I
InternatIonal court of JustIce
case concernIng
theapplIcatIon of the conventIon
on the preventIonand punIshment
of the crIme of genocIde
(croatIav.serBIa)
REPLY
OFTHE REPUBLIC OF CROATIA
volume 1
20 decemBer 2010
KaZalo_cro rep_1.indd 1 12/15/2010 2:29:41 am II
KaZalo_cro rep_1.indd 2 12/15/2010 2:29:41 am III
CONTENTS
CHAPTER 1: INTRODUCTION 1
Introduction 1
section I: overview 1
section II: structure of reply 5
PART I: FACTUALELEMENTS
CHAPTER 2: ISSUES OF PROOF 11
Introduction 11
section I: Burden of proof
12
section II: standard of proof 12
the duties to prevent and punish genocide – different
standard of proof 13
Indifference: proof of special Intent 14
section III: methods of proof 17
generalapproach 17
relevance of findings of the IctY 19
admissibility of documentary evidence presented by the 24
application
the respondent’sapproach to proof 31
the respondent’s duty to provide an explanation
40
the respondent’s refusal to disclose material evidence 42
CHAPTER 3: THE HISTORICALAND POLITICAL
BACKGROUND 45
Introduction 45
section I: the rise of nationalism 48
the rise of serb nationalism 49
thealleged revival of croatian nationalism 53
thealleged hate speechagainst the serbs 55
KaZalo_cro rep_1.indd 3 12/15/2010 2:29:41 am Iv
In pursuit of greater serbia: serbia’s efforts to expand its
Borders 59
the hdZ government and itsallegedly discriminatory
policies 64
theallegations of mass dismissals are
unsubstantiated 64
the allegation that constitutional changes were
discriminatory is a misrepresentation of the facts 65
theallegation of Illegalarming is misleading
68
section II: Instrumentalization of the serbs and the serb
rebellion in croatia 68
escalation of the crisis and the serb referendum 72
the Illegal proclamation of the rsK 76
section III: dissolution of the sfrY 77
the role of the Jna Including its alleged “Buffer
Zone” policy 77
the dissolution of the sfrY and the collapse of the
sfrY presidency 79
the takeover of the sfrY presidency by serbia 81
the takeover by other federal Institutions by
serbia 85
human rights violations in croatia 86
section Iv: the role of the International community
90
the Involvement of the united nations: unprofor 91
conclusion 93
CHAPTER 4: THE JNAAND THE PARAMILITARY
GROUPS 95
Introduction 95
the transformation of the Jnainto a serbiaarmy 100
the restructuring of the Jna to secure serbianisation
and the pursuit of serbian political goals 102
the senior command of the Jna in the Build up to
genocide 103
further evidence of serbianisation of the Jna 104
serb/Jna command and control over the armed forces of
the serbautonomous regions 107
KaZalo_cro rep_1.indd 4 12/15/2010 2:29:41 am v
the Jna’s role in the lead-up to genocide 110
‘Biased peacekeepers’: the role of the Jna 113
the sfrY presidency’s lack of control over the Jna 117
The JNA's engagement in the genocidal conflict 119
the role of the serbian and montenegrin to 120
relationship between the Jnaand the armed forces in
rebel serbareas in croatia 123
volunteers and paramilitary formations 128
Illegal arming of serb rebels by the Jna 135
conclusion 140
CHAPTER 5: GENOCIDALACTIVITIES IN
EASTERN SLAVONIA 143
preliminary observations
143
Introduction 143
the structure of chapters 5 and 6
144
the IctY case law 144
the serbian case law
144
additional Jnadocuments 145
exhumation data
146
tenja 147
dalj 150
Berak 157
Bogdanovci 159
Šarengrad 160
Ilok 161
tompojevci 162
Bapska 163
tovarnik 165
sotin 166
lovas 167
tordinci 171
vukovar 172
conclusion 179
KaZalo_cro rep_1.indd 5 12/15/2010 2:29:41 am vI
CHAPTER 6: GENOCIDALACTIVITIES IN THE
REST OF CROATIA 181
Introductory remarks 181
section I: Western slavonia 181
municipality of pakrac 181
municipality of podravska slatina 185
municipality of daruvar 188
section II: Banovina
190
municipality of glina 190
municipality of petrinja
192
municipality of dvor na uni 194
municipality of hrvatska Kostajnica
195
respondent’s general comments on Banovina 202
section III: Kordun and lika
203
municipality of vrginmost 203
municipality of slunj 203
municipality of ogulin 208
municipality of Karlovac 212
Municipality of Otočac 213
Municipality of Gospić 214
municipality of titova Korenica 214
Municipality of Gračac 218
section Iv: dalmatia 219
municipality of Šibenik 219
municipality of drniš 219
municipality of Knin
221
municipality of obrovac 227
municipality of Benkovac
229
municipality of Zadar 230
municipality of sinj 234
dubrovnik 236
conclusions 241
KaZalo_cro rep_1.indd 6 12/15/2010 2:29:41 am vII
PART 2: LEGALELEMENTS
CHAPTER 7: JURISDICTION OVER EVENTS PRIOR
TO 27APRIL1992 243
Introduction 243
section I: temporal scope of the genocide convention:
substantive provisions and compromissory clause 244
the genocide convention regulates an existing crime 244
temporal scope of jurisdiction pursuant toarticle IX 248
section II: Invocation andattribution of conduct 253
croatia’s date of Independence is Irrelevant to its
Invocation of responsibility under the convention 254
as a self-proclaimed continuator of sfrY at the
relevant time (for this case), and as a state in
statu nascendi, serbia bears responsibility under
conventions for conductattributable to it under
International law 257
serbia’s self-proclaimed continuity with regard
to the sfrY 257
attribution of pre-april 1992 conduct to the
frY, now serbia 261
application of Ilcarticle 10(2) and the
jurisdiction of the court underarticle IX of the
convention
266
section III: serbia’s 1992 declaration as anassumption of
responsibility foracts prior to 27april 1992 267
conclusion 269
KaZalo_cro rep_1.indd 7 12/15/2010 2:29:41 am vIII
CHAPTER 8: THE GENOCIDE CONVENTION 271
Introduction 271
section I: mental and physical elements of the crime 272
mental element: mens rea (dolus specialis) 272
physical element: actus reus 274
“Killing members of the group”:article II(a) 274
“causing serious Bodily or mental harm to
members of group”:article II(b) 275
“Deliberately inflicting on the group conditions
of life designed to bring about its physical
destruction in whole or in part”:article II(c) 276
“Imposing measures intended to prevent births
within the group”:article II(d) 278
“forcibly transferring children of the group
toanother group:article II(e) 278
section II: conspiracy, Incitement,attempt and
complicity 278
conspiracy to commit genocide:article III(b) 279
direct and public Incitement to commit genocide:
article III(c) 280
attempt to commit genocide:article III(d) 280
complicity in genocide:article III(e) 280
section III: the obligation to prevent and punish 281
the obligation to prevent genocide 282
the obligation to punish genocide 284
section Iv: the respondent’sapproach under the
genocide convention 285
the respondent’s understanding of the nature of
Specific Intent 285
The Respondent’s Approach to Proving Specific
Intent 286
section v: conclusions 290
KaZalo_cro rep_1.indd 8 12/15/2010 2:29:41 am IX
CHAPTER 9:THE RESPONSIBILITYOFTHE FRYFOR
VIOLATIONS OF THE GENOCIDE CONVENTION,
INCLUDINGATTRIBUTION 293
Introduction 293
section I: the crime of genocide (article II) 294
the mental element: genocidal Intent 294
the elements necessary to establish genocidal
Intent 296
proof of genocidal Intent: Inference from a
consistent pattern of crimes 300
genocide and “ethnic cleansing” 302
the respondent'sadmissibility objections 303
the respondent's substantive response to the
allegations made and evidenceadduced by the
applicant 304
IctY judgments and prosecutorial decisions 304
the physical elements: genocidalacts 314
section II: crimes of conspiracy, Incitement,attempt and
complicity 317
conspiracy 318
direct and public Incitement 319
attempt 319
complicity 319
section III:attribution 321
general principles ofattribution 321
application to the facts 323
state responsibility for theacts of the Jna 325
Jnacommand and control over the to, the
Milicija Krajine, and the mup 326
Jnacommand and control of non-enlisted
paramilitary groups 328
330
the temporal Issue
section Iv: the frY is responsible for the failure to
prevent and punish the violations ofarticles II and III of
the convention 331
failure to preventacts of genocide 331
failure to punishacts of genocide
335
KaZalo_cro rep_1.indd 9 12/15/2010 2:29:42 am X
PART III: COUNTER-CLAIM 341
CHAPTER 10: FACTUALBACKGROUND: CROATIA
AND THE RSK/SERBIA 341
Introduction 341
section I: preliminary Issues 344
section II: factual Background 346
Introduction 346
the deployment of the unprofor and the creation
of the unpas and pink Zones 347
liberation of miljevci plateau 349
the continuing support of the frY/serbia for the
‘rsK’ 350
continuing human rights violations faced by croats
in the rebel serb occupied territories 353
serbian non-compliance with the vance plan
continues 356
the continuation of hostilities – 1993 358
operation Maslenica 360
the medak pocket 362
section III: continuing efforts toarrive at a peaceful solution 366
the daruvaragreement of february 1993
366
Rebel Serbs Strive for Unification with Serbia and the
rs 368
the end of the unprofor mandate 369
section Iv: operation Flash, may 1995 375
the summer of 1995:after operation Flash 385
the alleged acceptance of the Z-4 plans by the rebel
serbs 387
conclusion 389
KaZalo_cro rep_1.indd 10 12/15/2010 2:29:42 am XI
CHAPTER 11: OPERATION STORM 393
Introduction 393
section I: the continuing pursuit for a state forall serbs
Military Actions in Bosnia: the Bihać Crisis
the summer of 1995 395
397
developments in the ‘rsK’in 1995
The Second Bihać Crisis 399
400
theagreementat split: July 1995
July 1995: operation Ljeto-95 (summer-95) 402
402
Krajina: Inanticipation of storm
the serb strategy: to Buy time 404
405
section II: planning for the liberation of occupied territory
the meeting at Brioni, 31 July 1995 408
410
there was no agreement at Brioni to forcibly
remove the serb population
411
no discussion about directing artillery against
civilians
no plan to target fleeing civilians 412
nodiscussionatBrioniregardingthedestruction 412
