared through dissemination of the id eology of a “Greater Serbia” and the correlated

campaign against non-Serb populations in the former Yugoslavia . One of the instruments of this

ultranationalist propaganda was the 1986 Memo randum of the Serbian Academy of Arts and

Sciences 85. It stressed the threats looming over the Serbs and the separation among several States

from which they suffered, and called for revenge ag ainst “the physical, political, legal and cultural

genocide of the Serbian population in Kosovo and Metohija”, which was pr esented as “a worse
51

defeat than any experienced in the liberation wars waged by Serbia from the First Serbian Uprising

86
in 1804 to the uprising of 1941” .

34. Madam President, this rhetoric of hate was perfectly described by the ICTY Trial

Chamber in the Tadić Judgement of 7 May 1997. It is useful to cite some excerpts, but I venture to

ask you, Madam President, Members of the Court, to reread all the relevant passages: they

establish by rigorous reasoning the link between propa gation of the ideology of a Greater Serbia

and the policy of ethnic cleansing; these passages (in particular paragraphs85 to 96 of the

87
Judgement) are reproduced in Bosnia and Herzegovina’s Reply . Nevertheless I will read the most

revealing passages, even if this takes some time:

“88. The propaganda campaign [in support of a Greater Serbia] that
accompanied this movement began as early as 1989, with the celebration of the

600thanniversary of the Battle of Ko sovo. During this celebration, the
Serb-controlled media declared that Serbs had been let down by others in the area
when the Ottoman Turks invaded... The danger of a ‘fundamentalist, politicised’
Muslim community was also represented as a threat. After the disintegration of the

former Yugoslavia began, the theme of the Serb-dominated media was that ‘if for any
one reason Serbs would become a minority population . . . their whole existence could
be very perilous and endangered . . . and therefore they had no choice but a full-scale

war against everyone else, or to be subjected to the old type concentration camp, the
symbol being Jasenovac’.

89. In the early 1990s there were rallie s that advocated and promoted the idea,
with Serbian leaders in attendance. In 1992 Radoslav Brdanin, President of the Crisis

8CR 2006/2 pp. 28-32. See also Memorial, pp. 59-61, Sec. 2.3.1 and Reply, pp. 55-68, Chap. 4, Sec. 1.

8Counter-Memorial, Ann. 92. See Memorial, pp. 60-61, paras. 2.3.1.3-2.3.1.4 and Reply, pp. 56-58, para. 5.
86
Ibid., p. 128.
8Pp. 65-68, para. 15. - 42 -

Staff of the Serb Autonomous Region of the Banja Luka area, declared that 2 per cent
was the upper tolerable limit on the presence of all non-Serbs in this region.

RadoslavBrdanin advocated three stages of ridding the area of non-Serbs:
(1)creating impossible conditions that would have the effect of encouraging them to
leave of their own accord, involving pressure and terror tactics; (2)deportation and

banishment; and (3)liquidating those remaining who would not fit into his concept
for the region.

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

91. Over time, the propaganda escalated in intensity and began repeatedly to
accuse non-Serbs of being extremists plotting genocide against the Serbs. Periodicals
from Belgrade featured stories on the remo te history of Serbs intended to inspire

nationalistic feelings. Slobodan Kuruzovic, Commander of the Territorial Defence
52 (‘TO’) of Prijedor, who became the head of the local newspaper Kozarski Vjesnik and
the commander of the Trnopolje camp, stated that the ‘interests of Serbian people in
Republika Srpska will be the main guidelines fo r my editorial policies’. In articles,

announcements, television programmes and public proclamations, Serbs were told that
they needed to protect themselves from a f undamentalist Muslim threat and must arm
themselves and that the Croats and Muslims were preparing a plan of genocide against

them. Broadcasts from Belgrade caused f ear among non-Serbs because only the Serb
nation was presented positively, and it was represented that the JNA supported the
Serbs. The theme that, for the Serbs, the Second World War had not ended was
expressed on television and radio by Vojisla v Seselj, Zeljko Raznjatovic, otherwise

known as ‘Arkan’, and other Serb politicians and leaders.

