Translation

BHY

CR 2006/19 (translation)

CR 2006/19 (traduction)

Wednesday 15 March 2006 at 10 a.m.

Mercredi 15 mars 2006 à 10 heures - 2 -

10 The PRESIDENT: Please be seated. Maître de Roux, you have the floor.

Mr.de ROUX: Thank you, Madam President, Members of the Court, yesterday we started

examining the forms that the crime of genocid e may take, and I am going to continue my

presentation on this point. I will then tackle the questions raised by Article III of the Convention,

i.e., the examination of punishable acts, and I will finally conclude on the central issue of genocidal

intent.

G ENOCIDE
(CONTINUED )

(iii) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part (continued)

145. The conditions, inhumane as they certainly were, to which people were exposed in the

enclaves, in particular the Srebrenica and Sara jevo enclaves, have been largely described and

adjudicated upon in proceedings before the Tribun al for the former Yugoslavia. The Applicant’s

contention that between 20 and 30 people we re dying of hunger every day in Srebrenica

(Memorial, para. 2.2.2.6) is obviously without foun dation. It has never been advanced in any case

in which the Tribunal has addressed events in Sr ebrenica, and I would remind you that there have

been six cases that have considered what took place in Srebrenica. In addition, if that were true ⎯

and forgive me, as yesterday, for this ghoulish arithmetic ⎯ it would mean that 9,000 persons

would have died of hunger in Srebrenica in one year alone. I told you yesterday that the town of

Srebrenica itself had 6,000 inhabitants.

146. As regards the safe areas actually proclaimed by the Security Council, and to which the

Applicant refers in its Reply (Chap. 5, para. 174), admittedly these should not have been exposed to

armed attack. At the same time, however, they sh ould have been completely disarmed in order to

be completely protected. We know very well –– we spoke of it yesterday –– that these areas were

never disarmed during the conflict and were used as bases for, inter alia, the Bosnian army and the

28th Division of the army of Bosnia and Herzegovina, which had its headquarters in Srebrenica.

147. In the case concerning Colonel Blagojevic, who has been convicted, the Tribunal for the

former Yugoslavia stated: - 3 -

11 “It is not disputed that the Srebreni ca enclave was never fully demilitarised and
that elements of the ABiH [Army of Bo snia and Herzegovina] continued to conduct
raids of neighbouring Bosnian Serb villa ges from within the enclave. The 8th

Operational Group of the AbiH [Army of Bo snia and Herzegovina], later renamed the
28th Division of the AbiH [Army of Bo snia and Herzegovina], operated in the
enclave.” 1

This was confirmed by ⎯ it might be said ⎯ a specialist, General Enver Hadzihasanovic, who was

Chief of Staff of the army of Bosnia and He rzegovina when he gave evidence in the case

2
concerning General Krstic . Moreover, General Sefer Halilovic, another general in the army of

Bosnia and Herzegovina, stated in his testimony in the same case that weapons were sent to

Srebrenica by helicopter and that instructions were given to the military to disregard the obligation

to disarm 3.

148. It is common knowledge that the same was true of the other “safe areas”. It is also

common knowledge that although, in attacking Sreb renica, Republika Srpska did not abide by the

terms of the safe areas agreement and the Security Council resolutions, the same applies equally to

Bosnia and Herzegovina. It is probably because Bosnia and Herzegovina had never demilitarized

Srebrenica that the international community react ed as it did when the town was attacked in

July 1995.

149. Furthermore, is it really conceivable that the safe areas should be treated as such when

it was known very well that they were not disarmed, that they harboured large military units, not

just territorial defence forces? For example, General Hadzihasanovic admitted in his testimony that

the strength of the 28th Division, the famous Srebrenica 28th Division, was ⎯ and he was quite

precise ⎯ 5,803 4.

150. The situation was the same in all of the to wns proclaimed safe areas. In Sarajevo, the

Bosnian army deployed 45,000 troops in the city. This was stated by General Karavelic, the deputy

12 commander of the 1st Bosnian army corps covering the Sarajevo area, in his testimony before the

Tribunal in the Sarajevo case 5. All this was described by another “specialist” and witness of these

1ICTY, Prosecutor v. Vidoje Blagojevic , case No. IT-02-60-T, Trial Cham ber, Judgement, 17January2005,
para. 115.

2Transcript of Prosecutor v. Radislav Krstic, case No. IT-98-33-T, 5 April 2001, p. 9509.
3
Id., p. 9469.
4
Id., p. 9514.
5Transcript of Prosecutor v. Stanislav Galic, case No. IT-98-29, 19 July 2002, p. 12026. - 4 -

tragic events, General Sir Michael Rose, in his book Fighting for Peace: “My staff also suspected

that the Bosnian army deliberately fired into the air on occasion to increase the tension in and

around Sarajevo and to re-establish in the minds of the people around the world the images of war

6
which has been proved so politically expedient in the past.”

151. In the same case several witnesses declared that certain troops in the army of Bosnia

7
and Herzegovina were wearing civilian clothes , the army of Bosnia and Herzegovina was using

civilian buildings for its bases and positioni ng its tanks and artillery in public places 8. This is

further confirmed in the same work by Sir Michael Rose, who confirms that military equipment of

the army of Bosnia and Herzegovina was installed in the vicinity of civilians; he describes a scene

that he witnessed:

“The Serbs whom we could clearly s ee in their trenches in the pine-covered
forest behind us had beaten off the Bosnian Army attack. By then they were using

their own artillery and mortars to fire at Bosnian mortars one of which had been
established in the grounds of Kosovo hospital a tactic already observed and protested
about by my predecessor General Francis Briquemont. The Bosnians had evidently

chosen this location with the intention of attracting Serb fire, in the hope that the
resulting carnage would further tilt international support in their favour.” 9

152. According to Colonel David Fraser, an UNPROFOR representative in Bosnia and

Herzegovina, who also testified in the Sarajevo ca se, this situation was a real nightmare for the

10
military . General Francis Briquemont, mentioned in Sir Michael Rose’s book, who testified in

this case, also stated that: “[when] two parties are waging war [in the city ] and both are using

11
13 artillery and mortar, I think that it is impossibl e . . . to avoid certain civilian neighbourhoods” . In

fact in Sarajevo, as more or less everywhere in Bosnia and Herzegovina, it was very difficult in this

civil war to distinguish between civilians and m ilitary. We can only observe here that it is

impossible to speak of wilful and intentional bombard ment of civilian targets in this war, in which

6
General Sir Michael Rose, Fighting for Peace, The Harvill Press, London, 1998, p. 197.
7
Transcripts of Prosecutor v. Stanislav Galic, case No. IT-98-29, 21 February 2002, p. 4208; 25 February 2002,
p. 4317; 26 February 2002, p. 4448; 15 May 2002, p. 8494.
8
Transcript of Prosecutor v. Stanislav Galic, 8 July 2002, p. 11331.
General Sir Michael Rose, Fighting for Peace, The Harvill Press, London, 1998, p. 172.

1Transcript of Prosecutor v. Stanislav Galic , 5July2002,. 1239; transcript of 15July2002,
pp. 11629-11630.

1ICTY, Prosecutor v. Stanislav Galic , Judgement, 5December2003, separate opinion of JudgeNieto Navia,
para. 9. - 5 -

the military element and the civilian are indissol ubly linked, where the civilian element conceals

the military, and where the military element pervades the entire civilian domain.

153. The statements by General Sir Mi chael Rose, General Lewis Mackenzie,

General Francis Briquement and Colonel David Fraser are statements by impartial individuals who

all have direct knowledge of the events. In a ddition they have consider able personal military

knowledge and experience, which gives their statements undeniable probative force.

154. The Applicant refers in its Memorial (para. 2.2.5.10) to events in the town of Bihac, of

which we spoke at length yesterday. This town was the theatre of fighting between two Muslim

party factions; the faction loyal to Alija Izetbegovic, fewer in nu mber but far superior militarily,

and the faction loyal to FikretAbdic, which cons isted of a great majority of inhabitants of the

Bihac region but was much less well armed. As I to ld you, the differences between two factions of

the same party revolved around the organization of th e future Bosnian State, and the supporters of

Fikret Abdic allied themselves with the Serbs to ensu re their survival, and in fact they did survive,

thanks to this collaboration with the Serbs. Bu t Serb-Muslim collaboration in this region and the

aid that the Serbs gave the population clearly show that the purpose of the war was not to destroy a

national, ethnical, racial or religious group, but that its main purpose from the outset was political:

to control both the nature of the Bosnian State that the international community had just recognized

and the sharing out of territory in this new mini-Yugoslavia.

155. The transport of humanitarian aid for besi eged areas falls within the same context.

Although the Bosnian Serbs sometimes hindered such transport, it is noteworthy that humanitarian

aid came to Bosnia and Herzegovina through the territory of Republika Srpska throughout the

14 war–– a glance at a map is sufficient. Yet 90pe rcent of this aid was intended for the Muslim

population. The people of Republika Srpska were treated no better; for a long time Banja Luka and

its territory, i.e., Republika Srpska, was a true encl ave, with no direct link with any other territory

except enemy territories.

156. It was only when the town of Brcko was re captured that a corridor to Serbia could be

established, but throughout this period the to wn of Banja Luka was under a comprehensive

blockade, and the people, whether Serbs, Croats or Muslims, were starving. The people were

hungry and cold and were short of medical suppli es; in light of this knowledge, it is perhaps - 6 -

surprising that the leadership of Republika Srpska should be asked to give their enemy what they

could not give their own citizens. Throughout the war the international community asked for and

obtained free passage for humanitarian aid through Republika Srpska, such humanitarian aid being

intended for its enemies.

157. The Applicant has also made an inve ntory of the towns from which Muslims were

allegedly expelled. It is a fact ⎯ and we will return to it ⎯ that there is a certain number of towns

from which that population was expelled. However, unfortunately, and I do say unfortunately, this

occurred in all the towns.

158. In her presentation of 2 March 2006 Ms Laura Dauban described the situation in

Bosanski Samac, citing judgments in the various Bosanski Samac cases. Ho wever, she omitted to

say that all the persons convicted in these cases, both those found guilty and those who pleaded
12
guilty, were convicted of crimes against humanity, persecution or torture . But they were not

convicted of genocide. Even more important, the Trial Chamber decided, precisely in the Bosanski

Samac case, that it could not conclude that th ere had been ethnic cleansing or the forcible

13
15 displacement of people in Bosanski Samac in the period covered by the indictment . The

indictment covers exactly the period of the war in Bosnia and Herzegovina, and Article 28 of that

14
document deals with the displacement of the population from 1992 to 1995 .