of property or obstacles to return
414
section III: planning and preparation for operation Storm
final planning for operation Storm 415
416
operation Storm
sectionIv:croatiadidnotcommitgenocideduringoperation 416
Storm or thereafter
there Was no ‘deliberate Indiscriminate shelling’ 418
during operation Storm
421
the departure of the serbs was planned by the ‘rsK’
leadership
424
KaZalo_cro rep_1.indd 11 12/15/2010 2:29:42 am XII
response to the respondent’s claims about the victims
of storm 428
croatia did not target fleeing serb civilians 429
croatia did not ‘systematically’Kill the serbs that
stayed Behind 432
response to serbia’s allegations of looting and
destruction of serb property 436
croatia did not target Krajina serbs after operation
Storm 440
croatia did not Impose unreasonable obstacles
to the return of serb civilians 441
croatia’s legislative measures did not target
serbs 442
there Is no criminal Impunity for perpetrators of
crimes 444
conclusions 445
CHAPTER 12: THERE WAS NO GENOCIDEAGAINST
SERBS IN THE ‘RSK’AND NO RESPONSIBILITY OF
CROATIA 447
section I: Introduction 447
section II: the crime of genocide 447
no evidence of genocidal Intent 448
no plan or policy to destroy the serb civilian
population of ‘Krajina’ 451
the magnitude and nature of operation storm is
not evidence of genocidal Intent 454
there Was no Indiscriminate shelling, or targeted
shelling of civilian targets, at Knin of elsewhere 455
the numbers of civilian casualties Killed in hv
military operations is not evidence of genocidal
Intent 457
the displacement of serb civilians Was not the
Intention Behind operation Storm 458
croatia is not responsible for the deaths of serb
civilians fleeing in refugee convoys 460
croatia is not responsible for the Killing of serb
civilians that remained 463
KaZalo_cro rep_1.indd 12 12/15/2010 2:29:42 am XIII
croatia is not responsible for the destruction and
looting of serb civilian property
464
croatia did not Impose unreasonable obstacles
to the return of serb civilians 466
croatia did not adopt legislative measures to
deter the return of serb civilians 466
croatia is not responsible for failure to punish
acts of genocide 466
the physical element: genocidalacts
467
section III: the crimes of conspiracy, Incitement, attempt
and complicity (article III) 468
section Iv:attribution 468
section v: no evidence of failure to punish alleged
violations ofarticles II and III of the convention 468
conclusion 469
SUBMISSIONS
471
CERTIFICATION 473
KaZalo_cro rep_1.indd 13 12/15/2010 2:29:42 am XIv
LIST OFANNEXES
CONTENTS
WITNESS STATEMENTS
annex 1: Witness statement of B.A.
annex 2: Witness Statements of J.B.
annex 3: Witness statements of O.B.
annex 4: Witness statement of B.B.
annex 5: Witness statements of P.B.
annex 6: Witness Statement of M.Č.
annex 7: Witness Statements of J.Č.
Witness Statement of Ž.Č.
annex 8:
annex 9: Witness Statements of N.C.
Witness statement of M.D.
annex 10:
annex 11: Witness Statement of S.Đ.
annex 12: Witness Statements of J.Đ.
annex 13: Witness statements of I.H.
annex 14: Witness statements of M.L.
annex 15: Witness Statement of L.M.
annex 16: Witness Statements of M.M.
annex 17: Witness Statements of S.M.
annex 18: Witness Statement of M.O.
annex 19: Witness Statement of M.P. and M.B.
annex 20: Witness Statements of D.P.
annex 21: Witness statements of d.P.
annex 22: Witness Statements of O.R.
annex 23: Witness Statement of V.Š.
annex 24: Witness Statement of N.Š.
annex 25: Witness Statement of S.S.
annex 26: Witness Statement of A.V.
annex 27: Witness Statements of K.V.
annex 28: Witness Statement of M.Ž.
annex 29: Witness Statements of M.Ž.
annex 30: Confirmatory Witness Statements
KaZalo_cro rep_1.indd 14 12/15/2010 2:29:42 am Xv
DETAINED, MISSINGAND EXHUMED PERSONS DATA
annex 31: International committee of the red cross, registration
Certificate for D.Š., 3 January 1996
• commission for detained and missing persons, report on
annex 32: the Work of the commission for detained and missing
persons, 29 october 1996
annex 33: Joint serbian, croatian and International monitors record
for marinovci farm, 26 march 1997
annex 34: Internationalcommittee of the red cross, registration
Certificate for T.L., 3 April 1998
annex 35: letters from the commission for detained and missing
Persons inviting the ICTY Liaison Office, the UN High
commissioner for human rights, the osce mission to
therepublicofcroatiaandtheobservationmissionofthe
ec to send observers to the exhumation of mass graves,
27 february 1997, 9april 1998 and 7 July 2000
annex 36: letter from the IctY otp to the republic of croatia,
concerning exhumations, 25 July 2002
an• x 37: Republic of Croatia, Office for Detained and Missing
Persons, Identification Performed at the Institute of
forensic medicine and criminology, 15 november 2002
annex 38: memorandum of agreement Between the government of
the republic of croatia, and the International committee
of the Red Cross, to Define the Roles and Responsibilities
of the government of the republic of croatia and the
International committee of the red cross in view of the
transfer of the competence for the management of data
on Missing Persons in the Armed Conflicts on the Territory
of the republic of croatia, 28 July 2006
annex 39: Gospić County Court, Exhumation Report, 17 October
2006
annex 40: Internationalcommittee of the red cross, registration
Certificate for Z.T, 19 February 2009
an• x 41: updated list of missing persons, 1 september 2010
annex 42: updated list of persons detained in camps under serbian
control on the territory of the frY, Bh and croatia, 1
september 2010
• list of exhumed Bodies for sites referred to in the
annex 43: memorial
annex 44: list of exhumed Bodies foradditional sites
an• x 45: sample exhumation data
an• x 46: the tasks of participants in the exhumation process
an• x 47: serbian list of persons detained on the territory of
• serbia
KaZalo_cro rep_1.indd 15 12/15/2010 2:29:42 am XvI
MILITARY DOCUMENTS
an• x 48: general staff of the armed forces of the sfrY, manual for
the operation of commands, staffs and units of the armed
forces of the sfrY in emergency situations, 1988
an• x 49: national assembly of the republic of serbia, declaration on
the peaceful resolution of the Yugoslav crisis, against the
civil War and violence, 2april 1991
st
an• x 50: commandofthe1 milstarydistrict,orderfortheengagement
of forces of the 1 military district in slavonia, 8 July 1991
an• x 51: sao Krajina, order on the submission of a Written report on
War operations as of 26 June 1991, 22august 1991
an• x 52: Jna, 5 Corps., Order to set up Camp Manjača, 13 September
1991
annex 53:
• SAO Krajina, Order No. 24-175, Col. Rade Orlić, 20 September
1991
an• x 54: sao Krajina, order no. 24-175, col. dušan Kasum et al., 20
september 1991
an• x 55: SAO Krajina, Order No. 24-175, Col. Miloš Malobabić, 20
september 1991
an• x 56: SAO Krajina, Order No. 24-175, Kamenko Popović, 20
september 1991
an• x 57: SAO Krajina, Order No. 24-175, Savo Savanović, 20
september 1991
an• x 58: sao Krajina, order no. 24-175, col. radevujaklija et al., 20
september 1991
an• x 59: sao s BWs, to order no. 3/91, 23 september 1991
annex 60: memorandum concerning hand-over of prisoners from dalj
police station, 23 september 1991
an• x 61: ultimatum Issued to the people of Bapska, 28 september
1991
an• x 62: command of the guards motorised Brigade, no. 15-1, 1
october 1991
an• x 63: documents concerning conduct ofarkan in eastern slavonia,
october 1991
annex 64: Official Note Concerning Incidents at Dalj Police Station and
acknowledgment of handover, 5 october 1991
an• x 65: decision of 2nd and 3rd operation Zone for Banovina and
Kordun, no. 9, 3 october 1991
an• x 66: command of the 1st md, no. 160-15, 9 october 1991
annex 67: Command of the 1st MD, Strictly Confidential No. 1614-82
27, 15 october 1991
annex 68: operational group south command, decision to continue the
attack operation vukovar, 15 october 1991
KaZalo_cro rep_1.indd 16 12/15/2010 2:29:42 am XvII
annex 69: operational group south command, decision of colonel
Mile Mrkšić, 18 October 1991
ann• 70: operational group south command, decision to continue
theattack operation vukovar, 29 october 1991
st
ann• 71: 1 proletarianmotostsedguarddivisioncommand,orderfor
combat of the 1 pgmd artillery commander, 29 october
1991
ann• 72: Command of OG South, Strictly Confidential, No. 464-1, 21
november 1991
ann• 73: sao Krajina, hQ of the to, no 85/91, order no. 24-272, 26
november 1991
• Confirmation Document, Supreme HQ of the SAO SBWS
annex 74: to, 13 december 1991
annex 75: Jna, 5 thcorps., order to set up camp stara gradiška, 7
January 1992
ann• 76: rsK, recommendation for extraordinary promotion, stevo
Prodanović, 23 November 1992
ann• 77: rsK, recommendation for extraordinary promotion, dušan
Saratlić, 23 November 1992
ann• 78: rsK, recommendation for extraordinary promotion, marko
Vujić, 24 November 1992
ann• 79: Internal affairs secretariat Knin, operational report, 14 July
1993
ann• 80: plan of measures andactivities in the units of the 134thlight
Brigade on developing motivation and determination of
units, soldiers and commanders for the execution of combat
missions
DOMESTIC CRIMINALPROSECUTIONS DOCUMENTS
annex 81: agreement on cooperation in the prosecution of perpetrators
of War crimes, crimes against humanity and genocide
Between the chief state attorney of the republic of croatia
and the War crimes prosecutor of the republic of serbia, 13
october 2006
ann• 82: Office of the War Crimes Prosecutor, District Court in
Belgrade, War crimes chamber, Indictment against ljuban
devetak et al., 28 november 2007
ann• 83: decision of the state Judicial council of the republic of
croatia sp-23 07, 8 July 2009
annex 84: Dubrovnik County State Attorney’s Office, Indictment against
Jevrem Cokić et al., 10 november 2009
ann• 85: split county court, statement by court president, ante
Perkušić, on the Progress of Proceedings in the Lora case, 2
July 2010