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

88
94. This propaganda campaign continued on into 1993 . . .”

35. You will have noted, Madam President, that the Tribunal’s analysis makes no distinction

between propaganda coming from Belgrade and the ove rt calls for genocide by Serb officials in

Bosnia and Herzegovina. And rightly so: ethnic cleansing by the planned genocide of non-Serbs

(and of Muslims in particular) is an overall plan in which any distinction between those involved is

impossible. The language of the leaders in Belgra de is more coded, that of their henchmen in

Bosnia and Herzegovina is more blunt, but the meaning is essentially the same.

36. Since its Tadić Judgement the ICTY has had occasion to confirm and amplify its

analysis. In its Brdjanin Judgement of 1September2004 ⎯ which I propose to cite at some

length, still in English because, as I have already observed, unfortunately this decision is still not

available in French ⎯ the Tribunal carefully analysed the “Six strategic goals” articulated by

88
ICTY, case No. IT-94-1-T, Trial Chamber, Judgement, 7 May 1997, pp. 30-35. - 43 -

Karadzic at the Assembly of Serbs of Bosnia , of which we have already spoken at length 89. It

analyses the content thus:

“77. The Trial Chamber is satisfied beyond reasonable doubt that the first
strategic goal entailed the permanent removal of a significant part of the non-Serb
population from the territory of the planned Bosnian Serbian state. When the policy
discussions at the 16th session of the SerBiH Assembly on the movement of

population are seen in connection with the inflammatory, combative and derogatory
comments towards the non-Serb population of Bosnia and Herzegovina made during
that same session, it becomes evident that non-Serbs were viewed as a constant threat

and that significant numbers of them were to be permanently removed from the
53 territory claimed by the Bosnian Serbs. A comment by Dragan Kalinic, a delegate
from Sarajevo and later SerBiH Health Minister, is of note:

‘Have we chosen the option of war or the option of negotiation? I
say this with a reason, and I must add that, knowing who our enemies are,
how perfidious they are, how they cannot be trusted until they are

physically, militarily destroyed and crushed, which of course implies
eliminating and liquidating their key people.’

78. The 16th session of the SerBiH Assembly represents the culmination of a
political process. At this session, not only were the strategic goals of the Serbian
people of Bosnia and Herzegovina articulated, but the SerBiH Assembly also took a

fundamental step towards the implementation of these goals . . .

79. The Trial Chamber is convinced that the six strategic goals of the Serbian
People of Bosnia and Herzegovina articulated at the 16th session of the SerBiH

Assembly were far from political rhetoric. They constituted the political manifesto of
the Bosnian Serb leadership and turned out to be the driving factor behind the actions
of the Bosnian Serb armed forces, shaping the events in BiH from May1992
90
onwards.”

37. Extending its analysis to the Serb propaganda as a whole, the Tribunal adds:

“80. Prior to the outbreak of the ar med conflict, the SDS started waging a
propaganda war which had a disastrous impact on the people of all ethnicities, creating
mutual fear and hatred and particularly inciting the Bosnian Serb population against

the other ethnicities. Within a short period of time, citizens who had previously lived
together peacefully became enemies and ma ny of them, in the present case mainly
Bosnian Serbs, became killers, influenced by a media, which by that time, was already

under the control of the Bosnian Serb lead ership. The use of propaganda was an
integral part of the implementation of the Strategic Plan and created a climate where
people were prepared to tolerate the commission of crimes and to commit crimes.” 91

8Sixteenth Session of the Assembly of Serbs of Bo snia, 12 May 1992, ERNs 0190-8511-0190-8514, Karadzic,
0190-8517-0190-8526. See CR 2006/4 (Karagiannakis), pp. 18-20,paras. 36-40; CR 2006/5 (Karagiannakis), p. 24,
para. 10; CR 2006/5 (Dauban), p. 55, para. 33.
90
ICTY, Prosecutor v. Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, paras. 75-79.
9Ibid., para. 80; see also in particular paragraphs 82 and 83. - 44 -

38. The same scenario recurred in the north and east of Bosnia and Herzegovina. All this, of

course, is duly supported by solid evidence referred to by the wealth of f ootnotes that pepper the

Tribunal’s Judgement ⎯ like most of its decisions.