159. In its various written and oral pleadings the Applicant puts forward figures for persons

killed, injured and raped in the course of the conf lict. These are obviously terrible figures, but are

they all imputable to the Serbs? In his presentation of 27 February 2006, Mr. Phon van den Biesen,

the Applicant’s Deputy Agent, stated that the most exact figure possible for the number of persons

killed was 102,000. However, this includes civilia n and military casualties, victims of the conflict

between Serbs and Muslims, between Serbs and Cr oats, between Croats and Muslims and between

the two rival Muslim factions in the Bihac region. This conflict, which caused so many

12
ICTY, Prosecutor v. Blagoje Simic et al ., case No. IT-95-9-T, Trial Cham ber, Judgement, 17 October 2003;
Prosecutor v. Milan Simic , case No. IT-95-9/2, Trial Ch amber, Judgement, 17 October 2002; Prosecutor v. Stevan
Todorovic, case No. IT-95-9/1, Trial Chamber, Judgement, 30 May 2002.
13
ICTY, Prosecutor v. Blagoje Simic, case No. IT-95-9-T, Trial Chamber, Judgement, 17 October 2003, para. 33.
1Fifth Amended Indictment of Blagoje Simic et al., case No. IT-95-9, 30 May 2002, para. 28. - 7 -

casualties –– 102,000, we are told, and I do not disp ute the figure –– includes Muslims, Croats and

Serbs, because these were the warring parties.

160. In that same address, Mr. Phon van den Biesen puts the number of displaced persons at

816,000 and the number of refugees at 1,300,000, i.e., about 50 per cent of the population of

Bosnia and Herzegovina, but those persons, lik e the refugees, are obviously not all Bosnian

Muslims, they are not all non-Serbs; quite a c onsiderable number of these displaced persons and

refugees are Serbs. The Applicant does not challe nge this. Reference is made to a speech by

PresidentSlobodan Milosevic in which he spoke of 500,000 refugees in Serbia ⎯ 500,000

refugees ⎯ and Mr. Phon van den Biesen confirms it: “For one time, Milosevic spoke the truth.”

15
Consequently, and in accordance with th e documents cited by the Applicant , the Serb percentage

among the refugees and displaced persons approximate ly matches the percentage of Serbs in the

16 population of Bosnia and Herzegovina. The Serbs, like the other peoples of Bosnia and

Herzegovina, were victims of this war.

161. The Applicant alleges genocide in the re gion of Bosanska Krajina, a region where the

Serbs were substantially in the majority befo re the war, although their numbers declined

significantly during the Second World War because that region was already coveted at that time by

Croatia, and a campaign to exterminate the Serbs had been conducted in 1941 and 1942. Today,

much of this region belongs to the region of Una-Sana, which is part of the Croatian-Muslim

Federation. This region comprises the municipalities ⎯ and this brings us back to names which

you have already heard mentioned frequently ⎯ of Kljuc, Sanski Most, Bosanski Petrovac, Bihac,

Bosanska Krupa. These are the municipalities which the Applicant cites regularly in order to allege

genocide against the Bosnian Muslims. However, according to information from the UNHCR, the

region of Una-Sana is today inhabited almost exclusively by Muslims. The UNHCR estimates that

94 per cent of the population of this region is Muslim, 3 per cent Croat and 2 per cent Serb.

162. It is difficult to see how an initially majority population group, which ends up as a

population group of 2per cent, could have been guilty of genocide. On the contrary, this is an

15
Ewa Tabeau, Marcin Zoltkowski, Jakub Bijak, ArvHetland (Demographic Unit, Office of the Prosecutor
ICTY), “Ethnic Composition, Internally Displaced Persons and Refugees from 47municipalities of Bosnia and
Herzegovina 1991 to 1997-1998”, submitted as an Expert Report in the case of Slobodan Milosevic, 4 April 2002. - 8 -

illustration ⎯ and a tragic one at that ⎯ of what happened throughout this conflict when one of the

parties to the conflict took control of a territory.

163. The number of other towns where the Serbs were in the majority and where there are no

longer any Serb residents today is very high. I sha ll cite one example, that of Drvar, because of its

flagrancy. Before the war, the Serbs accounted for 97per cent of the population of that town,

which is situated in south-western Bosnia, not very far from Croatia. Well, not a single Serb

remains there today. And the situation is exactly the same in all the other towns overrun by the

Muslims or the Croats, which had Se rbian residents before the war. What this means is that the

Muslims were expelled from the towns and villages overrun by the Croats, while the Croats were

expelled from the towns and villages overrun by the Mu slims. This clearly shows that each of the

three belligerents implemented a policy of popula tion displacement as an integral part of its

military strategy. It was not a question of destro ying a national, ethnic, racial or religious group,

but simply of living in a secure territory, as a way of applying the painful lessons learned over a

very long period of history.

17 164. In his address on 10 March 2006, Professor Stojanovic spoke of the national structure of

Bosnia and Herzegovina before and after the war. Well, it has hardly changed. From a

demographic standpoint, the Muslims’ percenta ge share of the population of Bosnia and

Herzegovina has even increased in relation to what it was before the war. The Serbian population

in the Croatian-Muslim Federa tion controlled by the Muslims and the Croats has declined

considerably, in the same proportion as th e Muslim and Croat populations living in

Republika Srpska. Republika Srpska is perhaps more homogeneous than the Federation, although

on close analysis it is found that the great majority of people living in Croat-governed territories are

Croats and that the territories under Muslim control are inhabited almost exclusively by Muslims.

The population of the Federation, as it exists t oday, is not more mixed than the population of

Republika Srpska. It is of course regrettable, but all the peoples of Bosnia and Herzegovina have

taken the same coherent approach to acquiring their individual territories. This approach was based

on the emergence of nationalistic movements, which had led to the disintegration of Yugoslavia.

Once again, the disintegration of Bosnia and Herzegovina was a by-product of the disintegration of

Yugoslavia, given its composition, since the same causes usually produce the same effects. - 9 -

165. In his statement on 27 February 2006, the Agent of the Applicant stated that 4,300,000

Bosnians had lived in Bosnia and Herzegovina, and that today they number only 3,500,000. I do

not wish to cast doubt on these figures, but they prove nothing. Of the 4, 300,000 people living in

Bosnia and Herzegovina before the war, 42.2 per cent were Bosnian Muslims and 32.2per cent

were Serbs. That was the official census count , since in Yugoslavia not only Yugoslav nationality

but also the nationality of each of the constitu ent peoples was recorded on Yugoslav passports.

The numbers were therefore not difficult to calcula te. And now today, of the 3,500,000 Bosnians

living in Bosnia, 45.5 per cent are Bosnian Muslims and 35.3 per cent are Serbs 1. This means that

the relative proportions have remained almost identical and that, apart from the direct victims of the

18 conflict, there were refugees and then there was a high level of emigration among all the peoples of

the region, for the purpose of going to live and work in countries more welcoming than that

unfortunate territory. In a sense, as many Serbs as Muslims and Croats combined have disappeared

in this conflict. As I said before, this terr itorial war was a war of separation, a ghastly and

fratricidal war. This war ⎯ it is too late to bring this up today ⎯ could no doubt have been

avoided, but it was not; this wa r should not have taken place, but it did. This war was a tragedy

which saw horrible crimes committed, but this war was not genocidal. It was a war of secession.

166. Taking into the account the reality of civil war, it is really impossible, in the

circumstances, to speak of the deliberate infliction on the Muslim people of conditions of life

calculated to bring about their destruction in whole or in part. A legal analysis of what is meant by

the deliberate infliction on a group of conditions of life calculated to bring about its destruction in

whole or in part will confirm this.

(b) The legal concept of infliction of conditions of life calculated to bring about the physical

destruction of a group in whole or in part

167. The International Criminal Tribunal for Rwanda, in the Akayesu case, held that

deliberately inflicting on the group conditions of life calculated to bring about its physical

destruction in whole or in part should be c onstrued as methods of destruction whereby the

perpetrator does not immediately kill the members of the group, but which, ultimately, seek their

16
Ewa Tabeau, Marcin Zoltkowski, Jakub Bijak, Arve Hetland, (Demographic Unit, Office of the Prosecutor
ICTY), “Ethnic Composition, Internally Displaced Persons and Refugees from 47 Municipalities of Bosnia and
Herzegovina 1991 to 1997-1998”, submitted as an Expert Report in the case of Slobodan Milosevic, 4 April 2002. - 10 -

17
physical destruction . It also held that the acts which may constitute such infliction include,

inter alia, subjecting a group of people to a subsisten ce diet, systematic expulsion from homes and

18
the reduction of essential medical services below the minimum requirement .

168. According to the jurisprudence of the Tribunal for the former Yugoslavia, as established

in the Stakic case ⎯ I would remind you that he was the mayor of the town of Prijedor ⎯

“deliberately inflicting on the group conditions of life calculated to bring about its physical

destruction in whole or in part” includes methods of destruction apart from direct killings such as

19
subjecting the group to a subsistence diet, systemat ic expulsion from homes, denial of the right to

medical services, and the creation of circumstances that would lead to a slow death, such as lack of

19
proper housing, clothing and hygiene or excessive work or physical exertion .

169. However, it should be noted that the mere expulsion of a group cannot be characterized

20
as genocide . This position was clearly and expressly adopted by the judges in the Stakic case.

They noted that “it does not suffice to deport a group or a part of a group. A clear distinction must

be drawn between physical destruction and mere di ssolution of a group. The expulsion of a group

21
or part of a group does not in itself suffice for genocide.”

170. And in the Eichmann case, the Jerusalem court, which I cited yesterday, held that the

use of terror to drive out the Jewish population and force it to emigrate did not constitute genocide,

as the opportunity given to them to leave was ev idence that there was no intent to perpetrate

physical destruction.

171. The Applicant then tries to make out that the acts constituting genocide may be

interpreted extensively. In support of this ar gument, in its oral pleading on 1March2006, it

alleged that Dr. Bartos, the representative of Yugoslavia to the United Nations, had envisaged and

proposed that the transfer of population groups shoul d be included in the concept of genocide. Let

us recall the dates. We are in November 1948, after the Second World War. Entire peoples have

17ICTR, Akayesu case, Judgment, para. 505.
18
Id., para. 506.
19
Stakic case, Judgement, para. 517.
20The German courts have held that the expulsion of Bosnian Muslims from the region in which they lived did
not constitute genocide. See BGH v. 21.2.2001 – 3 StR244/00, NJW 2001, 2732 (2733).

21Stakic case, Judgement, para. 519. - 11 -

been displaced. The question of Palestine and the cr eation of the State of Israel is raised. Syria,

supported by the very same representative of Yugo slavia, Dr. Bartos, submits a proposal in the

Sixth Committee for the addition of a subparagra ph to Article II of the Genocide Convention,

providing for the commission of genocide to include acts designed to force populations to abandon

their homes in order to escape from the threat of subsequent ill-treatment. This takes us to the heart

of the question we are discussing today and to th e reference expressly made by the International

Criminal Tribunal. Does genocide hinge on how we distinguish between the physical destruction

20 and the mere dissolution of a group? That is the question. In fact, this proposal, put forward by

Syria and Yugoslavia, was rejected by an overwh elming majority of votes, more precisely by

22
29 votes against, to five in favour, with eight abstentions . This clearly shows that, once again in

1948, there was a reluctance to amend the definiti on of genocide and, in particular, to include

population displacement in that definition, for reasons which can readily be understood. Thus,

neither the text of the Convention nor the travaux préparatoires permit a broad interpretation of

Article IIof the Genocide Convention. Forcible population transfer was expressly excluded from

the scope of the Convention.