KaZalo_cro rep_1.indd 17 12/15/2010 2:29:42 am XvIII
Split County Court, Statement by Judge Spomenka Tonković,
annex 86: on the proceedings in the Lora case, 2 July 2010
annex 87: Sisak County Court, Statement by Judge Melita Avedić on
the criminal caseagainst Jakov velemir, 2 July 2010
an• x 88: letter from split county court Judge, slavko lozina, to the
president of the county court in split, 5 July 2010
annex 89: Karlovac County Court, Office of the President, Overview
of the Karan proceedings, 13 July 2010
annex 90:
• State Attorney’s Office of the Republic of Croatia, Report
on activities relating to War crimes proceedings, 30
september 2010
an• x 91: extracts from the criminal codes of the sfrY, serbia and
croatia
UN DOCUMENTS
annex 92: reportofthesecretary-generalpursuanttosecuritycouncil
resolution 721, 11 december 1991
an• x 93: unprofor, coded cable from general statish nambiar
to marrack goulding, 14 september 1992
annex 94: unprofor, coded cable from general statish nambiar
to marrack goulding, 19 september 1992
annex 95: unprofor, letter from cedric thornberry to prime
Minister Milan Panić, 21 October 1992
OTHER DOCUMENTS
annex 96: Josip macan, “chronological narrative of the events on the
dam since occupation until the mining”, 17 september
1991
an• x 97: lovas community council, pass permitting movement for
Đuka Radočaj, 19 October 1991
an• x 98: list of persons from the village of Berak Imprisoned in
an Improvised Camp in Berak, Radićeva 6 in the Period
Between 2 october 1991 and 13 december 1991
annex 99: Report from Helsinki Watch to President Slobodan Milošević
and General Blagoje Adžić, 21 January 1992
annex 100: philip cohen, “serbian anti-semitism and exploitation of
the holocaust as propaganda”, 20 July 1992
annex 101: Mladen Marcikić etal.,“civilianmassacreindalj”,Croatian
Medical Journal, vol. 33, War suppl. 1, (1992), pp. 29-33
annex 102: rsK, Knin district court, crime scene report on the
Occasion of the Death of Pavao Parać, 5 February 1993
an• x 103: Marin Vilović etal.,“factsandestimatesoftheconsequences
Resulting from Mining of the Peruča Dam by Serbian Forces
on January 28, 1993”, Croatian Medical Journal, vol. 34(4)
(1993), pp 280-284
KaZalo_cro rep_1.indd 18 12/15/2010 2:29:42 am XIX
an• x 104: Ilok town council, list of civilians fallen in the War of
Independence Before 17 october 1991, 7 november 1995
annex 105: Ilok town council, list of civilians fallen in the War of
Independenceafter 17 october 1991, 7 november 1995
annex 106: r. de la Brosse, “political propaganda and the plan to create a
‘state for all serbs’ – consequences of using media for ultra-
nationalist ends”, report compiled at the request of the otp
of the IctY, 4 february 2003
annex 107: letter from the head of administration of the dubrovnik-
neretva police to the head of the crime police administration
Zagreb, 1april 2010
annex 108: letter from the council for succession to military property to
the ministry of Justice, 23 november 2010
annex 109: letter from the head of the crime police directorate to the
Head of the Office for Cooperation with International Criminal
courts, 1 december 2010
annex 110: Zvonimir Sever, “Consequences if the Peruča Dam was
destroyed”, elektroprojekt
MAPS, PHOTOGRAPHSAND MEDIA
annex 111: Extract from A. Miletić, Koncentracioni logor Jasenovac
[Jasenovac concentration camp], vol. III, 1987, Belgrade, p.
573
• “truce in croatia on edge of collapse”, The New York Times,
annex 112: 20august 1991
annex 113: exhibition sites of “The Dead Open the Eyes to the Living”
• excerpt of transcript, “the unit” serbian television
annex 114: documentary (B92 network)
annex 115: excerpt of transcript, “Bloody grape harvest”, serbian
television documentary (B92 network), July 2007
COUNTER-CLAIMANNEXES
an• x 116: report on the shelling of civilian targets and the victims of
those shellings,april 1992 – July 1993
annex 117: letter from lieutenant general anton tus to admiral sveto
letica, 24 July 1992
an• x 118: united nations security council resolution 871, 4 october
1993
an• x 119: example of an Identity card Issued by the rsK, 26 november
1992
annex 120: rsK, minutes on the thematic session of the government of
the rsK, 6 July 1994
KaZalo_cro rep_1.indd 19 12/15/2010 2:29:43 am XX
ann• 121: sfrY, chief of personnel administration of the federal
secretariat for national defence, order no. 2-77, 22 april
1992
ann• 122: rsK, 18th corps., command no. 7-214/1, 16april 1994
• minutes of the 19 session of the government of the rsK, 31
annex 123: december 1991
ann• 124: rsK, state committee for cooperation with unprofor,
publicannouncement, 3 december 1992
annex 125: report of the secretary-general pursuant to security council
resolution 871, 16 march 1994
ann• 126: final report of the united nations commission of experts
established pursuant to security council resolution 780,
annex vII, medak Investigation, 28 december 1994
ann• 127: daruvar agreement, 18 february 1993
annex128: Igor palija, “peacemaker”, Identitet, march 2008
annex 129: rsK, decision on the constitution of the nationalassembly of
the republic of serbian Krajina and republic sprska, 24 april
1993
• rsK, proposal of the assemblies of republika srpska and
annex 130: the republic of serbian Krajina to the assemblies of serbia
and Montenegro concerning Unification in a Single State, 18
august 1994
annex 131: rsK, minutes of the session of the assembly of the republic
of serbian Krajina which approved the decision on state
Unification with Republika Srpska, 29 may 1995
annex 132: excerpt from the Interview with the svK lieutenant general
Mile Mrk šić, Vojska Krajine, 11 June 1995
annex 133: Excerpt from Franjo Tuđman, Zna se, HDZ u borbi za
samostalnost Hrvatske (It is known: hdZ in the struggle for
the Independence of croatia), Zagreb, 1993, pp. 190-195
ann• 134: excerpt from Vjesnik, (croatian newspaper), 28 december
1993
annex 135: excerpt from Večernji list, (croatian newspaper), 28 august
1994
annex 136: Excerpt from Predrag Lucić (ed.), Stenogrami o podjeli Bosne
(shorthand notes on the division of Bosnia), split, sarajevo,
2005, Book II, pp 399-448
ann• 137: rsK, military post 9138, submission of Information, 30
January 1995
annex 138: rsK, directive for the use of the serbian army of Krajina,
february 1995
annex 139: letter from colonel rade rašeta, 6 January 1995
annex 140: rsK, state fact-finding commission, report on the causes
and manner of the fall of Western slavonia, 11 July 1995
KaZalo_cro rep_1.indd 20 12/15/2010 2:29:43 am XXI
annex 141: rsK, report of the commission charged with establishing
responsibility of the military organisation for the fall of
Western slavonia, 13 July 1995
annex 142: Witness statement of I.B.
annex 143: UNPROFOR, Coded Cable, Meeting with Babić: A Proposal
for Western slavonia, 10 may 1995
council of europe, political affairs committee, memorandum
annex 144: on the visit to Zagreb and Western slavonia, 23 June 1995
anneX 1:
annex 145: Minutes of the Meeting between President Franjo Truđman,
richard holbrooke, general Wesley clark and peter galbraith,
18august 1995
annex 146: rsK, minutes of the rsKassembly, 8 february 1995
annex 147: military frontier rovince Between the habsburg and ottoman
empires, ca. 1600-1800, (vojna Krajina)
annex 148: rsK assembly, summary of the minutes of the first
extraordinary session of the rsK, Knin, 8 february 1996
annex 149: Excerpts from Mladić’s Diary, pp. 201, 203, 206, 239-240
annex 150: conclusions of the government of the republic of serbian
Krajina regarding the negotiations on the amendment of the
mandateoftheunitednationsprotectiveforceintheoccupied
parts of croatia, Knin, 30 march 1995
annex 157: letter from the secretary-generaladdressed to the president of
the security council, 7august 1995
th
annex 152: rsK, command of the 39 corps., order: problems in
the military organisation and the elimination of negative
occurrences which are one of the causes of defeat and losses
of the rsK territory, 1 June 1995
annex 153: RSK, State Information Agency, Statement of Ratko Mladić,
Knin, 30 July 1995
annex 154: General Ratko Mladić Speaking to the Media in Knin, 30 July
1995
annex 155: declaration on the Implementation of the Washington
agreement, Joint defense against serb aggression and
reaching a political solution congruent with the efforts of the
International community, split, 22 July 1995
annex 156: RSK, Office of the President of the Republic, Minutes of the
meeting between the president of the rsK and leaders of the
deputies’groups, 19 June 1995
• rsK, supreme defence council, proclamation of the state War
annex 157: throughout the rsK, 30 July 1995
annex 158: croatian Intelligence administration, situation and activities
of the svK, 30 July 1995
annex 159:
• rsK, ministry of defence, military and civil affairs sector,
regular daily report, 31 July 1995
annex 160: svK, general staff, daily report, 3august 1995
annex 161: Milan Martić speaking in Ravni Kotari, 2 August 1995
annex 162: excerpt from IctY, Prosecutor v. Slobodan Milošević (It-02-
54-t), Babic testimony, thursday, 21 november 2002
KaZalo_cro rep_1.indd 21 12/15/2010 2:29:43 am XXII
annex 163: centre for electronic surveillance, excerpts of Intercepts
between Milan Martić and Ilija Prijić, Nos. 65 (3 August
1995, 08:50), 66 (3 august 1995, 12:23), 67 (3 august
1995, 14:42)
annex 164: Dušan Viro, “Slobodan Milošević: The Anatomy of Crime”,
Profil, Zagreb, 2007, pp. 370-378
an• x 165: rsK, operations report, 26august 1995
annex 166: RSK, Order of Lieutenant Mile Mrkšić, 29 July 1995
an• x 167: republic of croatia, ministry of defence, Intelligence
report, 2august 1995
an• x 168: rsK, security department, daily report, 3august 1995
annex 169: agreement between the government of the republic of
croatia and the united nations peace forces – uncro
on temporary measures in the areas formerly Known as
“sector north” and “sector south”, 6august 1995
an• x 170: republic of croatia, ministry of defence, directive op.