39. The role of the authorities of the FRY in these incitements to ethnic hatred and genocide

is crucial, as the ICTY again clearly stated in its decision on the motion for judgment of acquittal of

Milosevic of 16June2004, in which it stressed the control over the media exercised by the

President of the Republic of Serbia, the “Leader of all the Serbs”:

54 “255. The Accused [that is Milosevic] manipulated the Serbian media to impose
nationalist propaganda in order to justify the creation of a Serbian State. The Accused

kept the Serbian press under tight surveilla nce, with independent media channels
given less than one-tenth of the national media space in the interest of foreign policy.
GeneralMorillon believed that the Accused was responsible for sowing fear of past

atrocities in the Yugoslav population, thereby unleashing ‘dogs’ which escaped his
control and contributed to the tragic events.

“256. Mr. Jovic testified that

‘for more than a decade, the Accused was the main political figure in
Serbia. He held absolute authority within the people and within the party,

and he had the possibility of having a decisive role on all decisions made.
And by the same token, he was in a way the main actor of everything that
came to pass during that period of time.’

Mr. Jovic gave evidence that ‘[t]his period of our history was marked, without any
doubt, by the Accused. In every sense, he was the key figure, the main actor in this
Serbian tragedy . . .’. Professor de la Bro sse gave evidence that Mr. Jovic, in his book

entitled Last Days of the SFRY, stated,

‘For years, [the Accused] paid th e biggest attention to the media,
especially television. He personally appointed editors-in-chief of the

newspapers and news programmes, es pecially directors-general of the
radio and television... He was deeply convinced that citizens formed
their view of the political situation on the basis of what they were

presented and not on the basis of their real material and political position.
What is not published has not happened at all ⎯ that was [Milosevic’s]
motto.’” 92

40. On the ground ⎯ i.e. in the regions of Bosnia and Herzegovina controlled by the

Serbs ⎯ these diatribes against those “dark for ces” “that are destroying both Serbia and

93 94
Yugoslavia” were passed on even more bluntly by the Bosnian Serbs . The now notorious

92
ICTY, Prosecutor v. Milosevic, case No. IT-02-54-T, 16 June 2004, paras. 255-256. See Prosecutor v.
Tadic, case No. IT-94-1-T, Judgement, 7 May 1997, para. 130.
9Speech by Milosevic on Belgrade Radio, 2 p.m., 10 December 1991, BBC Summary of World Broadcasts ,
12 December 1991, Reply, Ann. 12 [translation by the Registry]. - 45 -

statement by Radovan Karadzic when he addressed the Bosnian parliament for the last time on

14 October 1991 is the most perfect example of this:

“You want to take Bosnia and Herze govina down the same highway of hell and

suffering that Slovenia and Croatia are travelli ng. Do nothing that will lead Bosnia to
hell and do nothing that may lead the Mus lim people to their annihilation because the
Muslim cannot defend themselves if there is war. How will you prevent everyone
95
from being killed in Bosnia?”

55 41. It seems clear, Madam President, that the organs of the Respondent are responsible for

very direct and very public incitement to comm it genocide. The same applies to intent, which I

come to now.

2. Intent to commit genocide

96
42. As I said last Friday , the issue here is whether ⎯ irrespective of the close links that

united the perpetrators of the genocide, links so close that some: Republika Srpska, its army and its

police, and the paramilitary forces let loose in Bosnia and Herzegovina, must be regarded as organs

of the other, the FRY, or at least as acting under its control ⎯ whether, irrespective of those links,

they had a “common plan” to commit genocide. I st ress that this specific violation of the 1948

Convention is established even if the plan ⎯ as is the case here ⎯ was devised by one of the

protagonists alone, with the others supporting it by word or by deed 97.