172. One is thus forced to conclude that what the Applicant calls “ethnic cleansing”

(Memorial, para. 2.2.5.3; Reply, Chap, 6, paras. 30-49), and what it presents as a form of genocide,

is in reality population transfer, as discussed at length in the travaux préparatoires of the Genocide

Convention.

173. Moreover, looking at the term “ethnic cleansing”, it is obviously not a legal term; it is

simply a highly emotive media coinage. And this ill-defined media coinage groups together, in a

single image, several legal categories, including deportation and population transfers, none of

which constitutes the actus reus of genocide, since they are not included in ArticleII of the

Genocide Convention.

174. It should be noted that, at the time of the establishment of the Tribunal for the former

Yugoslavia, the term “ethnic cleansing” was used for the first time with a legal connotation, and

22
United Nations, Official Records of the General Asse mbly, Third Session, Sixth Committee, Summary Records,
21 September-10 December 1948, pp. 176 and 186. - 12 -

that it was then assimilated, not to genocide, but to a crime against humanity. In his report on the

Statute of the Tribunal, the United Nations Secretary-General stated:

“Crimes against humanity refer to inhuma ne acts of a very serious nature, such
as wilful killing, torture or rape, committed as part of a widespread or systematic
attack against any civilian population on national, political, ethnic, racial or religious

grounds. In the conflict in the territory of the former Yugoslavia, such inhumane acts
have taken the form of so-called ‘ethnic cleansing’ and widespread and systematic
rape and other forms of sexual assault, including enforced prostitution.”

21 175. Finally, the Tribunal has itself, more particularly in its Stakic judgment, established a

distinction between ethnic cleansing and genocide, holding that ethnic cleansing does not constitute

23
a distinct crime .

176. Thus, as the judges on the Tribunal noted, a distinction must be drawn between the

dissolution of a group and its destruction. Only physical or biological destruction constitutes

genocide. In the Stakic case, the judges noted that the idea of physical destruction is inherent in

the term genocide, which is derived from the Greek root genos, meaning “race” or “tribe”, and

from the Latin infinitive caedere, meaning “to kill”.

177. In that same case, the judges also point ed out that cultural genocide, as distinct from

physical and biological genocide, was specifi cally excluded from the Genocide Convention.

Further, in the Blagojevic case, Trial Chamber I held:

“The Appeals Chamber has recently confirmed that by using the term destroy
the Genocide Convention and customary international law in general prohibit only the
physical or biological destruction of a human group. In the travaux préparatoires of
the Convention a distinction was made between physical or biological genocide on the
24
one hand and cultural genocide on the other.”

178. Trial ChamberI in the same case refers to the opinion of the International Law

Commission on the meaning of the word “destruction” in relation to the crime of genocide. The

International Law Commission defines such destruction as:

“the material destruction of a group either by physical or by biological means, not the
destruction of the national linguistic, religious, cultural, or other identity of a

particular group. The national or religious element and the racial or ethnic element are
not taken into consideration in the definiti on of the word destruction which must be
taken only in its material sense, its physical or biological sense.” 25

23
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, paras. 981 and
982.
24
Blagojevic case, Trial Chamber I, Judgement, 17 January 2005, para. 657.
2Id. - 13 -

The destruction of the cultural and historic heritage, to which the Applicant devoted much of its

written pleadings (Memorial, Section2.2.5; Re ply, Chap.5, paras.248-286), was only the

consequence of the war. Of course, the war context does not detract from the criminal nature of

22 some of these acts, but in no event can these acts legally be said to constitute genocide.

179. In conclusion, the concept of genoc ide, as it was defined when the Genocide

Convention was adopted in 1949, has not changed in legal terms. The different texts adopted or

proposed subsequently, including in particular the International Law Commission draft in 1996 and

the Statute of the International Criminal Court in 2002, reproduced word for word the language of

the Genocide Convention.

180. Taking into account the civil war raging in Bosnia and Herzegovina at the time of the

alleged events, a war which, by its very nature, generated inhuman conditions of life for the entire

population in the territory of that State, including the Serbian population, it is impossible to speak

of the deliberate infliction on the Muslim group al one or the non-Serb group alone of conditions of

life calculated to bring about its destruction.

181. Before entering into an analysis of the elements which distinguish the crime of genocide

from other offences that might be constituted by the acts enumerated above, we should now look at

the various offences characterized as genocide in the Applicant’s allegations. For the purposes of

this part of my argument, genocide is to be understood in the broadest sense of the term,

encompassing all forms of participation in the commission, stricto sensu, of a criminal offence.

III. Forms of participation in the crime of genocide

182. We will examine Article III of the Convention, which stipulates that the following acts

are punishable:

(a) genocide;

(b) conspiracy to commit genocide;

(c) direct and public incitement to commit genocide;

(d) attempt to commit genocide; and

(e) complicityingenocide. - 14 -

We can conclude that ArticleIII of the C onvention was intended to cover any form of

“complicity” in genocide, going beyond the legal sense of the word, provided the intent was shared.

23 183. Once again, the Applicant does not indicate how the genocide was committed or who

committed it, but merely alleges that Serbia and Montenegro ⎯ which, moreover, was not even

one of the three belligerents ⎯ is responsible for the genocide in all of the forms set out in

ArticleIII that I have just cited, with the excep tion of attempt, since the Applicant has clearly

stated in its oral pleadings that it does not allege an attempt, but the full, completed offence.

184. The perpetration of genocide itself, under ArticleIII (a) of the Convention, does not

warrant any particular comment; it involves the commi ssion of the offence as previously defined.

We would, nevertheless, quote the judgment of the Trial Chamber of the International Criminal

Tribunal for the former Yugoslavia, in which the Ch amber defined the perpetrators of the principal

crime of genocide in the following terms:

“The Trial Chamber has previously identified the perpetrators or co-perpetrators

of genocide as those who devise the genocidal plan at the highest level and take the
major steps to put it into effect. The perp etrator or co-perpetrator is the one who
fulfils ‘a key co-ordinating role’ and w hose ‘participation is of an extremely

significant nature and at the leadership le vel’. This Trial Chamber regards genoci26
under Article 4 (3) (a) as usually limited to ‘perpetrators’ or ‘co-perpetrators’.”

I believe that this quote goes to the heart of the matter, the core definition of perpetrators. It makes

things very clear.

185. But now let us consider, in much greater detail, the three other forms of implication in

genocide, as intent plays a very specific role.

186. We will analyse:

(i) conspiracy to commit genocide;

(ii) direct and public incitement to commit genocide;

(iii) complicityingenocide.

(i) Conspiracy to commit genocide

187. Conspiracy to commit genocide is the most appropriate charge for participation by the

State.

26
ICTY, Prosecutor v. Milomir Stakic , case No. IT-97-24-T, Trial Chaber II, Judgement, 31July2003,
para. 532. - 15 -

24 188. According to the travaux préparatoires, conspiracy to commit genocide was included in

the Convention so as to make an agreement to commit genocide punishable even if no prior

preparations had been made . This had been found necessary in order to meet the requirements of

genocide prevention emphasized by the United Nations Secretariat in the following terms:

“Prevention could require making punishab le certain acts which, in themselves,
do not constitute genocide, for example, cer tain material acts preparing genocide, an
agreement or accord to commit genocide, or all forms of propaganda tending by their
28
systematic and hateful character to promote genocide.”

189. The notion of “conspiracy” was based on the Anglo-Saxon common law definition of

the crime of conspiracy. In its report, the Ad Hoc Committee on Genocide explained that
29
conspiracy was a crime under Anglo-American law . This reflects the comments made during the

Committee’s debate on the notion of conspiracy. Fr ance’s representative, for example, pointed out

that it was a concept for which there was no e quivalent in French law. The United States

representative, speaking as Chairman of the Committee, explained that, under common law,

conspiracy is a crime involving the agreement of two or more individuals to commit a criminal act.

The representative of Venezuela pointed out that the word conspiración in Spanish means a plot

against the Government, whereas the English term “conspiracy” in Spanish means an association

with a view to committing an offence. The Po lish representative noted that, under common law,

the term “complicity” covers only the two notions of “aiding and abetting” (“complicité et

provocation”), so that the notion of “conspiracy” does not correspond to “complicity”. He further

observed that the Secretariat’s draft provided under separate heads ⎯ as we shall see in a

moment ⎯ for complicity on the one hand, and conspiracy or any other form of agreement. When

the matter was debated in the Sixth Committee, a decision had to be taken. The United States

representative, Mr.Maktos, indicated that the word “conspiracy” had a very precise meaning in

25 common law; it meant when two or more persons agree to commit an illicit act 3, and Mr. Raafat,

Egypt’s representative, announced that the notion of agreement had been included in Egyptian law;

2United Nations, Official Documents of the General Assembly, Sixth Committee, Summary Records,
21 September-10 December 1948.

2Note from the United Nations Secretariat (1948), p. 8.
29
Report of the Ad Hoc Committee on Genocide (1948), p. 8.
3United Nations, Official Records of the General Assembly, Third Session, 84th Meeting (1948), p. 212. - 16 -

it meant the coming together of several persons to commit a crime, regardless of whether the

offence was committed.

190. The lengthy account that I have imposed on you demonstrates quite simply that, at the

time, there were differences among the representativ es of the various legal systems as to the

meaning of the offence of conspiracy to commit genocide.

191. The notion of conspiracy to commit genocide has since been written into the Statutes of

the ad hoc International Tribunals, which reproduce pr ecisely, in Article4.3 for the ICTY and

Article 2.3 for the ICTR, the terms of the Genocide Convention.

192. Conspiracy to commit genocide has much in common with a broader notion applicable

to other crimes subject to the jurisdiction of international courts, namely a joint criminal enterprise.

193. As with conspiracy to commit genocide, there is no set definition for a joint criminal

enterprise: the meaning tends to vary, prompting c onsiderable debate as to its place in a criminal

justice system.

194. In the present case, the Applicant has pr ovided no evidence which could suggest that a

conspiracy ⎯ and I mean a conspiracy ⎯ to commit genocide involving Serbia and Montenegro

ever existed. Moreover, it has shown no agreem ent between individuals, State institutions or

agents or States with a view to the commission of genocide.

195. It has done no more than cite or recount a multitude of facts, some of which have never

been confirmed, while others, as we have seen, have proved to be untrue. Those facts have,

moreover, not been characterized as genocide upon examination by the International Criminal

Tribunal for the former Yugoslavia.

196. The Tribunal for the former Yugoslavia has not once been able to establish the

existence of a State conspiracy to commit genocide. On the contrary, in the case of Brdjanin, who,

I would remind you, was President of the Prijedor region, the Tribunal found that the Bosnian

Serbs’ plan was to bring together as much territory as possible where the Serbs formed the majority

of the population in order to create a Serb State w ithin Bosnia. And the Trial Chamber held that it

was not possible to conclude that an intent to destroy the Muslims and Bosnian Croats existed in - 17 -

26 western Bosnia , especially as the Bosnian Muslims’ plan had clearly been an exact mirror image

of that of the Serbs: bringing together as mu ch territory as possible wh ere Muslims formed the

majority of the population.

197. When the case of Krstic came before the Appeals Chamber of the ICTY, it quashed his

conviction for participation in a joint criminal enterprise with a view to committing genocide 32,

due, again, to a lack of evidence regarding the other people involved, the members of the

conspiracy.