no. 12-4/95, 26 June 1995
annex 171: republic of croatia, ministry of defence, order toattack,
2august 1995
• minutes of the meetings held at the defence ministry of
annex 172: the republic of croatia, 2august 1995
annex 173: Witness Statement of M.R.
annex 174: operation storm
annex 175: excerpt from the speech of the president of the republic,
Milan Martić, Given at the Briefing on the Combat
readiness of the svK, 10 february 1995
annex 176: marko vrcelj, “the War for serbian Krajina: 1991-1995”,
Belgrade, 2002
annex 177: svK, Intelligence department, Intelligence report, 4
august 1995
annex 178: Military Targets in the Vicinity of Benkovac, Gračac and
obrovac
annex 179: Death certificate of Dušan Korolija
annex 180: application for the Issuance of an Identity card for nikola
Kresojević, 30 January 2008
annex 181: application for Issuance of an Identity card for marijana
Poznanović, 30 April 2008
annex 182: rsK, military post 9138, extraordinary event, 16 october
1993
annex 183: RSK, Police Department, Letter Confirming the Death of
Branko Bajić, 22 February 1995
annex 184: rsK, regional centre vrginmost, operational report, 27
august 1993
KaZalo_cro rep_1.indd 22 12/15/2010 2:29:43 am XXIII
annex 185: rsK, command of the 7 operational group, report about
losses, 20april 1992
ann• 186: rsK, command of the 7 corps., Information for subordinate
units, 28april 1993
ann• 187: rsK,Benkovacmunicipalcourt,on-siteInvestigationrecord,
7 July 1993
ann• 188: rsK, commission for the exchange of prisoners, transfer of
corpses, 13 July 1993
annex 189:
• rsK, ministry of the Interior, report on the suicide of goran
Panić, 18 July 1995
ann• 190: rsK, ministry of defence, order of the republican civilian
protection staff, 15 July 1995
ann• 191: rsK, civil defence headquarters, order concerning the
Implementation of evacuation and relief plans, 29 July 1995
annex 192: rsK, lika regional civilian protection headquarters, order of
Mirko Poznanović, 30 July 1995
annex 193: rsK, drniš deptartment ministry of defence, directorate on
measures for the preparation of evacuation, 31 July 1995
annex 194: rsK, ministry of the Interior, order signed by minister tošo
Paić, 31 July 1995
annex 195: rsK, serb army general staff, order on the relocation of the
gŠ svK, 1august 1995
• rsK,civildefenceheadquarters,orderontheImplementation
annex 196: of preparation for the evacuation of assets, archives, and
records, 2august 1995
annex 197: rsK, civil defence headquarters, request on the
Implementation of civil defence plans, evacuation and relief,
2august 1995
• rsK, supreme defence council, decision on evacuation, 4
annex 198: august 1995
annex 199: rsK, military post 9139, Information to units, 8 January 1995
• savo Šrbac speaking from atvstudio in Banja luka, 7august
annex 200: 1995
annex 201: appeal to croatian citizens of serb nationality from president
Franjo Tuđman, Zagreb, 4 August 1995
annex 202:
• agreement on the surrender of the 21st corps., glina, 8august
1995
ann• 203: letter from colonel pettis to Brigadier pleština, 8august 1995
annex 204: errors in status of persons in the chc report (operation
storm),attachment 2a
annex 205: errors in status of persons in the chc report (operation
storm),attachment 2B
annex 206: discrepancyregardingcircumstancesofsuffering,attachment
3
KaZalo_cro rep_1.indd 23 12/15/2010 2:29:43 am XXIv
annex 207: list of persons with Incorrect personal data (operation
storm),attachment Ia
annex 208: list of persons with Incomplete personal data (operation
storm),attachment IB
ann• 209: UN, Coded Cable, Meeting with Mr Šarinić, 9 September
1995
annex 210: republic of croatia, ministry of defence, order on the Work
of the military police, cooperation Between and Joint Work
of the civilian and military police, and obligations of the
military police towards detained members of para-military
and para-police formations, 3august 1995
annex 211: government of the republic of croatia, minutes from the
257 closed session of the government of croatia, 4august
1995
• split – dalmatia police administration, submission of the
annex 212:
report about the situation regarding the sacral facilities of
the serbian orthodox church in the liberated territory, 22
august 1995
annex 213: split – dalmatia police administration, submission of the
report on the establishment of the vrlika Branch police
station and others, 5august 1995
annex 214: un, coded cable from akashi to the secretary-general, 7
august 1995
annex 215: Letter from Minister Mate Granić to German Foreign Minister
Klaus Kinkel, 25august 1995
KaZalo_cro rep_1.indd 24 12/15/2010 2:29:43 am XXv
KaZalo_cro rep_1.indd 25 12/15/2010 2:29:43 am XXvI
KaZalo_cro rep_1.indd 26 12/15/2010 2:29:43 am 1
CHAPTER I
INTRODUCTION
S e c t in: ov e r v i e w
1.1 The Applicant instituted these proceedings before the International
Court of Justice (“the Court”) on 2 July 1999. In accordance with an Order
of the Court, the Applicant filed its Memorial on 1 March 2001. Following
preliminary objections to jurisdiction filed by the Respondent in September
2002, on 18 November 2008 the Court gave a judgment rejecting the
Respondent’s preliminary objections, with the exception of the objection
relatingtojurisdictionrationetemporisthattheCourtfounddidnotpossessan
exclusively preliminary character and should therefore be considered with the
merits. By Order dated 20 January 2009 the Court fixed 20 March 2010 as the
date for the Respondent to file its Counter-Memorial. On 4 January 2010 the
Respondent filed its Counter-Memorial together with its Counter-Claim. By
Order dated 4 February 2010, the Court authorised the submission of a Reply
by the Applicant and a Rejoinder by the Respondent, and fixed 20 December
2010 as the time limit for the filing of the Reply. This Reply is submitted in
accordance with that Order, together with accompanying Annexes.
1.2 The Applicant has followed the dispositions of the Court in using
its Reply for the purposes of responding to factual claims and legal arguments
made by the Respondent in its Counter-Memorial, as well as those raised for
the first time in the Counter-Claim. For the avoidance of doubt, the Applicant
maintains the factual claims and legal arguments, as set out in the Memorial.
1.3 The Applicant brought these proceedings before the Court in July
1999, and filed its Memorial on 1 March 2001. In the intervening period there
have been a significant number of developments, including in particular
the judgment of the Court in 2007 in the Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and
1
Herzegovina v. Serbia and Montenegro), a series of judgments and other
decisions by the ICTY, and significant new evidence. Each of these elements
requires a number of preliminary comments.
1.4 The background to the Genocide Convention, its rationale and the
events leading to its adoption were set out in detail by the Applicant in the
2
Memorial. It comes as no surprise that the Respondent should place heavy
reliance on the Court’s 2007 judgment in the Bosnia case, noting that the
judgment is of “paramount importance to the present case”. The Applicant
1 Hereinafter referred to in this Reply as ‘Bosnia’.
2 Memorial, paras. 7.05-12.
3 Counter-Memorial, para. 32.
Volume 1.indd 1 12/14/2010 2:10:21 PM 2
does not disagree. However, the Respondent has manifestly failed to
recognise that the facts of these two cases are different, and that the evidence
is distinguishable. The Applicant has taken full account of the Court’s
2007 judgment in the Bosnia case, which as is shown in the Chapters that
follow, clearly confirms the approach taken by Croatia in the Memorial. The
Applicant has set out a catalogue of prohibited acts carried out against Croats,
from which only one inference can be drawn: the Respondent has breached its
4
obligations under the Genocide Convention.
1.5 Since the filing of the Memorial, significant additional evidence
has emerged, in particular confirming the high degree of control exercised
by FRY/Serbian authorities over Serb paramilitaries that were active on
Croatian territory. As confirmed by an expert report presented to the ICTY
in 2003, Serbia went so far as to integrate paramilitary forces involved in
the commission of acts of genocide into the JNA itself by means of an Order
5
dated 10 December 1991. A further independent report of 2007 confirmed
that a number of Serb paramilitary groups including Arkan’s Tigers and those
operating under ‘Captain Dragan’ were “controlled by the Ministry of Interior
6
(MUP) of the Republic of Serbia”.