43. It goes without saying that the link between committing genocide and conspiracy to

commit is a close one. As the ICTY Appeals Chamber observed in the Jelisic case:

“the existence of a plan or policy is not a le gal ingredient of the crime. However, in

the context of proving specific intent, the existence of a plan or policy may become an
important factor in most cases. The eviden ce may be consistent with the existence of

a plan or policy, or may even show such 98 existence, and the existence of a plan or
policy may facilitate proof of the crime.”

94
See, for example, statements by Karadzic and Mladic c ited in the Reply, pp. 59-60, para. 7, or those by JNA
officers, ibid., p. 61, para. 9.
9ICTY, Prosecutor v. Karadzic and Mladic , cases Nos.IT-95-5-R61 and IT-95-18-R61, Review of the

Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, p. 24, para. 48.
9CR 2006/8, pp. 24-26, paras. 42-44.

9See ibid., p. 26, para. 44.
98
ICTY, Prosecutor v. Jelisic , case No. IT-95-10, Judgement, 5 Ju ly 2001, para. 48. See also ICTR,
Prosecutor v. Obed Ruzindana and Clément Kayishema , case No. ICTR-95-1-A, App eals Chamber, Disposition,
1 June 2001. - 46 -

44. The conspiracy among the Serb leaders of the FRY, Bosnia and Herzegovina and Croatia

was doubtless defined most accurately and succinctly in the factual basis underlying the guilty plea

of Mrs.Plavši ć, former co-President of Republika Srpska, cited by MaîtrevandenBiesen in his

presentation last Monday ⎯ my citation is again in English:

“13. Numerous individuals participated in devising and executing the objective

of ethnic separation by force, includ ing SlobodanMilosevic, RadovanKaradzic,
Momcilo Krajisnik and Ratko Mladic. Among these individuals there were
differences as to both their knowledge of the details concerning the conception and

56 implementation of this objective and th eir participation in conceiving and
implementing its execution . . .

14. Certain members of the Bosnian Serb leadership collaborated closely with
SlobodanMilosevic in the conception and execution of the objective of ethnic
separation by force. The two princi pal leaders of the Bosnian Serbs,

RadovanKaradzic and Momcilo Krajisnik frequently came to Belgrade to consult
with, take guidance from or arrange for suppor t from Milosevic in achieving this end.
The army of Republika Srpska (VRS) was fina nced and logistically supported by the

political and military leadership in Belgrade, with whom it collaborated and
cooperated in order to execute the objective of ethnic separation by force.” 100

45. To be sure, Mrs. Plavši ć mentions individuals here, but these are the Presidents of their

respective entities: Serbia, the federal State of the FRY, Republika Srpska and Republika Srpska

Krajina. This is the basis on which they consulted and conspired with each other.

46. Such consultation and conspiracy were continuous before and throughout the period of

“ethnic cleansing”. In March 1991, at a secret meet ing in Karadjordjevo, Milosevic and Tudjman,

the President of Croatia, reached agreement on a division of Bosnia and Herzegovina on ethnic

principles, which would find expression in May the following year in the six “strategic goals” to

which I referred just now and which confirm that the operations were meticulously planned 10. The

102
important meeting involving Milosevic, Babic and Karadzic, already described to this Court , had

taken place previously, in July 1991; during that meeting Milosevic told Mr. Babic, the President

of Republika Srpska Krajina, not to “stand in Radovan’s way” 10. Moreover, as the ICTY

observed, “by the fall of 1991, the SDS was in contact with the federal authorities dominated by the

99CR 2006/2 (van den Biesen), p. 33, para. 14.
100
ICTY, case Nos. IT-00-39 and 40-PT, 30 September 2002, paras. 13-14.
10On this point, see CR 2006/4 (Karagiannakis), pp. 18-2paras. 36-40, and the numerous references to the

Milosevic and Brdjanin cases.
10CR 2006/4 (Karagiannakis), p. 11, paras. 5-7.

10On all these facts, see inter alia ICTY, Prosecutor v. Milosevic, case No. IT-02-54-T, Decision on Motion for
Judgement of Acquittal, 16 June 2004, paras. 252-254. - 47 -

Republic of Serbia and the Yugoslav People’s Ar my (JNA). By arming the Serb population and

organizing a more direct JNA intervention, the contacts permitted the SDS to take power in the

territory of Bosnia and Herzegovina” 10.