198. As the Applicant fails to indicate which facts it bases itself upon in order to conclude

that there was a conspiracy, it is virtually impossible in these circumstances to answer its

allegations. Nor does the Applicant identify th e individuals supposedly implicated in this

conspiracy to commit genocide. And if we do not know who those implicated in the conspiracy

were, we cannot of course analyse either their inte nt or their acts. In consequence, we can only

conclude that the Applicant lacked the necessary evidence to raise a serious claim of conspiracy to

commit genocide.

(ii) Direct and public incitement to commit genocide

199. The Applicant indiscriminately conte nds in its allegations that Serbia and

Montenegro ⎯ for the dispute, this case, is not be tween Republika Srpska and the two other

entities, it is between the Republic of Serbia and Montenegro and the Republic of Bosnia ⎯ and,

the Applicant puts forward indiscriminate allega tions, claiming that Serbia and Montenegro

engaged in incitement to commit genocide. Of course, the Applicant does not identify the

individuals capable of engaging Serbia and M ontenegro’s responsibilit y who conducted that

incitement. Nor does it identify the individuals who were supposedly incited and then

committed ⎯ or at least sought to commit ⎯ genocide.

200. Incitement to commit an interna tional crime was first made punishable ⎯ and very

27 severely so ⎯ by the Nuremberg Tribunal. In its judgment on Julius Streicher, the Nuremberg

31
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Trial Cham ber, Judgement, 1September 2004,
para. 981.
32ICTY, Prosecutor v. Radoslav Krstic, case No. IT-98-33-A, Appeals Chamber, Judgement, 19April 2004,

p. 87. - 18 -

Tribunal, in view of the viciously anti-Semitic articles which the accused had published in the

weekly Der Stürmer, concluded that:

“Streicher’s incitement to murder a nd extermination at the time when Jews in

the East were being killed under the most horrible conditions clearly constitutes
persecution on political and racial grounds in connection with War Crimes, as defined
by the Charter, and constitutes a Crime against Humanity.” 33

201. Common law systems tend to regard incitement as a specific form of criminal

complicity, punishable as such. The common law de fines incitement as the act of encouraging or

persuading another person to commit a crime.

202. The legislation of certain civil law countries, including Spain, Argentina, Uruguay,

Chile, Venezuela, Peru and Bolivia, also regards provocation, which is similar to incitement, as a

specific form of participation in a crime; however, for the majority of civil law systems, incitement

is generally viewed as a type of complicity. As I have said, civil law systems punish direct and

public incitement as provocation, wh ich is defined as an act aimed at directly provoking others to

commit a crime through speeches, shouting, threats or any other means of communication, notably

the broadcast media.

203. When the Genocide Convention was adopt ed, the delegates decided deliberately to

include direct and public incitement to commit genocide as a specific crime, due notably to its

importance in the preparation of genocide.

204. The notion of direct and public incitement to commit genocide is included in the articles

on genocide in the Statutes of the Internationa l Tribunals for the former Yugoslavia and for

Rwanda, as well as for the International Criminal Court.

205. In order to be punishable, incitement must be direct and public.

206. The public nature of the incitement can be analysed more closely in light of two factors:

the place where the incitement was expressed and the issue of whether the audience was selected or

restricted. The traditional jurisprudence on this point under civil law holds that statements are

28 “public” when they are uttered out loud in a place that is by its nature public. According to the

International Law Commission, public incitement requires a call to commit an offence addressed in

a public place to a number of individuals or a call to the general public by such means as the mass

33
Nuremberg Trials, Vol. 22, p. 502. - 19 -

34
media, for example, radio or television . In this respect, it should be noted that, when the

Convention was adopted, the delegates specifica lly agreed to rule out the possibility of

criminalizing private incitement to commit genocide, thereby underscoring their commitment to set

aside for punishment only truly public forms of incitement, that is to say, those widely publicized 35.

207. The “direct” element of incitement requir es that the incitement assumes a direct form

and specifically provokes others to engage in a cr iminal act. According to the Draft Code of

Crimes against the Peace and Security of Mankind prepared by the International Law Commission,

a mere vague and indirect suggestion is in sufficient to constitute direct incitement 36. In civil law

systems, provocation, the equivalent to incitement, is regarded as direct if it is aimed at causing a

specific offence to be committed. When provocation is alleged in a civil law system, the

prosecution must prove a clear causal link between the act characterized as provocation and a

specific offence, in our case genocide.

208. In its jurisprudence, the Tribunal for Rwanda considers that the directness of incitement

must be assessed in light of the culture and language concerned. According to the judgment in the

Akayesu case, “a particular speech may be perceived as ‘direct’ in one country, and not so in

37
another, depending on the audience” .

209. Consequently, international jurisprude nce has adopted the position that incitement

needs to be assessed on a case-by-case basis, in light of the culture of the country concerned and

the specific circumstances of the case, in order to determine whether it is direct or not. During this

29 assessment, the question to be considered is wh ether those to whom the message was addressed

directly and clearly understood its meaning.

210. However, irrespective of legal system and cultural background, according to the

International Criminal Tribunal for Rwanda direct and public incitement should be defined as:

34
“Draft Code of Crimes against the Peace and Security of Mankind”, Art.2(3) (b): United Nations, Official
Records of the General Assembly, Fifty-First Session, Supplement No.10 , Report of the International Law Commission
to the General Assembly, doc. A/51/10 (1996), p. 26.
35
Yearbook of the United Nations , 50th edition, 1945-1995, Martinus Nijhoff publishers, 1995; United Nations,
Official Records of the General Assembly, Sixth Committee, Summary Records, 21 September-10 December 1948.
3United Nations, Official Records of the General Assembly, Fifty-First Session, Supplement No. 10, Report of the
International Law Commission to the General Assembly, doc. A/51/10 (1996), p. 43.

3ICTR, Prosecutor v. Jean-Paul Akayesu , case No. ICTR-96-4-T, Chambe r I, Judgement, 2September1998,
para. 557. - 20 -

“directly provoking the perpetrator(s) to commit genocide, whether through speeches,

shouting or threats uttered in public places or at public gatherings, or through the sale
or dissemination, offer for sale or display of written material or printed matter in
public places or at public gatherings, or through the public display of placards or
38
posters, or through any other means of audiovisual communication” .

211. The mental element of the crime of di rect and public incitement to commit genocide

therefore lies in the intent to induce or provoke others directly to commit an act of genocide. It

thus requires proof that the accused intended, by his acts, to induce in the individual or individuals

addressed a state of mind conducive to commission of this crime. That is to say, the person inciting

genocide must him/herself necessarily be motivated by genocidal intent.

212. However, in its written pleadings, the App licant has provided no analysis whatever of

the situation and has failed to identify those s upposedly responsible for incitement to commit

genocide. It does not even identify the acts which allegedly constituted direct and public

incitement to commit genocide. Nowhere does it prove genocidal intent.

(iii) Complicity

213. The “Nuremberg Principles” 39already provided in PrincipleVII: “Complicity in the

commission of a crime against peace, a war crime, or a crime against humanity as set forth in

Principle VI is a crime under international law.”

214. Thus, participation by way of complicity in the most serious breaches of international

humanitarian law was already considered a crime by the Nuremberg Tribunal.

215. Complicity is a form of participation in crime which is addressed by all criminal law

systems ⎯ I am not going to spend much time on this point ⎯ including the Anglo-Saxon

30 (common law) system and the continental (civil law) system. An accomplice in an offence may be

40
defined as one associated in the co mmission of the offence by another ; complicity obviously

presupposes the existence of the principal offence.

21h6e. travaux préparatoires of the Genocide Convention show that the crime of

complicity in genocide was contemplated only in those cases where genocide had in fact been

38
Ibid., para. 559.
3“Principles of International Law Rec ognized in the Charter of the Nuremb erg Tribunal and in the Judgment of

the Tribunal” adopted by the International Law Commission of the United Nations, 1950.
4Osborn’s Concise Law Dictionary defines an accomplice as: “any person w ho, either as a principal or as an
accessory, has been associated with another person in the commission of any offence”, Sweet and Maxwell, 1993, p. 6. - 21 -

committed. The principal offence must therefore be proved ⎯ and this is perfectly obvious under

criminal law ⎯ before complicity can be charged. The Genocide Convention did not criminalize

complicity in an attempt to commit genocide, co mplicity in incitement to commit genocide or

complicity in conspiracy to commit genocide. It is therefore noteworthy that under Article III there

can be complicity in genocide itself but there can be no complicity in the three other forms, which

moreover are themselves types of complicity. It is impossible to be an accomplice in an attempt to

commit genocide.

217. Complicity in genocide means all those acts of aiding or abetting which significantly

contributed to the consummation of the crime of genocide or which had a substantial effect on the

commission of that crime. Complicity therefore necessarily requires the existence of the principal

offence. In other words, there can be complicity in genocide only where there has been genocide.

218. It is also true that the drafters of th e Convention wished to require proof of genocidal

intent on the part of the accomplice in order for there to be complicity (complicité). This is a very

important point: the accomplice’s genocidal in tent. The United Kingdom’s representative on the

Sixth Committee of the General Assembly, seeking to be explicit, proposed introducing the word

“deliberate” to qualify “complicity”, explaining that this was an important point because complicity

required intent in certain systems but not in ot hers. Several delegati ons (Luxembourg, Egypt,

Soviet Union and Yugoslavia) then stated that th ey found this clarification useless because it was

self-evident that complicity in genocide had to be intentional. The United Kingdom finally

31
withdrew its amendment, nevertheless pointing out : “it was understood that, to be punishable,

complicity in genocide must be deliberate”.

219. Thus, on this point concerning the intent of the accomplice, I think that, legally, it is

perfectly clear. It is perfectly clear and, yet, in establishing complicity in the Krstic case, the

Appeals Chamber of the Tribunal for the former Yugoslavia did not seek to find genocidal intent

on the part of the accused. But, in so doing, th e Tribunal was perfectly cognizant of the problem

raised by the definition of complicity in Article III of the Convention, incorporated, as I mentioned,

verbatim into Article 4, paragraph 3, of the Stat ute of the Tribunal. The Tribunal was fully aware

of the difficulty because it did not base itsfinding of complicity on Article4.3 (c) of the Statute, - 22 -

but on Article7.1 of the Statute of the Tri bunal, which defines general and specific complicity 41.

There is therefore reason to believe that this choice was entirely deliberate on the part of the

Tribunal. It simply circumvented the difficulty contained in the Convention, ArticleIII of which

was incorporated verbatim into its Statute.

220. The analysis of mens rea in the cases before the Tribunal for Rwanda is slightly

different from that made by the Tribunal for the former Yugoslavia. Under the jurisprudence of the

Tribunal for Rwanda,

“an accused is liable as an accomplice to genocide if he knowingly aided or abetted or
instigated one or more persons in the commission of genocide, while knowing that

such a person or persons were committing genocide, even though the accused himself
did not have the specific intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such” 42.

Thus, under the jurisprudence of the Tribunal for Rwanda, an accomplice must be fully aware that

he is lending his support to the commission of genocid e and must do so deliberately. Here there is

a slight difference in the jurisprudence of the two international tribunals.