1.6 OfparticularsignificancearethefindingsoftheICTYinProsecutor
v. Martić and Prosecutor v. Babić. The ICTY case law puts it beyond doubt
that there was a joint criminal enterprise (‘JCE’) orchestrated by the Serbian
governmenttoeradicatetheCroatpopulationfromsignificantpartsofCroatia,
and that the participants in the JCE included: “at least Blagoje Adžić, Milan
Babić, Radmilo Bogdanović, Veljko Kadijević, Radovan Karadžić, Slobodan
Milošević, Ratko Mladić, Vojislav Šešelj, Franko “Frenki” Simatović, Jovica
Stanišić, and Captain Dragan Vasiljković.” The ICTY concluded that there
wasa“generallysimilarpattern”ofattacksagainstCroatiantownsandvillages
by the TO, police and JNA acting in cooperation, which “involved the killing
and the removal of the Croat population. … after these attacks, widespread
crimes of violence and intimidation and crimes against private and public
property were perpetrated against the Croat population, including detention
4 See Chapters 4 and 5 of the Memorial and Chapters 5 and 6 of this Reply.
5 See Expert Report of R. Theunens, 16 December 2003, submitted by the Prosecution in
Prosecutor v. Slobodan Milošević, IT-02-54-T (‘Theunens Report, 2003’), p. 20 of Part II (at
para. 6). The order stated: “In all zones of combat operations all units of the JNA and TO,
as well as volunteer units agreeing to be placed under that command and to wear JNA and
TO insignia, are to be put under the control of the most senior JNA officer. All other armed
groups are to be regarded as paramilitary and are to be disarmed and removed from zones of
combat operations.”, 1st Administration of the General Staff of the SFRY’s Armed Forces,
strictly confidential No. 2256-2, dated 10 December 1991, Directive.
6 SeeExpertReportofRTheunens,30June2007,submittedbytheProsecutioninProsecutor
v. Jovića Stanišić and Franko Simatović, IT-03-69 (‘Theunens Report, 2007’), pp. 6-7, paras.
7-10, and see Part 1: Section Three, Part 5 of the Report at pp. 89-104.
IT-95-11, Trial Chamber Judgment, 12 June 2007 (‘Martić)’.
8 IT-03-72, Trial Chamber Sentencing Judgment, 29 June 2004 (‘Babić’).
9 Martić, para. 446.
Volume 1.indd 2 12/14/2010 2:10:21 PM 3
in facilities run by MUP forces or the SAO Krajina and the JNA. … the Trial
Chamber has concluded that the displacement of the non-Serb population was
not a mere side-effect but rather a primary objective of the attacks.” 10
1.7 The Applicant invites the Court to treat the Respondent’s Counter-
Memorial with care and attention, as a number of points must be made about
theRespondent’streatmentofevidence.First,aswillbeclear,theRespondent’s
Counter-Memorial is characterised by numerous misrepresentations of facts
and of key events, including a manifest failure to take account of the context
in which they occurred. This approach characterises the whole of the pleading
but in particular the treatment of the Counter-Claim in Chapters XII and XIII
oftheCounter-Memorial.Thepoliticalcontextoftheeventsthatareaddressed,
their interpretation, and the manner in which Operation Stormwas conducted
are materially different from those presented in the Counter-Memorial. These
misrepresentations are addressed in detail in this Reply.
1.8 Second, having describing facts erroneously and in a manner that
is not supported by the evidence, the Respondent proceeds to make sweeping
deductionsthatarenotestablishedbyprimaryevidenceorinference.Themost
blatant example of this approach is reflected in the Respondent’s description
and treatment of the ‘Brioni Minutes’ and the conclusions it draws from that
document with regard to the characterisation of Operation Storm. 11
1.9 Third, it is noteworthy that the Respondent frequently fails to rely
on its own official documentation or the “official records” of the ‘RSK’, to
which it presumably has access. It seeks to overcome this shortcoming with
references to allegedly neutral reports and foreign sources. Great reliance is
placed on inter alia: UN reports, which in general are not annexed; an ICTY
indictment from an ongoing case (the evidentiary value of which is addressed
inChapter2);andaccountsofnon-governmentalorganisationsliketheKrajina
Serbs Centre for Collecting Documents and Information (‘Veritas’) report and
the Croatian Helsinki Committee for Human Rights (‘CHC’). In contrast to
the evidence on which the Applicant relies, these sources either lack authority
or independence or contain serious methodological flaws that are addressed in
subsequent chapters.
1.10 Fourth,asmorefullyexplainedinChapters5and6,theRespondent
frequently fails to mention or respond to very significant aspects of the
claims raised by the Applicant. Where there is a response, it is confined to
insubstantial criticisms of specific evidence relied upon by the Applicant: at
no stage does the Respondent advance a positive case on particular events or
adduce any evidence in rebuttal. The Applicant invites the Court to treat these
claims as not having been refuted and therefore established.
10 Ibid., para. 443.
11
See Chapters 11 and 12, infra.
Volume 1.indd 3 12/14/2010 2:10:21 PM 4
1.11 Fifth, the Respondent frequently misrepresents the Applicant’s
actions and laws, often citing out of date reports and ignoring matters such
as the return of Serb refugees to Croatia. Such omissions are particularly
apparent with the erroneous title and contents of Chapter XIII, which fails
to raise any allegations as to violations of the Genocide Convention. The
Respondent ignores all developments relating to co-operation between the
parties that refute its allegations and of which it was well aware when the
Counter-Memorial was being drafted.
1.12 The Applicant also observes that the Respondent’s Counter-Claim
has been raised for the first time in 2010, notwithstanding the gravity of the
allegations it makes, and the fact that it concerns conduct alleged to have
occurred in 1995. This is of particular significance, given the criticisms
made by the Respondent of the timing of the Application, in 1999 (Counter-
Memorial, paragraph 14).
1.13 A final introductory matter concerns the request made by the
Applicant – by communication to the Court – for the Respondent to produce
certain documents emanating from, or implementing the decisions of, four
entities: the SFRY Presidency; the Supreme Command Staff; the ‘Meetings
of the Six’ and the Supreme Defence Council (these entities exercised de
jure or de facto control and command over the JNA/JA armed forces in the
period 1 April 1991 - 30 November 1995). 12 The Applicant believes that these
documents contain significant information of crucial relevance to the issues
in the case, and was reassured by the Respondent’s positive response in
observations dated 7 September 2010, following a meeting held between the
PartiesinBelgradeon3September2010:significantly,theRespondentagreed
in principle to disclose all the documents that were in its possession, whilst
indicating that a number classified as ‘Confidential’ would require formal
internal governmental approval process. The Respondent has since provided
the Applicant with a number of documents but has withheld many others. As
set out in Chapter 2, the Applicant reserves its right to make application to
the Court for the full disclosure in the event that all the documents are not
13
provided very shortly. In the Bosnia case, the Court stated:
“Although the Court has not agreed to either of the Applicant’s
requests to be provided with unedited copies of the documents, it has
not failed to note the Applicant’s suggestion that the Court may be
free to draw its own conclusions.” 14
1.14 On the basis of the facts of that case, and in view of the fact that the
request was made very late in the proceedings, the Court refused to request
12PursuanttoArticle49oftheCourt’sStatuteandArticle62oftheCourt’sRulesofProcedure.
See Request by Croatia for Serbia to Produce Certain Documents, 30 July 2010.
13
14Chapter 2, paras. 2.85 et seq.
Bosnia, para. 206.
Volume 1.indd 4 12/14/2010 2:10:21 PM 5
that the Respondent disclose the unredacted versions of the SDC documents. 15
In these proceedings, the Applicant’s request for disclosure has been made
promptly and in good time. The Respondent has accepted in principle that the
documents fall to be disclosed, but has so far failed to comply fully with that
principle in its actions. The Applicant hopes that it will not be necessary to
make a formal application to the Court to order disclosure of the documents
that have so far been withheld. In the Applicant’s submission, should such an
application be made, the Court should reaffirm the general principle that the
party with access to evidence (potentially) relevant to the determination of
a key issue in the case should produce that evidence, or face the prospect of
adverse inferences being drawn by the Court.
Se c t iii: St r u c t oefr e p ly
1.15 This Reply is divided into three Parts. Part I addresses the facts
relating to the Applicant’s claims concerning the Respondent’s violations of
theGenocideConvention;PartIIaddressesthelegalissuesthatarise,including
issues in relation to the jurisdiction of the Court; and Part III addresses the
Respondent’s Counter-Claim.
1.16 Part I comprises five Chapters. Chapter 2 responds to arguments
raised by the Respondent in Chapter III of its Counter-Memorial relating to
issues of proof and evidence, having regard to the approach set out by the
Court in the Bosnia case. A first section addresses the burden of proof, in
particular the duty of the Respondent to account for and explain matters that
occurred whilst it had control over the territory on which acts of genocide
occurred. A second section concerns the standard of proof, identifying those
matters on which the Parties are in agreement, namely that (i) violations of
Articles II and III of the Convention are to be proved by fully conclusive
evidence, (ii) violations of Article I require a lesser standard of proof at ‘a
high level of certainty appropriate to the seriousness of the allegation’, and
(iii) the proof may be established by inferences of fact. The third section
addresses methods of proof, responding to the Respondent’s misconceived
anderroneouscriticismsofCroatia’sevidenceandaddressingtheimplications
to be drawn from ICTY cases.
1.17 Chapter 3 addresses a number of matters of historical fact that
are significant in establishing the context for the Respondent’s responsibility
for genocidal acts. Section I responds to the Respondent’s arguments on the
growth of extreme Serbian nationalism and addresses erroneous claims made
regarding nationalism in Croatia. Section II revisits Belgrade’s campaign of
propaganda that gave rise to a rebellion by the Serb community in Croatia,
leading to the creation of areas of Serb occupation within the territory of
Croatia, as part of establishing a ‘Greater Serbia’, including the creation of
‘Serb Autonomous Regions’ and the so-called Republic of Srpska Krajina
15 In his Dissenting Opinion, Vice-President Al-Khasawneh criticized this part of the Court’s
approach, see para. 35.
Volume 1.indd 5 12/14/2010 2:10:21 PM 6
(‘RSK’).SectionIIIdescribestheintensificationoftheconflictinCroatiafrom
March 1991 onwards, including the role of the JNA; the dissolution of the
SFRY and the takeover of its federal institutions by Serbia; and human rights
abuses suffered by Croatia’s Croat population at the hands of the JNA and
the rebel Serbs. Section IV considers the role of the international community,
including UN engagement.