57 47. As the Criminal Tribunal found in the Brdjanin Judgement: “Throughout 1991 and into

1992, the Bosnian Serb leadership communicated wi th the SFRY leadership on strategic policy in

105
the event that BiH would become independent.” And the constant contacts between

Slobodan Milosevic and Radovan Karadzic, evidenced inter alia by the intercepted telephone calls

used at the former’s trial 106, confirm the conspiracy between the FRY and Republika Srpska 107.

48. But that conspiracy went further. The existence of the “Council for Co-ordinating

Positions on State Policy” is a striking illustration of the common plan involving all the elements of

the Serb “leadership”. This is the Counc il on which MaîtrevandenBiesen addressed you on

108
Friday, concerning discussion of the Vance-Own plan on 9January1993 . This Council, which

appears to have been created during 1992 and met seven times in 1992 and 1993 10, consisted,

under the auspices of the President of the FRY, of the Presidents of Serbia and Montenegro, the

leaders of Republika Srpska and Republika Srpska Kr ajina, the chief of staff of the Yugoslav army

and Republika Srpska’s army commander, specifically Mladic. We do not have all the minutes of

the meetings of this Council, but those we do have speak volumes: what we have here is a

conspiracy for the successful achievement of “ethnic cleansing”, which in our case is no more than

a barely concealed euphemism for genocide.

49. In its decision of 16June2004 on the motion for Milosevic’s acquittal, the Trial

Chamber accepted that:

10ICTY, Prosecutor v. Karadzic and Mladic, cases Nos. IT-95-5-R61 and IT-95-18-R61, Trial Chamber, Review

of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, pp. 31-32, para. 55.
10ICTY, Prosecutor v. Brdjanin , case No. IT-99-36-T, Trial Chambe r II, Judgement, 1 September 2004,
para. 151.

10ICTY, Prosecutor v. Milosevic, case No. IT-02-54, document No. P613.

10See also Reply, p. 475, para. 25; pp. 478-482, pa ras. 31-36 or pp. 765-767, paras. 12-18; CR 2006/4
(Karagiannakis), “Political and military preparations”, pp. 10 et seq.

10CR 2006/8 (van den Biesen), pp. 55-60, paras. 65-83; see the minutes made public in the course of the
Krajisnik trial, case Nos. IT-00-39 and 40- PT, doc. No. P65, index 219 and th e testimony of Mr.Lilic in the Milosevic
trial, case No. IT-02-54-T, 17 June 2003, CR, pp. 22574-22579.

10Testimony of Mr. Lilic, ibid., p. 22577. - 48 -

“a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint
58
criminal enterprise, which included members of the Bosnian Serb leadership , whose
aim and intention was to destroy a part of the Bosnian Muslim population, and that
genocide was in fact committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina,
110
Kljuc and Bosanski Novi” .

And the Chamber concluded that:

“a Trial Chamber could be satisfied beyond reasonable doubt that the Accused [that is
Milosevic, the President of Serbia] was a par ticipant in the joint criminal enterprise,
found by the Trial Chamber... to include the Bosnian Serb leadership, and that he

shared with its participants the aim and in tention to destroy a part of the Bosnian
Muslims as a group” 11.

50. Admittedly, Members of the Court, you are not bound by the legal findings of our

neighbouring Tribunal, but in the light of the factual evidence that it has gathered and authenticated

and of that which we have also sought to present to you, it seems difficult, to say the least, not to

consider that the Respondent should be held internationally responsible for breach of its duty not to

conspire to commit genocide.

Complicity in genocide

51. I now come, Madam President, to the third a nd last of the “acts” listed in ArticleIII of

the 1948 Convention that are relevant in the present case: “complicity in genocide”, referred to in

subparagraph (e) of that Article.