221. Complicity may take the form of various acts. In the judgment handed down in the

Akayesu case, the Tribunal for Rwanda specified act s which frequently constitute complicity or

rather the actus reus of complicity:

“Complicity by aiding or abetting implies a positive action which excludes, in
principle, complicity by failure to act or omission. Procuring means is a very common
form of complicity. It covers those pe rsons who procured weapons, instruments or
32
any other means to be used in the commissi on of43n offence, with the full knowledge
that they would be used for such purposes.”

222. True, complicity may take the form of various acts, but the Applicant in its written

pleadings has failed, once again, to identify a single act which could constitute complicity allegedly

committed by persons whose acts c ould bind or be imputed to Serb ia and Montenegro. Moreover,

the Applicant has not identified the principal pe rpetrator of the crime in which Serbia and

Montenegro allegedly lent its support as an accomplice.

41ICTY, Prosecutor v. Radislav Krstic, case No. IT-93-33-A, Judgement, 19 April 2004, para. 138.
42
ICTR, Akayesu case, Judgement, para. 545.
43ICTR, Prosecutor v. Jean-Paul Akayesu, case No. ICTR-96-4, Judgement, 2 September 1998, para. 536. - 23 -

(iv) The facts concerning participation by Serb s in one of the acts listed in Article III of
the Genocide Convention

223. Having examined the various elements of the different forms of genocide, we shall

analyse the facts alleged by the Applicant and shall arrive at the conclusion that under no

circumstances do they constitute genocide.

224. The Applicant does not state what means Serbia and Montenegro employed to commit

the alleged genocide. However, we have attempte d to identify, with no guarantee of success given

the difficulty of this task, the elements found in the Applicant’s written pleadings which, according

to the Applicant, could constitute the alleged genocide. We have to go into great detail and it is

therefore these elements which we are going to examine.

225. Having failed to uncover a plan, to bring to light even a presumption of a genocidal plan

by the Republic of Serbia and Montenegro, the Applicant relies on grand concepts. The

Applicant’s main concept is that the notion of Greater Serbia served as the ideological foundation

for the genocide. Now, what is this notion of Greater Serbia which allegedly contained the seeds of

the ideological basis for genocide, as Mein Kampf did for the acts tried in Nuremberg? The

Applicant seeks to portray Bosnia and Herzegovi na as a land of tolerance into which the Serbs

injected nationalism and armed conflict. And finall y, in order to link Serbia and Montenegro with

the conflict which, as I have said a hundred times, was a civil war, the Applicant strives to assign

the Yugoslav army a role which it never had.

33 226. Thus, to show that the Applicant’s pos ition is totally misconceived, we are going to

disprove, one by one, the elements which we have been able to identify and which we have just

mentioned.

(a) The Greater Serbia concept

227. The Greater Serbia concept, the ideological p act. What is this? First of all, the concept

of Greater Serbia has been wrongly described by the Applicant and, secondly, Serb leaders were

never followers of this ideology. It was neither the motive nor the objective of the war in Bosnia

and Herzegovina.

228. The Applicant considers that Serbia and Montenegro used the Greater Serbia concept to

rally public opinion and to jus tify its alleged military campaign (M emorial, para.2.3.3.1). In - 24 -

support of this argument, the Applicant contends th at the Greater Serbia ideology was born in the

nineteenth century at a time when Serbia was still part of the Ottoman Empire under Turkish rule.

229. The Respondent is forced to reply briefl y to wholly unfounded accusations. During the

nineteenth century when, accordi ng to the Applicant, the concept of Greater Serbia was born,

Serbia was not yet an independent State; it w as in the midst of its struggle for independence,

indeed against the Ottoman Empire, which rule d over Serbia and Montenegro as well as over

Bosnia and Herzegovina, Macedonia and part of pre sent-day Croatia. As to the other States which

were to become States of Yugoslavia, Slovenia and Croatia were then part of the Austro-Hungarian

Empire. When the various nationalities emerged in the nineteenth century, aiming to throw off the

yoke of these two Powers, the Ottoman and Aust ro-Hungarian Empires, the southern Slavs,

simultaneously in Serbia, Slovenia and Croatia, in vented pan-Slavism, the union of the southern

Slav peoples. Curiously, this ideology, for whic h Serbia is today reproached, was born not in

Serbia so much as in Croatia first and then Sl ovenia. It was a form of emancipation from the

Austro-Hungarian Empire at a time when Europe ⎯ indeed all of Europe ⎯ was being shaken by

the emergence of various forms of nationalism.

34 230. The quotations cited by the Applicant and dating from this time, specifically the

writings of Garasanin (Memorial, para. 2.3.1.2), are in no way the expression of a will to create a

Greater Serbia in the sense of a Serb empire, as it were, but rather the will of a people, the Serb

people, to free itself from Ottoman occupation. An d the same concerns were to be found at the

same time, as I said, in Croatia, where the greater pan-Slav movement together with the Illyrian

movement ⎯ the main political movement ⎯ and its founder, LjudevitGaj, indeed aimed at
44
uniting all the southern Slavs living in the Balkans in a single State . That, moreover, was largely

what led to the First World War and to the creation of Yugoslavia under the Treaty of Versailles.

231. And it was in reaction to this unifying movement that Austro-Hungarian propaganda in

the early twentieth century invented the notion of “G reater Serbia”, that is to say the idea of some

form of Serb domination over the southern Sl avs which would help the Croatian and Slovene

provinces gain independence. At that time th e Austro-Hungarian Empire was in effect in

44
Misha Glenny, Balkans 1804-1899, Nationalism, War and the Great Powers , Granta Books, London, 2000,
p. 43. - 25 -

competition with the small emerging country of Serbia, and, in particular, was competing ⎯ we are

very familiar with this, our common history ⎯ for control over Bosnia and Herzegovina, which

was slipping from the grasp of the Ottoman Empire.

232. Thus, in characterizing Serb aspirations in the Balkans as “Greater Serbia”, the

Austro-Hungarians were simply trying to draw a parallel with Russian expansionist policy, which

they called at the time the “Greater Russia” expa nsionist policy. And that enabled them to

transform the slightest Serb claim into expansionist aggression.

233. Yet, nowhere in its Memorial has Bosnia and Herzegovina seriously shown that this

ancient doctrine ⎯ which moreover bore fruit, I would remind you, in the creation of

Yugoslavia ⎯ was the foreign policy of the Yugoslav Federation, once it had been reduced to

Serbia and Montenegro! For the events we are discussing today were the exact opposite of Greater

Serbia. It was the end of the pan-Slav dream, th e end of the dream of the southern Slavs, it was

precisely the contrary.

35 234. This period did not see Serb expansion, but, on the contrary, the shrinking of the Serb

territorial sphere of influence, subject to challe nge everywhere, including within the borders of the

Republic of Serbia itself, that is to say in Kosovo, and within the borders of the Federation, because

some Montenegrins also wished to secede. Th e camps full of refugees from Croatia, Bosnia and

Herzegovina and Kosovo are unfortunately still flourishing today in Serbia, compounding the

economic difficulties of a territory and a popula tion which no longer has access to the same

resources or the same markets and whose channels of communication have been drastically

curtailed.

235. Serbia and Montenegro never declared war on Bosnia. Further, it has always

maintained its borders with Bosnia and Her zegovina, notably along the Drina, unlike Croatia,

which has eliminated the entire southern border of the country with Bosnia and Herzegovina, in a

region predominantly populated by Croats.

Thank you, I shall request a break.

The PRESIDENT: Thank you, Maître de Roux. The Court will now rise for 15 minutes.

The Court adjourned from 11.30 to 11.45 a.m. - 26 -

Mr. de ROUX: Thank you, Madam President.

(b) The tolerance of Bosnia and Herzegovina

236. I would now like to turn to the Appli cant’s representation of Bosnia and Herzegovina,

because its contention is that this country was a ha ven of tolerance and that Serbia brought first

discord, then terror and horror. Such a claim is not just wrong, I would say first of all that it is not

acceptable. It is really not acceptable to sing th e praises of this land, beautiful possibly, but

certainly not a land of tolerance. The Applicant bases his argument on the alleged tolerance of the

Ottoman Empire towards Spanish Jews in the fifteen th century (Memorial, para. 2.1.0.2). In any

event it cannot be said that the Ottoman Empire always showed the same tolerance towards the

36 Serbs whenever a show of independence entailed repression.

237. But to speak of tolerance among the va rious peoples of Bosnia and Herzegovina is

hardly acceptable today if we look at what happened there, not in the fifteenth century but in the

very recent past, and which unfortuna tely explains the tragedy of t oday to a large extent. Bosnia

and Herzegovina was the scene of the worst atro cities committed against Jews, Serbs and gypsies

during the last war. This territory was part of the new independent Croat State created by Nazi

Germany, which became an effective satellite of its creator; the fascist régime of AntePalevic is

quite notorious ⎯ it suffices to re-read Malaparte to unders tand what happened in those lands of

terror during those black years. And at the time th e Bosnians were regarded as the flower of that

Croat people and had powerful military forces wh ich committed unlimited atrocities against the

Serb resistance, particularly in the regions of Krajina and Eastern Bosnia.

238. The most notorious military unit, the Handjar Division, spread terror among the Serbs.

And President Izetbegovic, or rather the man who became President of Bosnia and Herzegovina in

1990, who wanted an independent and sovereign Bo snia, was at that time a member of the Young

Muslims, an organization set up in several countries and not then noted for its tolerance 4.

239. Finally, the Applicant’s Memorial dem onstrates its odd view of tolerance among the

peoples of Bosnia and Herzegovina, because even t oday at this hearing it completely excludes the

Serb element, accusing it inter alia of wanting to destroy the people, the territory and the culture of

45
Wikipedia, The free encyclopedia, www.wikipedia.org/wiki/Alija. - 27 -

Bosnia and Herzegovina (Memorial, para. 2.1.0.6). How could the Serbs of Bosnia want to destroy

the people, the territory and the culture to wh ich they belong? If a State of Bosnia and

Herzegovina exists today, if a people, a territory and a culture of Bosnia and Herzegovina exist,

they cannot do so without the Serb element. It is indispensable, like the Croat element and the

Muslim element, in constituting Bosnia and Herzegovina, its people, its territory and its culture.

37
(c) The rise of nationalisms

240. Let us return to the rise of nationalisms , to Yugoslavia and to its dissolution. The

Applicant states that MarshalTito suppressed Serb nationalism after the Second World War

(Memorial, para. 2.3.1.3). Serb nationalism wa s seen everywhere as some kind of diabolical

influence. Admittedly MarshalTito’s last Yugos lav Constitution was not very favourable to the

Serbs, because, of all the Yugoslav Republics, onl y Serbia had autonomous provinces. Of course,

after the Second World War Marshal Tito was especi ally tough in repressing the Serbs, who were

not necessarily nationalists but were certainly opposed to the establishment of a communist régime

in Yugoslavia. Their leaders were systematica lly eliminated or sent to camps and their overall

leader, GeneralMihailovic, a hero of the war of liberation and companion of GeneraldeGaulle,

was executed. However, MarshalTito had much more difficulty in suppressing Slovene, Muslim

and above all Croat nationalist sentiment. This is not the place for a discussion of the numerous

terrorist attacks by Croat nati onalists on Yugoslav diplomats ever ywhere in the world throughout

the life of Titoist Yugoslavia. However, such Croat armed opposition has always existed, and the

events of 1990 clearly show that Tito neve r succeeded in suppressing Croat nationalism as

expressed in 1971 during the notorious Croat spri ng, which was only one among many short-lived

springs in Eastern Europe. Although these even ts are of limited relevance to our case we should

46
remember that, as TimJudah noted in his book , the events of 1990 show that what happened in

1971 was the dress rehearsal for what would ha ppen in 1990. The Applicant passes over these

events in complete silence. It overestimat es Serb nationalism and attempts to belittle other

nationalisms, which were in truth far more pr evalent in communist Yugoslavia than Serb

nationalism, and which indeed led to the break-up of Yugoslavia.