1.18 Chapter4respondstoChapterVIoftheCounter-Memorial,inwhich
the Respondent tries to break the link between the FRY/Serbian authorities
and the activities of the JNA and the paramilitary forces that resulted in acts
of genocide. It establishes that the JNA was a FRY/Serbian army for which it
has responsibility. Relying inter alia on judgments of the ICTY and evidence
that was not available in 2001, the Chapter revisits and supplements the
evidence presented in its 2001 Memorial to describe the transformation of the
JNA into a Serbian Army in the service of Serbian expansion and the creation
of a ‘Greater Serbia’. It proceeds to show Serb/JNA command and control
over the Serbian TO; the JNA’s role in the lead-up to the genocidal war; the
SFRY Presidency’s lack of control over the JNA; and the JNA’s engagement
in the genocidal conflict, including direct participation in acts of genocide in
concert with paramilitaries. It also touches upon the establishment of the so-
called army of the RSK (‘SVK’) by FRY/Serbia and its continuing command
and control over this so-called army.
1.19 Chapter 5 responds to those parts of Chapter VII of the Counter-
Memorial that concern genocidal acts in Eastern Slavonia. It confirms that the
evidence of genocidal acts for which the Respondent is responsible is clear,
compelling and conclusive, and that the Respondent’s evidence is misleading
and incomplete and often it even fails to address many of the factual claims
made by the Applicant in its Memorial. The Chapter draws on new evidence
and on ICTY and Serbian case law that provides strong support for the
Applicant’s case.
1.20 Chapter 6 responds to those parts of Chapter VII of the Counter-
MemorialthatconcerngenocidalactsinWesternSlavonia,Banovina,Kordun
and Lika, and Dalmatia. The Applicant’s conclusions in Chapter 5 are equally
applicable to the evidence of the Respondents responsibility for genocidal acts
in these parts of Croatia.
1.21 Part II of the Reply comprises three chapters that address the legal
issues. It begins with Chapter 7, which addresses the single issue relating
to the jurisdiction of the Court that was joined to the merits in the Court’s
judgment of Jurisdiction of 18 November 2008. The Chapter responds to
Chapter IV of the Counter-Memorial, where the Respondent argues that
acts and omissions that took place before 27 April 1992 cannot entail its
international responsibility because the FRY only came into existence on
Volume 1.indd 6 12/14/2010 2:10:21 PM 7
that date and was not bound by the Genocide Convention prior to it, and the
alternative argument that since Croatia only came into existence on 8 October
1991 it cannot raise claims based on facts preceding that date. In Section I
the Applicant submits that there is no express limitation ratione temporis in
the Genocide Convention. This has been confirmed by the Court in 1996 and
reaffirmed in 2008. Section II explains why, for all material times, Croatia
is entitled to invoke responsibility and Serbia may be held responsible under
the Convention. In Section III the Applicant invokes the effect of FRY’s 1992
declarationofcontinuationofSFRY’smultilateraltreatyrightsandobligations
in support of the Respondent’s responsibility. The Applicant argues that the
FRY is responsible as a State for acts prior to 27 April 1992 either by reason
of the self-proclaimed/de facto continuity of Serbia or, alternatively, by reason
of Article 10(2) of the ILC Articles on State Responsibility for Internationally
Wrongful Acts, which reflects customary international law and was applicable
tothefactsofthepresentcase.SectionIVsetsoutconclusionsastotheCourt’s
jurisdiction ratione temporis to entertain the present dispute in accordance
with Article IX of the Convention, on the grounds that the genocidal act are
attributable to Serbia as a self-proclaimed continuator of the personality of its
predecessor or in the alternative, pursuant to the customary rule codified in
Article 10(2) of the ILC Articles.
1.22 Chapter 8 responds to the Respondent’s legal arguments on the
Genocide Convention as set out in Chapter 2 of the Counter-Memorial,
including the definition of the physical and mental elements which form the
crime of genocide. Section I addresses the mental and physical elements of the
crime of genocide, as set out in Article II of the Genocide Convention; Section
II deals with the related crimes contained within Article III (b) to (e) of the
Convention;SectionIIIaddressestheobligationsoftheRespondenttoprevent
and punish genocide pursuant to Article I of the Convention; and Section IV
respondstotheRespondent’sargumentsonthespecificintent(dolusspecialis)
required to show that the crime of genocide has been committed, and that the
Respondent’s approach to specific intent is misguided and overly narrow and
is inconsistent with international practice and jurisprudence.
1.23 Chapter 9 sets out the legal basis for Applicant’s submissions
concerning the responsibility of the FRY for violations of the Genocide
Convention,respondingtoargumentsadvancedinTheRespondent’sCounter-
Memorial and taking into account the developments that have occurred since
the Memorial was filed (in particular the Court’s judgment in the Bosnia case,
decisions of the ICTY, and the additional body of eyewitness testimony and
documentary evidence corroborating the allegations made in the Memorial).
Section I addresses the mental element of the crime of genocide; the issues
arising under the actus reus requirement in light of the Court’s decision in
the Bosnia case; and the conclusions Croatia asks the Court to draw on these
questions by reference to the whole of the evidence now available. Section II
Volume 1.indd 7 12/14/2010 2:10:22 PM 8
shows why, if the Court finds Serbia responsible for acts of genocide under
Article III(a), it is not necessary to consider other forms of responsibility
under Article III(b) to (e). Section III addresses attribution, demonstrating
that it is “clearly established”6that the entities that committed the genocide
were organs of the Serbian state, or that they were acting on the instructions
of an organ of the State or under the effective direction and control of such
an organ. Finally, Section IV sets out the basis for the Applicant’s conclusion
that the Respondent is responsible for the failure to prevent and punish the
violations of Articles II and III of the Convention.
1.24 Part III of this Reply addresses the Respondent’s Counter-
Claim alleging that the Applicant has violated the Genocide Convention. It
demonstrates that these claims are entirely without foundation and appear
to have been made to further delay these proceedings; it is notable that the
Respondent’s allegations are restricted to Operation Storm, that no allegation
of genocidal act is made in respect of matters occurring prior to this date, and
that Chapter XII contains no allegations regarding the breaches of obligations
under the Genocide Convention.
1.25 Chapter 10 sets out the true factual account of the events that
transpired up to the commencement of Operation Storm, necessitated to
correct the unsatisfactory, incomplete and misleading “factual background”
provided by the Respondent. Section I addresses a number of preliminary
matters in relation to the Respondent’s Counter-Claims. Section II sets out the
facts, describing the Vance Plan and the conditions of the Croats living in the
UN ProtectedAreas. It describes the failure of the rebel Serbs to comply with
the Vance Plan from its inception, a fact that the Respondent admits. Section
III describes Croatia’s continuing efforts to arrive at a peaceful settlement
with the rebel Serb leadership. Section IV describes Operation Flash and the
events that followed.
1.26 Chapter 11 responds to the Respondent’s allegations that the
Applicant committed Genocide during Operation Storm and thereafter, by
inter alia deliberately driving persons of Serb ethnicity out of their homes and
killing the Serbs who remained in the ‘Krajina’. Section II describes Croatia’s
planningandpreparationfortheliberationoftheoccupiedterritoriesofCroatia
and refutes the Respondent’s claim that Croatia formulated and finalized a
“genocidal plan” at a meeting of the military establishment of Croatia on the
island of Brioni. Section III describes the final planning and preparation for
Operation Storm, the conduct of the Operation and the participants. Section
IV responds to the Respondent’s allegation that the Applicant committed
genocide through Operation Storm and thereafter. It describes evacuation
plans made and executed by the rebel Serbs and shows there was no unlawful
shelling of civilians; no forcible mass expulsion of Serbs from the ‘Krajina’;
16 Bosnia, para. 209.
Volume 1.indd 8 12/14/2010 2:10:22 PM 9
no systematic or widespread destruction of Serb property; and no targeting of
Serbs thereafter.
1.27 Chapter 12 shows that no genocide occurred against the Serbs in
Croatia. The Applicant refutes allegations that its de jure organs committed
genocidal acts or acted with any requisite genocidal intent to destroy a
substantial part of the Serbs in Croatia. The Chapter refutes the axiomatic
allegation that a genocidal plan or policy was adopted by the Croatian political
andmilitaryleadershipduringameetingontheislandofBrionion31 July1995,
and the allegation that any inference of genocidal intent can be drawn from the
manner in which Operation Storm was conducted, from events that are alleged
to have occurred in its aftermath, or from the legislative and executive policies
of theApplicant in relation to the return of the Serb civilian population of the
Krajina, and the protection of their civil and political rights.
1.28 The Reply includes 215 Annexes, divided into those related to the
Claim and those related to the Counter-Claim. The Annexes related to the
Claim are set out inVolumes 2-4 and are divided into the following categories:
(i) Witness Statements; (ii) Detained, Missing and Exhumed Persons Data;
(iii)MilitaryDocuments;(iv)DomesticCriminalProsecutionsDocuments;(v)
UN Documents; and (vi) Other Documents. Annexes related to the Counter-
Claim are set out in Volume 5.
Volume 1.indd 9 12/14/2010 2:10:22 PM 10
Volume 1.indd 10 12/14/2010 2:10:22 PM 11
CHAPTER 2
ISSUES OF PROOF
InTROdUCTIOn
2.1 This Chapter responds to arguments raised by the Respondent in
Chapter III of the Counter-Memorial, taking into account recent international
jurisprudence, including the Court’s judgment in the Bosnia case. The issues
addressed in this Chapter are as follows:
1. In relation to burden of proof, the Parties agree that the litigant
seeking to establish a fact bears the burden of proving it. The
Applicant submits however that the Respondent is under a duty
to explain certain matters which occurred whilst it had control
over the territory on which acts of genocide occurred and to
disclose documents in its possession which have been requested
by the Applicant as having a direct bearing on these proceedings
(Section I);
2. In relation to standard of proof (Section II), and in the light of the
Court’s judgment in the Bosnia case, the Parties agree that:
a. Claims against a State involving acts contrary to
Articles II and III of the Convention must be proved by
fully conclusive evidence such that the Court is fully
convinced that the allegations are clearly established;
b. Alowerstandardofproofappliesinrelationtoviolations
of the duties to prevent and punish acts of genocide
under Article I of the Convention, namely ‘proof at a
high level of certainty appropriate to the seriousness of
the allegation’;
c. The Court can draw proof of genocidal intent from
inferences of fact.