51. As I have already said, but I repeat it: we rely on this merely as a subsidiary point, as a

fall-back position should you not be persuaded, Members of the Court, that the FRY was the

principal author of the genocide, a point on wh ich Bosnia and Herzegovina, for its part, has no

doubt whatever.

53. Moreover, the difference between the two types of responsibility should not be

exaggerated. Firstly, although complicity is some times described as “seconda ry participation”, as

one author has pointed out: “when applied to ge nocide there is nothing ‘secondary’ about it. The

112
‘accomplice’ is often the real villain, and the ‘p rincipal offender’ a small cog in the machine.”

This is also the opinion of the ICTY Appeals Chamber, which stated in the Tadić case:

11Case No. IT-02-54-T, para. 246; emphasis added.
111
Ibid., para. 288.
11William A. Schabas, Genocide in International Law, Cambridge UP, 2000, p. 286. - 49 -

“Although only some members of the group may physically perpetrate the
criminal act . . . the participation and contribution of the other members of the group is

often vital in facilitating the commission of the offence in question. It follows that the
moral gravity of such participation is often no less ⎯ or indeed no different ⎯ from
that of those actually carrying out the acts in question.”113

59 54. Secondly, the rules of international res ponsibility are the same: these are two distinct

internationally wrongful acts, but which must nevertheless be established according to the same

pattern and which have the same consequences.

55. Lastly, the facts that might make it possible for you, Madam President, Members of the

Court, to establish the complicity of the Respondent in genocide are the same as those that Bosnia

and Herzegovina has put before you in its written pleadings and throughout the oral pleadings.

56. There can be no doubt that genocide wa s committed in Serb-controlled areas against

non-Serb populations in Bosnia and Herzegovina, especially against Muslims. My colleagues

established this at length last week. Neither can there be any doubt that Serbia and Montenegro,

under the name of the FRY, took part in it. Anythi ng further is a matter of assessment and degree.

Given the impetus supplied by the authorities in Belg rade, their constant and total control over the

authorities in Pale, the massive involvement of th e JNA and subsequently the VJ and the Yugoslav

police in ethnic cleansing in Bosnia and Herzegovi na, it seems very difficult not to see the FRY as

the principal author of the genocide. Bu t the minimum alternative is to consider ⎯ or would be to

consider ⎯ that it was no more than an accomplice: I re peat, it participated in genocide as a State,

on a massive scale, intentionally and with full knowledge of what was happening.

57. This explains, Madam President, why, in c ontrast to what I did in the case of incitement

and conspiracy, which are “cumulative” violations of the Convention in the sense that they involve

the responsibility of their authors independently of their participation in genocide, I will not repeat

the relevant facts here: they are the same as t hose that enabled Professor Condorelli to show that

the Respondent’s responsibility was engaged by the act s of its organs, or enabled me to show that

this was so ⎯ and this is an alternative position ⎯ because the FRY controlled the activities of its

loyal henchmen in Bosnia and Herzegovina.

58. However, there is one point on which clarification seems to me to be required. It seems

to me that we have demonstrated, beyond all doubt, that the Yugoslav authorities were animated by

113
Case No. IT-94-1-A, Judgement, 15 July 1999, para. 191. - 50 -

114
a genocidal intent . As I said on Friday, this intent (mens rea) is doubtless essential before we

60 can speak of “complicity in genocide” within the meaning of Article III (e) of the

115
1948 Convention . But even if we had not convinced you on this point, Members of the Court,

you would still have to consider that the Respondent had become an accomplice to genocide

116
because it helped the Serbs of Bosnia and Herzegovina in so many ways to commit that crime .

59. Here again we return to the Nicaragua case, in which the Court decided that the United

States, while not responsible for the acts of the contras, was responsible for the various forms of

117
assistance provided to them . The least that can be said is that this diversified and crucial aid is

also a factor in our case; the FRY:

⎯ fully armed, equipped and supplied the army of Republika Srpska, the VRS;

⎯ supported that puppet State on a massive scale, financially and economically;

⎯ participated in ethnic cleansing operations, through its own armed forces and its police;

⎯ created or incited the creation of Serb param ilitary groups, trained and commanded by its own

military and police, which supported these operations with exceptional brutality.