46
Tim Judah, The Serbs, History, Myth and the Destruction of Yugoslavia , Yale Nota Bene Book, 2nd edition,
2000, p. 146. - 28 -

241. As regards recent events, the Applicant seeks to demonstrate Serb nationalism and the

wish to create a Greater Serbia on the basis of a document that was much cited during these black

38 years, the Memorandum of the Serbian Academy of Arts and Sciences (Memorial, para.2.3.1.3).

This document is notorious for the way it was manipulated throughout the civil war. It is not a

political document or a document of the Government of Serbia and Montenegro. It is a joint

document from the Serbian Academy of Sciences whic h was no more than a reaction to the rise of

nationalism, mainly in Slovenia and Croatia, because that is where the events began ⎯ do not

forget that the events began with the Slovenian revolt, then the Croat demand for independence.

Moreover, this document is no more than a discussion paper regarding Serbia’s own territory.

242. In a very general way the Applicant targets SlobodanMilosevic’s speeches. It is

difficult to argue about these speeches today because the former President died before the end of

his trial and no one knows what the outcome would have been. Let us simply say that in 1991

Slobodan Milosevic, the head of the communist ré gime, endeavoured to hold onto Yugoslavia

within its frontiers and within its political régi me and failed. The Constitution of Yugoslavia was

extremely complicated. If I may put it that way, Marshal Tito had tied things up very nicely. The

Constitution certainly authorized self-determination and secession by the peoples ⎯ the founding

peoples. However, the constituent republics were not granted this right. And it was this

constitutional ambiguity that led the Serbs of Bo snia to oppose the secession of the entire republic

because that right of secession belonged to the people , and it was clear that they were about to get

involved in a war of secession. Hence the Serb s protested against the secession of the entire

republic, which was not the secession of a people ⎯ just as they protested against the Croat

secession, because constitutionally and legally the two founding peoples of Croatia were the Serbs

and the Croats. As we will see again shortly: no one asked the Serb people for their opinion.

243. But above all the Applicant forgets that at this time nationalistic speeches were not a

Serb speciality. Well before the 1990s ⎯ in what was doubtless a long-standing tradition ⎯ the

Croats began to demand a pure Croat race. Thus during his election campaign in 1989

PresidentTudjman stated publicly ⎯ and this is still widely remembered ⎯ that he thanked God

that his wife was neither Jew nor Serb! - 29 -

244. The notorious Islamic Declaration writte n by President Izetbegovic, also in 1971 ⎯

what a spring that was! ⎯ expressed his desire to create an Islamic State uniting all Muslim lands.

39 He called for the creation of a vast Muslim commun ity: “the implementation of Islam in all fields

of individuals’ personal lives, in family and in so ciety, by renewal of the Islamic religious thought

and creating a uniform Muslim community from Morocco to Indonesia.” And he adds:

“There can be no peace or coexistence between the ‘Islamic faith’ and
non-Islamic societies and political institutions. Having the right to govern its world
itself, Islam clearly excludes the right a nd possibility of activity of any strange

ideology on its own turf. Therefore, there is no question of any laicistic principles,
and the State should be an expression and should support the moral concepts of the
religion.”

Of course, one can understand these remarks, but on e can also understand the anxiety of Catholics

and Orthodox Christians accustomed to living in a secular State.

245. In this context the speeches of Slobodan Mi losevic cited by the Applicant, which were

intended for the Serbs of Serbia, may seem quite moderate. In any event they contain no genocidal

intent.

246. Other speeches cited by the Applicant were not delivered by the leaders of Serbia and

Montenegro but by Serbs of Bosnia, who were belli gerents, and they cannot readily be imputed to

Serbia and Montenegro because they emanate from individuals who certainly did not belong to the

same party as that in power in Belgrade. Th ese speeches by Bosnian Serbs were made in a

situation of conflict that was political first be fore becoming military. Admittedly they often go

much too far! Unfortunately, they reflect the situ ation existing in Bosnia and Herzegovina at the

time. As regards the speeches of Brdjanin cited by the Applicant, for which he was convicted, and

which were held to be incitements to persecution, it should be made clear that Brdjanin was not

convicted of genocide but of the crime of incitement to persecution, which is not the same thing. I

simply wish to stress that Brdjanin had nothi ng to do with Serbia and Montenegro; he was a

Bosnian Serb, born in Bosnia, whose parents had been killed by Croat forces during the Second

World War. So Brdjanin is a pure national of Bosnia and Herzegovina, immersed in the unhappy

history of that country. - 30 -

40 (d) The beginnings of the armed conflict

247. Acts of war, characterized as genocide by the Applicant, Bosnia and Herzegovina, were

committed in the territory of Bosnia and Herze govina as part of a conflict involving from 1992

three clearly defined entities: a Croat entity, a Muslim entity and a Serb entity. These

corresponded to what were constitutionally and le gally called in Yugoslavia the three founding

peoples of the State. May I remind you that under the Constitution each of these three founding

peoples had, as a people, a constitutional right of self-determination. Later the conflict would

become more complex and intense because of the split in Izetbegovic’s party over Bihac, which we

have already discussed.

248. Thus the referendum of 29February 19 92 on Bosnia and Herze govina was not about

the choice of the founding peoples as such, but about a State seeking to efface the distinction

between its constituent peoples, and that is why the proclamation of the independence of Bosnia

and Herzegovina as such was preceded by the pr oclamation of Republika Srpska, i.e. the Serb

Republic of Bosnia, which, anticipating the i ndependence of Bosnia and Herzegovina from the

Yugoslav Federation, was detaching itself from Bosn ia. We can discuss the reasons for this action

by the Bosnian Serbs, as we can discuss the reasons that led the Croats and Muslims to the decision

to hold a referendum on independence against the ex pressed wish of the Serbs, who, may I remind

you, accounted for a third of the population. This referendum organized by the central Government

of Bosnia and Herzegovina was obviously contrary to the Constitution of the State, because for

such a referendum it was not enough for the majority of the population to vote; what was necessary

was for the three constituent peoples to show thei r agreement. And I would remind you that we

were in the same situation when the independen ce of Croatia was proclaimed. But no agreement

could be reached on this point. The proclamati on of Republika Srpska was simply a response to

the decision by the central Government of Bosnia and Herzegovina to seek independence ⎯ a

last-ditch attempt by the Serb people to prevent the referendum and at the same time to prevent war

in Bosnia.

249. Out of this situation there arose a civ il war, the purpose of which was separation, the

secession of territories, just as the territory of Yugoslavia had just been split apart under

41 international pressure. Madam President, Members of the Court, the paradox here is that, while the - 31 -

international community accepted all of the Yugosl av nationalisms and the disappearance of this

great European State, it pressed at the same time fo r it to be reconstituted in miniature. How could

Serbs, Croats and Muslims be separated from Yugoslavia ⎯ from the Federal Republic ⎯ and how

could these three peoples who had just decided to separate from the great pan-Slav State be

suddenly pressured into freely living together in a State that was much smaller but had exactly the

same characteristics as Yugoslavia? I see this not as a legal question, but as a historical question

that we should bear in mind; the problem of nationalities and the issue of minorities arose in

comparable terms in both cases.

250. The administrative boundaries of Yugoslavia, created arbitrarily under MarshalTito’s

régime in 1945, did not respect the national entities that constituted Yugoslavia in 1918.

251. The disappearance of the first Yugoslavia in 1941 through the formation of a

Croat-Bosnian State on the initiative of the Ge rman National Socialist Government and the

extermination of Serbs in that territory between 1941 and 1945 had obviously made the question of

nationalities an extremely complex and sensitive one, which the democra tic centralism of the

communist party in power from then on had dealt with in its own way for 45years. However,

nationalist movements were never extinguished in Yugoslavia, particularly the Croat movement.

252. The desire for independence, first of Sl ovenia then of Croatia, and the proclamation of

that independence on 25 June 1991, were the starting- point of the Yugoslav conflict in the name of

the nationalism of the peoples that made up the Federal Republic.

253. The goal of the Croat war of independence was a unified Croat territory no longer

including a substantial Serb minority, or in other words no longer including a second constituent

people. The conflict in Croatia had existed sinc e the summer of 1990, and it grew worse in 1991.

The new Croat Constitution abolished all the sp ecial rights enjoyed by Serbs as a constituent

people of the Republic of Croatia, thus reducin g them to a minority that no longer had any

guaranteed rights. I can assure you that the Serbs of Croatia had no need of the Serbs of Serbia to

remind themselves of the tragedy experienced by th em in the independent State of Croatia during

42 the Second World War. What shocked them most was that in 1991 Croatia again adopted the same

symbols and the same currency as those which had seen hundreds of thousands of Serbs in Croatia

and Bosnia sent to concentration camps or ex terminated. May I remind you that in 1990 and 1991 - 32 -

(fortunately that time has passed) swastikas were freely on sale on Republic Square, the central

square in Zagreb, and there was no shortage of buyers. The transition now was from words to

deeds; employees of Serb origin in workshops, factories and businesses were being dismissed

en masse, whilst the streets were being renamed.

254. It might be feared that the same would happen in Bosnia and Herzegovina if the Serbs

were reduced to being a simple minority.

255. Consequently the Serbs, possibly indeed wrongly, might well have felt threatened if

they were to become a simple minority in the new republic, the more so because brutal ethnic

cleansings were a long tradition in the Balkans, reaching a peak during the Second World War,

leaving a bad taste in the mouths of Serbs in Croatia and Bosnia because they had been

systematically hunted down and massacred by the régime of Ante Pavelic, whom Franjo Tudjman

nonetheless described as: “the historical expression of the Croat people”.

256. So it is not without good reason that in 1991 the parties to this new civil war

characterized their enemies as they had done duri ng the Second World War. Each readopted a

former propaganda appellation once thought to be outworn: Ustashi for the Croat-Muslims,

Chetniks for the Serbs. Only the “partisans” disappeared with the collapse of the communist

régime; they had been the only multi-ethnic constituent of the conflict in the Second World War!

257. Thus the dismemberment of Yugoslavia, accepted if not encouraged by the international

community, was bound to lead to a bloody separation of the peoples forming the nations whose

emergence was being encouraged. If the independe nce of peoples leads to the creation of nations,

the latter still needs a cohesive territory to harbour them, and their minorities have to be tolerated

and, indeed, protected.