3. As regards methods of proof (Section III):
a. The Respondent has made a range of sweeping and
unjustified criticisms of the evidential material on
which the Applicant relies in order to seek to persuade
the Court that the material in question is inadmissible.
The Applicant does not accept these criticisms for the
reasons set out below and, in any event, notes that if
the criticisms had any merit (which is denied), they 12
would go to the weight to be placed on that evidence,
and not its admissibility. The Applicant also notes that
Respondent has, in many instances, relied on similar
sources in its Counter-Claim;
b. There is an issue as to the implications to be drawn by
theCourtfromafailurebytheICTYtoindictorconvict
individualsforactsofgenocide,inthelightoftheCourt’s
judgment in the Bosnia case. The Applicant’s position
is that the lack of ICTY indictments or convictions for
genocide in relation to the conflict in Croatia is of no
evidential significance.
SECTIOn I: BURdEn OF PROOF
2.2 It is well established that, in general, the applicant must establish its
case and that a party asserting a fact must establish it. As the Court stated in
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States):
“it is the litigant seeking to establish a fact who bears the burden of
proving it”1
This principle is often referred to as the principle actori incumbit onus
probandi. The Respondent refers to this principle in the Counter-Memorial. 2
The Respondent does not discuss further the principles which apply to the
allocation of the burden of proof between the parties. As is clear from the
presentation of its case in the 2001 Memorial, the Applicant accepts that the
burden of proving its claim under the Convention rests on the Applicant. The 3
extent to which the Respondent is under an obligation to provide an explana-
tion in respect of certain matters is addressed at the end of this Chapter.
SECTIOn II: STAndARd OF PROOF
2.3 In the Bosnia case, the Court held that:
“The Court has long recognised that claims against a State involving
charges of exceptional gravity must be proved by evidence that is
fully conclusive, Corfu Channel (United Kingdom v Albania),
Judgment I.C.J Reports 1949, p. 17. The Court requires that it be
fully convinced that allegations made in the proceedings, that the
crime of genocide or the other acts enumerated in Article III have
1 ICJ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States), Jurisdiction andAdmissibility Judgment I.C.J. Reports 1984, p. 437 (‘Nicaragua
2ase’), para. 101.
3 Counter-Memorial, para. 131.
Chapter 8 generally and in particular paras. 8.07-17. 13
been committed, have been clearly established. The same standard
applies to the proof of attribution for such acts.” 4
2.4 In the Corfu Channel case the Court recognized that the gravity of
the charge against a state was relevant to the determination of the required
standard of proof:
“Acharge of such exceptional gravity against a State would require a
degree of certainty that has not been reached here.” 5
The Respondent has stated that the same standard of proof should apply in
this case.6
2.5 The Applicant agrees that the appropriate standard of proof for the
crime of genocide and the other acts enumerated in Article III of the Conven-
tion is that the crimes must be clearly established and that the same standard
applies to the proof of attribution for such acts. As set out in the Memorial and
in this Reply, the evidence presented by the Applicant clearly establishes that
FRY/Serbia committed the crime of genocide during the genocidal campaign
it conducted in Croatia.
(1) Th e D uTi e sTo p r e v eTna nD p u nhe n o Dei – Di f f e TnsTa nDa rD o f
p r o o f
2.6 The Respondent appears to accept that a different standard of proof
applies in relation to violations of the duties to prevent and punish acts of
genocide under Article I of the Convention. Referring to the Court’s judgment
7
in the Bosnia case, the Respondent describes this as ‘a sensitive distinction’.
In that case, the Court laid down a distinction between the standard of proof
for establishing violations of Articles II and III of the Convention and viola-
tions of the obligations to prevent and punish genocide under Article I of the
Convention:
“In respect of theApplicant’s claim that the Respondent has breached
its undertakings to prevent genocide and to punish and extradite
persons charged with genocide, the Court requires proof at a high
8
level of certainty appropriate to the seriousness of the allegation.”
2.7 The Court’s language stands in contrast to its reference to the require-
ment for ‘fully conclusive evidence’ in relation to acts contrary to Articles II
and III of the Convention. The Applicant agrees with the Court that a lower
standard of proof is indeed appropriate, for the reasons set out below.
4
Bosnia, para. 209.
5 Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949
(hereinafter referred to in this Reply as ‘Corfu Channel case’), p. 17.
6 Counter-Memorial, para. 134.
7 Counter-Memorial, para. 133.
8 Bosnia, para. 210. 14
2.8 As the Court made clear in the Bosnia case, the duty to prevent geno-
9
cide is an obligation of conduct not result. It entails the duty to employ all
means reasonably available to that state ‘so as to prevent genocide as far as
possible’. A breach of the duty occurs if the state manifestly failed to take all
measures to prevent genocide which were within its power, and ‘which might
have contributed to preventing the genocide’. The Court referred to the notion
of due diligence as being of critical importance in this regard. The duty arises
at the moment when the state learns of or should have learned of a ‘serious
risk’ that genocide will be committed. 10
2.9 A breach of the obligation to prevent genocide therefore results from
the failure to adopt and implement suitable measures to prevent genocide in
circumstances where the respondent was aware, or should have been aware,
of a serious risk that acts of genocide would be committed. The justification
for applying a lower standard of proof for responsibility under Article I of
the Convention arises from the special difficulty of proving the causality of
omissions. The facts of this case easily meet this threshold, as addressed in
Chapters 5, 6 and 9 of this Reply.
2.10 In relation to the Respondent’s breach of duty to punish acts of geno-
cide, it should be noted, as discussed in Chapter 9, that Goran Hadžić re-
mains at large, six years after being indicted by the ICTY Prosecutor, because
of the failure of the Serbian government to cooperate with the ICTY by sur-
rendering Hadžić for trial. Ratko Mladić also remains at large, 15 years after a
warrant was issued by the ICTY. The lower standard of proof for demonstrat-
ing breach of the duty to punish is relevant and appropriate in this context.
(2) in f e r e :cer o o fo fsp e c i lnTe nT
2.11 The Parties also appear to be in agreement that the Court, as con-
firmed in the Bosnia case, can draw proof of genocidal intent from inferences
of fact.
2.12 The Respondent acknowledges in the Counter-Memorial that it is
sometimes difficult to show by direct evidence the intent to commit genocide
as the mental element of the crime. The Respondent goes on to refer to the
13
possibility, as confirmed by the Court in Corfu Channel, of reliance on in-
direct evidence and drawing proof from inferences of fact. The Respondent
notes that the standard of such proof to be applied in such cases is that of ‘no
room for reasonable doubt’ which is equivalent to the standard applied by the
ICTY under Rule 87A of the ICTY Rules of Procedure and Evidence which
9 Bosnia, para. 430.
10 Bosnia, para. 431.
11 Infra, at paras. 9.90-94.
12 Counter-Memorial, para. 135.
13 Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p.18 (‘Corfu
Channel case’). 15
addresses the basis for a finding of guilt. The Respondent then argues that
this leads to the conclusion that the standard of proof in this case should be
the same as the standard of proof in criminal proceedings, namely beyond
reasonable doubt, the highest standard of proof that could be required in in-
15
ternational litigation.
2.13 In its Memorial, the Applicant stated that:
“By reason of the very nature of the act of genocide, it is unlikely that
any State would formally adopt and then publicise any plan or other
scheme of organisation to carry out or promote genocide, or otherwise
prepare a paper trail which could then lead to its responsibility for
failing to prevent genocidal acts committed by persons within its
jurisdiction or control. But in the absence of documentary or other
materialwhichexplicitlyevidencesagenocidalintent,itispermissible
forthespecificintenttobeascertainedbyinference,inparticularfrom
a relatively consistent pattern of behaviour involving the prohibited
acts and targeted at a protected group.” (paragraph 7.33)
The Applicant set out the basis for its argument that special intent could in-
ferred in this case on the basis of a consistent pattern of events amounting to
genocide:
“In summary, the Serbian leadership, the FRY and the Republic of
Serbia embarked on a campaign of territorial acquisition with the
objective, not merely of establishing Serbian control in those parts
of the Republic of Croatia in which significant Serb populations
were located (including in particular Eastern and Western Slavonia,
Banovina, Kordun and Lika and Dalmatia as well as neighbouring
areasfallingwithinthearcof‘GreaterSerbia’),butalsoofeliminating
from those areas as far as possible all or almost all members of the
Croatian population. 16 The process involved the systematic and
repeatedcommissionofunlawfulactsprohibitedbyArticleII,withthe
specific intent of achieving the physical destruction and elimination
of the Croatian population of the areas in question. Indeed, these
genocidal actions were a necessary part of the policy as it had been
17
conceived…“
The Applicant then drew together the related factors which collectively pro-
vide overwhelming evidence of the intent required by Article II. 18
14 Counter-Memorial, para. 136.
15 Counter-Memorial, para. 137.
16
17 For a Map of “Greater Serbia”, see Memorial, paras. 2.76-77.
18 Memorial, para. 8.03.
Memorial, para. 8.16. 16
2.14 In the Bosnia case, Bosnia had argued that the existence of a geno-
cidal intent could be deduced by the Court from ‘objective circumstances’:
proof of the destruction, torture and cleansing of a large number of persons of
the same ethnic and religious group, especially when replicated on a national
19
scale and over a protracted period.
The Court held as follows:
“TurningnowtotheApplicant’scontentionthattheverypatternofthe
atrocities committed over many communities, over a lengthy period,
focused on Bosnian Muslims and also Croats, demonstrates the
necessaryintent,theCourtcannotagreewithsuchabroadproposition.