60. Repeated condemnations by organs of th e United Nations testify to the international

community’s conviction as to the existence and ex tent of Belgrade’s c ontinuing support for the

Serbs of Bosnia. These are but two examples (among many others):

⎯ on 16 April 1993 the Security Council “[d]emand[ ed] that the Federal Republic of Yugoslavia

(Serbia and Montenegro) immediately cease the supply of military arms, equipment and

services to the Bosnian Serb paramilitary units in the Republic of Bosnia and Herzegovina” 118;

⎯ for its part the General Assembly, which had already condemned “the direct and indirect

support of the Yugoslav People’s Army for the a ggressive acts in the Republic of Bosnia and

61 Herzegovina” 119, repeated this condemnation in its resolution 48/88 of 20December1993,

114See Memorial, pp. 218-231, Sec. 5.3; Reply, pp. 348-373, Chap. 6, paras. 1-63 or CR 2006/6 (Franck),
pp. 29-34, paras. 8-20.

115See CR 2006/8. p. 27, para. 48.
116
Ibid., p. 28, para. 49.2.
117
See Military and Paramilitary Activities in and against Nicaragua (Nicaragv. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 63, para. 110, p. 65, para. 116, or p. 146, para. 292.3.
118S/RES/819 (1993); see also S/RES/820 (1993), 17 April 1993 or S/RES/838 (1993), 10 June 1993.

119A/RES/47/121. - 51 -

demanding that “the Federal Republic of Yugos lavia (Serbia and Montenegro) immediately

cease the supply of military arms, equipment and services to Bosnian Serb paramilitary units”.

61. All this, Madam President, amounts at the very least to complicity, and to complicity on

a very large scale. And if, by some remote chance, the Court were to consider that this massive aid

was given without the mens rea specific to genocide, it is at least completely impossible to believe

that the FRY did not know that it was being used to commit genocide.

62. I must now recapitulate. Madam President, Members of the Court, we have submitted to

you all of the conceivable legal outcomes:

⎯ you might consider that the Respondent became an accomplice to genocide because it supplied

the Serbs of Bosnia and Herzegovina with a w hole range of aid on a massive scale, without

sharing their goal of destroying, in whole or in part, non-Serb ethnic groups, and in particular

Muslims, in areas controlled by them; this mini mal hypothesis seems to us to be anything but

credible;

⎯ you might also take the view that Serbia and Montenegro (the FRY at the time) was an

accomplice in genocide on account of that same aid, gi ven not only in full knowledge of the

facts, but also in sharing the goal of eradica tion of any non-Serb presence in the territory of

Republika Srpska; that was certainly so, but this second hypothesis is based on a serious

underestimate of the directing role in the genocide of the authorities in Belgrade;

⎯ you might also hold the Respondent responsible for genocide committed by its entities acting

on its instructions or its direction or under its c ontrol; this also is correct but misrepresents the

true factual and legal position: first, organs defined as such by the law of the FRY themselves

took part in acts constituting genocide committed in Bosnia and Herzegovina directly, actively

and on a massive scale; secondly, this approach underplays the closeness of the links between

62 the Serbian and Montenegrin authorities and the puppet authorities that held sway in the

regions controlled by the Serbs;

⎯ that is why, Madam President, it seems to us that the only reasonable conclusion that can be

drawn from the facts submitted by us is to cons ider that these entities were totally dependent

upon the FRY and should be treated as organs of government of the latter; it was in that - 52 -

capacity that, together with its official organs , they committed the genocide attributable to the

Respondent and which engages its responsibility.

63. If you please, Madam President, I will take the floor again tomorrow to spell out the

consequences of this finding, after Professo r Condorelli has completed our presentation on the

violations of the 1948 Convention committed by the Respondent and has shown that it has in fact

acknowledged its responsibility. Thank you, Madam le président.

The PRESIDENT: Thank you, Professor Pellet. The Court will now rise and will resume at

10 o’clock tomorrow morning.

The Court rose at 5.55 p.m.

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