43 258. When a territory is weighed down by th e history of the antagonism of its peoples and

that antagonism is rooted in part in religious into lerance, it is apparent that the violence of the war

may be extreme, because that is the price of controlling the territory.

259. It is clear that Croat nationalism and Bosnian nationalism were opposed by a Bosnian

Serb nationalism that led to the creation of a sepa rate entity and the conquest by that entity of the

greatest possible area of territory. - 33 -

260. Bosnia, multi-ethnic and multicultural, so desired by the international community,

resisted neither the pressures of history nor the programmes of the communist parties in power, that

of the Muslim nationalist party (SDA) being no exce ption. The programmes of these three parties,

so mutually antagonistic that they obviously coul d not cohabit in a democratic union such as we

know in our countries, should be re-read. Each ha d armed militias available, all the easier because

since Tito the defence of Yugoslavia was based on an armed and autonomous territorial military

organization, formed into crisis cells and directed against the invader since 1948. This territorial

armament at the level of each municipality, whic hever people it belonged to, obviously gave to

each the resources for a terrible war, because ther e could be fighting from village to village,

virtually from neighbour to neighbour.

261. So it was a true civil war that erupted in a Bosnia which, while recognized by the

international community, comprised three peopl es who no longer wished to share a common

destiny. How could what had just failed elsewhere be successful here, how could peoples that had

just been separated be brought together? In 1991 17per cent of the population of Bosnia and

Herzegovina was Croat, 43.5 per cent Muslim and 31.5 per cent Serb.

262. Yugoslavia, now limited to Serbia and Montenegro, not only took no part in this war

but was to distance itself quite quickly from Repub lika Srpska, to the point of imposing sanctions

on it after 1994 because it refused the Anglo-American peace plan. Bear in mind that a delegation

at the highest level from Belgrade, led by Pres identMilosevic himself, came to Pale to the

Parliament of the Serbs of Bosnia to attempt to persuade it to ratify the Anglo-American accord

organizing the division of Bosnia and Herzegovina. Bear in mind that the Serb Parliament of

44
Republika Srpska, which has been described to you as being the puppet of Be lgrade, refused this

peaceful and sensible solution, probably wrongly but certainly with disdain, and that immediately

afterwards the Belgrade Government imposed a blockade, inter alia along the River Drina, in order

to isolate Republika Srpska still further and to induce it to accept an international solution.

263. Thus it is clear that the Serbs of Bosnia sought closer union with what they regarded as

their motherland, and which perhaps they still regard as their motherland; but to contend that the

Belgrade Government waged war on Bosnia using th e Serb minority is simply the reverse of the

truth. - 34 -

(e) The role of the JNA

264. In order to give this falsehood the ring of truth, much has been made of the federal army

of socialist Yugoslavia, to which the Applicant refers in its Memorial (para. 2.3.3.2), but the role of

the Yugoslav federal army was in the final an alysis only a consequence of the secession of

Slovenia and Croatia. After the fighting, more over, the federal army found it necessary to

withdraw from Slovenia, leaving behind its Slovenian officers and troops. It was then forced to

withdraw from Croatia after the fighting there, l eaving behind its Croatian officers and troops, so

that in fact it was, in a way, Serbianized; but it is absurd to assert, as the Applicant does, that the

purpose of this forced reorganization was to take control of Bosnia and Herzegovina. The increase

in the number of troops in Bosnia and Herzegovina was initially no more than the consequence of

the withdrawal from Slovenia and Croatia. Look at a map, there was no other route by which to

withdraw, Croatia was at war and, at the time, Bo snia was still a part of the Federal Republic of

Yugoslavia. At the time, the federal army was the regular and legitimat e army of Bosnia and

Herzegovina in the same way as it was the regular and legitimate army of Serbia. The Yugoslav

National Army, having withdrawn from Slovenia a nd Croatia, stationed itself in Bosnia and

Herzegovina in late 1991 and early 1992. It withdrew on 19May 1992, following Bosnia’s

accession to independence on 6 April 1992.

265. However, the operation did not run smoothly and, here again, I shall cite an eyewitness,

General MacKenzie, who was on the spot in Sarajevo when the federal army withdrew. That army

was the target of choice for the Muslim forces, which had already organized themselves into

territorial defence forces, as was in fact the case for the entire territory. In his book, Peacekeepers,
45

GeneralMacKenzie reports: “On or about April 12, they [Muslim Territorial Defence] had been

ordered to block the JNA’s barracks, occupy its weapons depots and communications centres and

47
attack JNA soldiers and their families with the objective of driving them from Bosnia” .

GeneralMacKenzie continues with the following d escription of even more violent events which

took place on 3 May 1992:

“The heaviest shooting was about fifty metres away. I could see TDF

[Territorial Defence Forces] soldiers s ticking their rifles through the windows of
civilian cars that were part of the convoy and shooting the occupants . . . we saw blood

47
General Lewis MacKenzie, Peacekeepers, published in Vancouver/Toronto, Douglas & McIntyre, 1993, p. 156. - 35 -

splattered over the windscreens of some of the cars. When we reached a crowd of
some twenty TDF [Territorial Defence For ces] soldiers, we realized that they had

driven a car across the road to split the convoy in half. The JNA soldiers were sitting
helplessly in the back of their trucks, the TDF were demanding that they throw out
their weapons and military equipment. To make the point one of the TDF soldiers
who had two grenades hanging from his teeth, was threatening to throw a third into the

back of the truck full of JNA soldiers if they didn’t hurry up and surrender their
weapons. Weapons and kit were flying out the back of the truck and landing all
around the TDF soldiers.” 48

This is what happened in Sarajevo during the evacuation of the federal army.

266. After losing first its Slovenian officers a nd troops, then its Croatian officers and troops,

and finally its Bosnian officers and troops, th e federal army obviously became much more

homogeneous, much more Serbian. Thus, Tihomi rBlaskic, a Bosnian Croat officer, joined the

Croatian army in Bosnia as a colonel and rose to the rank of general; SeferHalilovic, a Serbian

Muslim, joined the Muslim army of A liIzetbegovic as a general. And unlike

GeneralRatkoMladic, who is admittedly a Serb, but comes from Bosnia and Herzegovina,

Sefer Halilovic is not from Bosnia and Herzegovina. He also comes from Serbia.

267. With regard to the arming of the Serbs, to which the Applicant refers in its Memorial

(Sec.2.3.4), this operation took place under th e same circumstances as the arming of the entire

population of Bosnia and Herzegovina, incl uding Croats and Bosnians. Moreover,

General Sefer Halilovic, the Chief of Staff of the army of Bosnia and Herzegovina, who has written

46 a very insightful book called Cunning Strategy, explains how the Muslims were armed, how they

went to Croatia for training and how they orga nized themselves into the Patriotic League, which

later became the army of Bosnia and Herzegovi na. All these events, which were in fact

preparations for war ⎯ the Patriotic League was created well before the start of the war ⎯ took

place in 1991, at a time, therefore, when Bosn ia and Herzegovina was still a Yugoslav federal

State. However, the Applicant’s Memorial str esses the arming of the Serbs and seeks to conceal

the fact that the arming of the population was a widespread phenomenon in Bosnia and

Herzegovina in the 1990s.

268. The federal army withdrew from Bosn ia when that territory proclaimed its

independence. The Respondent will not deny that a part of the army stationed in Bosnia remained

in Bosnia as an organ of Republika Srpska. Howe ver, contrary to the Applicant’s allegations

48
General Lewis MacKenzie, Peacekeepers, published in Vancouver/Toronto, Douglas & McIntyre, 1993, p. 168. - 36 -

(Memorial, para.2.3.6.1), the federal army did not become the army of RepublikaSrpska. It is

important to point out that, in the Yugoslavia that had just been dissolved, while it is true that

people possessed federal Yugoslav nationality, ever y individual also and compulsorily had the

nationality of one of the component republics of federal Yugoslavia. Military personnel who

became members of the army of Republika Srpska possessed Bosnian nationality, and they quite

simply remained in the Republic to which they belonged, because they were not Serb citizens but

belonged to one of the founding peoples of Bosnia.

269. The Applicant’s entire assessment of th e organization and functioning of the army of

Republika Srpska (Memorial, paras. 2.3.6.6 to 2.3.6. 7) is flawed, since it fails to mention the most

important fact about that army. Thus, while GeneralMladic, a native of Bosnia, was indeed

appointed Commander-in-Chief of that army, he was appointed Commander-in-Chief not by the

Belgrade Government but by the Supreme Command er of the army of Republika Srpska, who was

RadovanKaradzic. That is not really quite the same thing, and one clearly sees how the federal

army’s links with its officers of Bosnian Serb origin, who remained behind in Republika Srpska,

were cut, in the same way as its links with officers of Croatian or Slovenian or Bosnian origin were

cut. Clearly, therefore, it cannot be claimed, ju st because elements of the federal army became the

47 army of Republika Srpska on account of their origins, that the army of Republika Srpska was under

the orders of Belgrade; it was unde r the orders of GeneraMl ladic and

President Radovan Karadzic.

270. These acts can in no way constitute complicit y in genocide, since, for that to be the

case, genocide would have to be committed, and at the time when these splits in the army occurred,

no act of war had yet been committed on the territory of Bosnia, with the exception of those I have

cited, which took place in Sarajevo.

(f) The strategic plan

271. The Applicant makes frequent reference to the strategic objectives of the Serbs in

Bosnia or the Bosnian Serbs in order to demonstr ate the existence of a genocidal plan alleged to

link the Bosnian Serbs with Serbia and Montenegro. - 37 -

272. The Assembly of the Serbian People of Bosnia did indeed, on 12May1992, adopt

strategic objectives which were not concealed, were not the subject of a covert plan, since they

were simply published in the Official Journal of Republika Srpska. The Applicant has made a

number of references to the strategic objectives of the Serbian people of Bosnia. I shall therefore

repeat them:

1. Establish State borders separating the Serbian people from the other two ethnic communities.

2. Set up corridor between Semberija and Krajina.

3. Establish a corridor in the Drina Valley, th at is eliminate the Drina as a border separating

Serbian States.

4. Establish a border on the Una and Neretva Rivers.

5. Divide the city of Sarajevo into Serbian and Bosnian Muslim parts and establish effective State

authorities in both parts.

6. Ensure access to the sea for the Republika Srpska.

273. It should be noted first of all that these strategic objectives do not include the

elimination of the Bosnian Muslim population. Ther e is an intent to separate, but no intent to

destroy, since reference is made to dividing the town of Sarajevo between the Serbs and the

Bosnian Muslims, and establishing State authorities in both parts. Hence, what we clearly have

here is what I have been telling you since the be ginning of my presentation, what we clearly have

48 here is a strategy of secession of territories and secession of peoples, rather than a strategy of

extermination. One cannot, therefore, use war aims clearly expressed in this way to prove a

genocidal intent –– moreover a genocidal intent on the part of Serbia and Montenegro, which was

obviously not party to the war aims of Republika Srps ka. It is true that these principles were at

variance with the inviolability of borders and the territorial integrity of a State which had just been

recognized internationally. One could say that this political programme was in breach of

international law, but in no sense did these objectiv es constitute a call to genocide, they were not

genocidal.

274. These strategic aims were analysed in sev eral cases before the Tribunal for the former

Yugoslavia, particularly in the Brdjanin, Galic and Stakic cases, but in none of those cases was this

strategic plan ⎯ which was discussed at great length ⎯ ever characterized as genocidal, and in - 38 -

none of those cases were the persons who were involved in devising these strategic objectives, as in

the case of Brdjanin, or in implementing them, as in the case of Stakic and Galic, convicted of

genocide.

275. In respect of Srebrenica, the Applicant c ites objective 1, that is to say the establishment

of borders separating the Serbian people from the other ethnic communities in Bosnia and

Herzegovina, and objective3, elimination of th e border between Bosnia and Herzegovina and

Serbia on the river Drina, in order to establish a genocidal intent which resulted in the Srebrenica

tragedy in 1995. The Appeals Chamber of the Tr ibunal for the former Yugoslavia examined the

events at Srebrenica on several occasions, and accepted the Prosecutor’s argument ⎯ and since this

is the only finding of genocide, this point is therefore important , because the Prosecutor identifies

the starting date of the genocidal intent in this case ⎯ “a firm plan to kill the Muslim men of

49
Srebrenica was formed as early 12July1995” . Thus, the judges of the Tribunal for the former

Yugoslavia, in the only case where ⎯ in the circumstances I have described to you ⎯ they used

the concept of complicity in genocide, identified 12July1995 as the starting date for genocidal

intent, so that the strategic plan of the Bosnian Serbs has nothing at all to do with the genocidal

intent established by the Tribunal.

49 276. The Applicant would also have us believe that a directive from the Supreme Command

of the armed forces of Republika Srpska, dated 8 March 1995, sets out the genocidal plan. At the

hearing on 28February2006, the Applicant cite d part of this directive: “Planned and

well-thought-out combat operations and they need to create an unbearable situation of total

insecurity with no hope of further survival or life for the inhabitants of both enclaves.” The

Applicant goes on: “As a result of this directive, General Ratko Mladic on 31 March 1995 issued a

Directive for Further Operations... No.7/1, wh ich further directive speci fied the Drina Corps’

tasks.” At the sitting of 2 March 2006, Professor Fr anck asked: “What could be a more clear-cut

definition of the genocidal intent to destroy on the part of the authorities in Pale?”

277. Well, the judges of the Appeals Chamber of the Tribunal for the former Yugoslavia did

not and do not share the opinion you heard expressed by Professor Franck. In the Krstic case, the

49
Krstic case, Appeals Chamber, Judgement, 19 April 2004, para. 93. - 39 -

Appeals Chamber held: “Directives 7 and 7.1 are in sufficiently clear to establish that there was a

genocidal intent on the part of the members of th e Main Staff who issued them. Indeed, the Trial
50
Chamber did not even find that those who issu ed Directive 7 and 7.1 had genocidal intent.” This

clearly means that, after examining these directiv es cited by the prosecution, the Appeals Chamber

of the Tribunal for the former Yugoslavia held that they contained no indication of genocidal

intent.

278. And it was with full knowledge of the fact s that the Tribunal dismissed charges of

genocide in virtually all its cases, and upheld only complicity on the part of General Krstic and

GeneralBlagojevic in the Srebrenica cases, relying ⎯ as I said before ⎯ on a concept of

complicity which is not the one contained in the Convention, but which is set out in Article 7 of the

Tribunal’s Statute.

279. In no other case did the Tribunal make a finding of genocide. For example, in the

Brdjanin case in particular, which was related to the ev ents in Bosanska Krajina, and in which the

Tribunal examined the expressed and actual policy of the Serbian party, the objectives of that

policy, and in particular the strategic objectiv es which have been portrayed to you as a genocidal

plan, the Tribunal held that it could not, on the basis of that plan, establish that there had been

genocide. The Tribunal failed to establish genocid e precisely because, in case after case, tragedy

50 after tragedy, it had an overall picture of the war. An overall picture which demonstrates the full

scale of the tragedy of the peoples of Bosnia a nd Herzegovina, a tragedy known as war, a tragedy

with many criminal features, but not one involving genocide.

280. The best example of the Tribunal’s position on the policy aspect, the aspect of

genocidal intent as a policy, is its judgment in the case of Ms Biljana Plavsic. Ms Biljana Plavsic is

probably the most senior political figure from Republika Srpska to have been tried by the Tribunal.

She was a member of the Presidency of the Repub lic, she had produced a large number of written

materials used in evidence against her, and she w as convicted of crimes against humanity. But the

Tribunal did not find that Biljana Plavsic ⎯ accused of crimes committed throughout the territory

of Bosnia and Herzegovina under Bosnian Serb control ⎯ had committed the crime of genocide.

50
Krstic case, Appeals Chamber, Judgement, 19 April 2004, para. 90. - 40 -

Bear in mind the most authoritative definition given by the Secretary-General of the United Nations

concerning the crime of genocide: when it is poli tical in nature, it must be charged to the most

senior perpetrator, the most senior decision maker. MsBiljana Plavsic is one of the most senior

decision makers to have been convicted by the Tribunal for the overall policy conducted by

Republika Srpska. She was not convicted of genocide.

281. Thus the Applicant’s argument that the multitude of crimes tried and examined

individually together constitute genocide is misconceived. It is not the number of crimes, it is not

the grisly nature of the crime, that constitutes ge nocide. Only the intent to destroy a national,

ethnical, racial or religious group, in whole or in part, can raise a crime to the level of genocide.

And it is therefore this moral element, this element of intent, which must be the yardstick.

282. Having determined the material element of the crime of genocide and the forms that

involvement in its commission may take, we must address the particularity which sets genocide

apart from any other crime. That particularity is the requirement of a specific intent, the

requirement that the crime of genocide be committed with the intent to destroy, in whole or in part,

a national, ethnical, racial or religious group, as such.

283. Let us therefore examine the concept of genocidal intent and the possibility of

attributing such intent to individuals alle ged to have committed genocide in Bosnia and

Herzegovina and to have engaged the responsibility of Serbia and Montenegro.

284. First of all, the tangible elements of such specific intent are clearly the following:

51 ⎯ identification of the national, ethnical, racial or religious group which is the subject of the

genocidal plan (i);

⎯ the total or partial destruction of the group targeted (ii); and

⎯ lastly, the degree of genocidal intent, in its moral and psychological form (iii).

(i) Determination of the national, ethnical, racial or religious group

285. Genocide is not a criminal act targeting an individual, nor is genocide directed against a

State, it is directed against a group defined on the basis of national, ethnical, racial or religious

criteria. Genocide constitutes the negation of the specific right to exist of a human group identified

on the basis of specific criteria. Consequently, the group must be precisely defined and have its - 41 -

own specific existence. As the IC TR held in its judgment in the Akayesu case, the victim of the

crime of genocide is the group itself 51. For this reason, it is for the Applicant clearly to define the

group subjected to genocide. But in the instan t case, it has to be said that the group always

remained somewhat ill-defined.

286. Some writers have criticized the Genocid e Convention for not defining with sufficient

clarity what is meant by a “group” under the Convention. The Whitaker report stated that the lack

of clarity in the definition of the group had the effect of reducing the effectiveness of the

52
Convention .

287. In order to define as precisely as possi ble the concept of “protected groups” under the

Genocide Convention, it should first be said that the list of protected groups, that is to say national,

ethnical, racial or religious groups, is an exhaus tive one. The text of the Convention should be

interpreted in accordance with the principles of crimin al law. A strict interpretation is required.

The list of groups identified in Article II of the Convention must be considered to be exhaustive.

53
288. It would appear from a reading of the travaux préparatoires of the Convention that the

crime of genocide was perceived as capable of targeting only “stable” groups, constituted in a

52 permanent fashion, and membership of which is determined by birth, excluding more “mobile”

groups, which one joins, for example, through individual voluntary commitment, such as political

or economic groups.

28he. travaux préparatoires of the Convention show that political groups are explicitly

excluded from the framework of the Convention. Not retained at the draft stage when submitted to

the General Assembly by the Secretary-General b ecause of their “lack of permanence”, political

groups were included under protected groups in the ad hoc committee’s draft document by a

narrow majority in 1948 5. The reference to political groups was, however, again rejected in the

55
final draft prepared by the Sixth Committee of the General Assembly .

51ICTR, Akayesu case, Judgement, 2 September 1998, para. 521.
52
United Nations, Whitaker Report on Genocide, 1985, para. 30.
53
United Nations, Official Records of the General Assembly, Sixth Committee, Summary Records,
21 September-10 December 1948.
54United Nations, doc. E/794, 24 May 1948, pp. 13-14.

55United Nations, doc. A/C6/SR 69, p. 5. - 42 -

290. This view of the matter is confirmed by the statutes of the international courts

responsible for trying the crime of genocide, all of which have adopted word for word the

definition in the Convention, without extending its scope to political or other groups. The

jurisprudence of the Tribunal for the former Yugoslavi a adds weight to this interpretation, since, in

the Jelisic case, Trial Chamber I held that “Article 4 of the Statute protects victims belonging to a

national, ethnical, racial or religious group and excludes members of political groups” 56.

291. The concepts of nation, ethnicity, race and religion have been the subject of a great deal

of research. As the law stands at present, no precise definitions are generally and universally

accepted. Each of these concepts much be assessed in the light of a given political, social and

cultural context.

292. In the Akayesu case, Trial Chamber I found:

“Therefore, a common criterion in the four types of groups protected by the

Genocide Convention is that membership in such groups would seem to be normally
53 not challengeable by its members, who belo ng to it automatically, by birth, in a
continuous and often irremediable manner.” 57

293. The common criterion applicable to all groups is quite clearly that of automatic

membership, excluding any volition. Trial Chamber I of the ICTR, in that same case, defined the

constituent elements of each of the protected groups by reference to the criteria to be met by each

of them if they were to be protected by the Genocide Convention.

294. Thus international jurisprudence has de fined the different groups mentioned in the

Convention as follows:

⎯ a national group , defined on the basis of this Court’s Judgment in the Nottebohm case

(Nottebohm, Second Phase, J udgment, I.C.J. Reports 1955) , was defined as a collection of

people who are perceived to share a legal bon d based on common citizenship, coupled with

reciprocity of rights and duties;

⎯ an ethnical group is defined as a group whose members share a common language or culture;

⎯ the definition of a racial group is based on hereditary physical traits, often identified with a

geographical region, irrespective of linguistic, cultural, national or religious factors; and

56
ICTY, Prosecutor v. Jelesic, case No. IT-95-10-T, Judgement, 14 December 1999, para. 69.
57
Akayesu case, Judgement, para. 511. - 43 -

⎯ a religious group is one whose members share the same religion, denomination or mode of

58
worship .

295. In the context of the present case, it is therefore necessary to determine the national,

ethnical, racial or religious group protected by the Genocide Convention which Serbia and

Montenegro allegedly sought to destroy.

With your permission, Madam President, we sha ll take up this latter point in this afternoon’s

sitting.

54 The PRESIDENT: Yes, certainly, Maître de Roux. Thank you.

The Court will now rise and we shall resume at 3 o’clock this afternoon.

The Court rose at 1 p.m.

___________

58
Akayesu case, Judgement, paras. 512-515.