The dolus specialis, the specific intent to destroy the group in whole
or in part, has to be convincingly shown by reference to particular
circumstances, unless a general plan to that end can be convincingly
demonstrated to exist; and for a pattern of conduct to be accepted as
evidence of its existence, it would have to be such that it could only
point to the existence of such intent.” 20(emphasis added)
In relation to the test laid down by the Court: that the pattern of conduct would
have to be such that it could only point to the existence of special intent, the
Applicant submits that the evidence of a consistent pattern of conduct on the
part of FRY/Serbia presented in the 2001 Memorial, as supplemented in this
Reply, can only point to a specific intent to destroy in part that part of the
Croat population of Croatia living in areas claimed as Greater Serbia. 21On the
basis of this evidence, it is clear that special genocidal intent has been clearly
established.
2.15 The extent to which inferences may be drawn is illustrated by the ap-
proach of the ICTY in Martić, the Tribunal held that discrepancies in relation
to evidence concerning how certain killings had been carried out were not
material and did not affect its finding that the killings in question were com-
22
mitted. This shows that if evidence is of overall sufficient weight, the exis-
tence of a number of discrepancies relating to that evidence does not prevent
the Tribunal from making a finding based on the evidence as a whole.
2.16 A similar approach was adopted by the ICTY in relation to what
might be described as incomplete evidence of a particular event. In Martić,
the ICTY Tribunal held that in relation to exhumations at a mass grave it was
sufficient that there was direct evidence in relation to the killing of 8 of the 14
victims in order to conclude that they had all been killed at the site and on the
date in question. 23
19 Bosnia, para. 8.
20 Bosnia, para. 373.
21 See Chapter 9, paras. 9.20-22.
22 Martić, para. 215.
23 Martić, para. 234. 17
SECTION III: METHODS OF PROOF
2.17 The Applicant presented extensive evidential material in its 2001 Me-
morial. This material included witness statements; the reports of UN bodies;
forensic material obtained by UN sources and by Croatian intelligence ser-
vices, including photographic and documentary evidence recording the find-
ings made during the excavation of mass graves; copies of military orders
and other official documentation; the findings of ICTY proceedings, press
material and a range of other materials.
2.18 As confirmed in the Court’s judgment in the Bosnia case, the evi-
dence is pertinent and the Court must make own determination of the relevant
facts. In its judgment in that case, the Court made reference to its earlier judg-
ment in Congo v. Uganda in this regard (see below). The Respondent accepts
that the Court must determine the relevant facts and that the Court has a duty
to determine which materials have probative value. 24 The Applicant agrees
that the Court must perform these tasks in this case.
2.19 In the Bosnia case, the Court noted that the case had ‘an unusual fea-
ture’ in that: “Many of the allegations before this Court have already been the
subject of processes and decisions of the ICTY.” The unusual feature in that
case is of course also present in these proceedings and the approach taken by
the Court in Bosnia to the relevance and weight of the findings of the ICTY
clearly has a direct bearing on many of the issues to be determined in this
case, albeit that, to a large extent, the factual findings put before the Court in
that case relate to different facts and events.
2.20 The Applicant will first address a number of general issues relating
to methods of proof; it will then address the specific issues raised by relevant
findings of the ICTY.
(1) g e n e r lp p r o a c h
2.21 The Court’s general approach to evidentiary material is set out at
paragraph 61 of its judgment in Congo v Uganda, to which the Court referred
in Bosnia, and to which the Respondent also makes reference in the Counter-
Memorial: 27
“The Court will treat with caution evidentiary materials specially
prepared for this case and also materials emanating from a single
source. It will prefer contemporaneous evidence from persons with
direct knowledge. It will give particular attention to reliable evidence
acknowledging facts or conduct unfavourable to the State represented
24 Counter-Memorial, para. 138.
25 Bosnia, para. 212
26 Bosnia, para. 213.
27 Counter-Memorial, para. 139. 18
by the person making them... The Court will also give weight to
evidence that has not, even before this litigation, been challenged by
impartial persons for the correctness of what it contains. The Court
moreover notes that evidence obtained by examination of persons
directly involved, and who were subsequently cross-examined by
judges skilled in examination and experienced in assessing large
amountsoffactualinformation,someofitofatechnicalnature,merits
special attention. The Court thus will give appropriate consideration
to the Report of the Porter Commission, which gathered evidence in
this manner. The Court further notes that, since its publication, there
has been no challenge to the credibility of this Report, which has been
28
accepted by both Parties.”
2.22 In the Bosnia case, the Court considered the approach to be taken to
material other than that emanating from the ICTY, in particular reports from
official or independent bodies giving accounts of relevant events, and held
that:
“Their value depends, among other things, on (1) the source of the
item of evidence (for instance partisan, or neutral), (2) the process by
which it has been generated (for instance an anonymous press report
or the product of a careful court or court-like process), and (3) the
quality or character of the item (such as statements against interest,
29
and agreed or uncontested facts).”
2.23 Among the materials put before the Court in the Bosnia case was the
30
United Nations Secretary General’s Report ‘The Fall of Srebrenica’. The
Court considered how the report had been prepared and concluded:
“The care taken in preparing the report, its comprehensive sources
and the independence of those responsible for its preparation all lend
considerable authority to it… the Court gained substantial assistance
from this report.” 31
2.24 In this case, the Applicant has presented the Court with a range of
material emanating from independent and authoritative sources. Individual
sources are discussed below, but in general terms these materials can be con-
sidered to fall within the Congo v Uganda criteria and to fulfill the require-
ments set out by the Court in Bosnia.
28 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda)
Merits, Judgment of 19 December 2005, ICJ Reports 2005 p. 35 (‘Congo v Uganda case’),
para. 61; see also paras. 78-79, 114 and 237-242.
29 Bosnia, para. 227.
30
31 Published November 1999, submitted to GA: UN Doc A./54/549, para. 228.
Bosnia, para. 230. 19
(2) r e l e v a noeff iDi n g so fTh eicTY
2.25 Since the Memorial was filed, numerous individuals have been in-
dicted, prosecuted and tried for crimes committed on the territory of Croatia.
The relevance of ICTY proceedings was considered by the Court in Bosnia.
Subject to one caveat, the approach taken in Bosnia is adopted by the Appli-
cant. The Court held that:
1. the conviction by the ICTYof an individual for the crime of genocide
cannot be a pre-requisite to a finding by the ICJ of State responsibility
32
for violations of the Genocide Convention;
2. findings of fact by the ICTY following a contested trial are likely to
be “highly persuasive” and the resulting verdicts and evaluations (as
to, for example, the existence of the required intent) are also to be
33
accorded “due weight”;
3. agreed statements of fact following guilty pleas, and any resulting
sentencing judgments, are to be given a “certain weight”; and 34
4. no evidential weight is, however, to be accorded to the mere inclusion
of a charge in an Indictment of the ICTY, or to a decision to confirm
an Indictment, to issue a warrant, or to accept or reject an accused’s
motion for acquittal at the end of the prosecution case since none of
35
these steps involves any definitive finding of fact.
2.26 TheApplicantagreeswitheachofthesepropositionsandadoptsthem.
There is, however, one aspect of the Court’s approach in the Bosnia case with
which the Applicant takes issue. The Court held that decisions of the Office
of the Prosecutor of the ICTY (“OTP”) not to include a charge of genocide in
an Indictment or to amend an Indictment so as to exclude such a charge “may”
36
be significant. The Applicant does not accept that a prosecutorial decision of
this nature should be accorded any probative value.
2.27 In particular, the Applicant submits that:
1. the only tangible significance of a decision by the OTP not to include
a charge of genocide in an Indictment is that the Trial Chamber in any
such case will not have been called upon to reach a determination as
to whether the crime of genocide did, or did not, occur;
32 Ibid., paras. 180-182.
33 Ibid., paras. 220-223.
34 Ibid., paras. 224.
35 Ibid., paras. 218-219.
36 Ibid., para. 217. 20
2. there is no obligation on the OTP to charge the most serious crimes
available on the totality of the evidence. The width of prosecutorial
chargingdiscretionismilitatesheavilyagainstanyattachingevidential
significance to a decision of the OTP not to indict for genocide;
3. a wide range of factors may influence the OTP’s choice of charges,
which cannot have any material significance for the determination
of the issues before the ICJ (save that, as a result, there will be no
judicialdeterminationofgenocidalintentbytheICTY).Theseinclude
the cost, length and manageability of proceedings, the difficulties of
proving genocide when other serious charges are available carrying
adequate penalties, the difficulties of identifying and apprehending
individual perpetrators or those bearing command responsibility, and
the availability of witnesses.As the ICTY has itself explained:
“In the present context, indeed in many criminal justice
systems, the entity responsible for prosecutions has finite
financial and human resources and cannot realistically be
expected to prosecute every offender which may fall within
the strict terms of its jurisdiction. It must of necessity make
decisions as to the nature of the crimes and the offenders to
be prosecuted. It is beyond question that the Prosecutor has a
broad discretion in relation to the initiation of investigations
and in the preparation of indictments.” 37
4. a decision made for any one of these reasons would be wholly devoid
of evidential significance in proceedings before the ICJ under the
Genocide Convention because it would have nothing to do with the
question of State responsibility for a violation of the Convention.
Serbia is liable for the conduct of its organs, whether or not it is
possible to identify and prosecute particular individuals, or to prove
that an individual commander necessarily shared the genocidal intent
of those who framed the campaign;
5. even where the OTP has reached a considered evaluation that a
particularevent(orcombinationofevents)didnotamounttothecrime
of genocide, the significance of such an evaluation to proceedings
before the ICJ must be minimal at best. The decision not to indict for
genocide is an evaluation made the OTP (an executive body), rather
than the ICTY (a judicial body). It is difficult to see why a negative
37 Prosecutor v Mucić et al, Case No. IT-96-21, Appeals Chamber Judgment, 20 February
2001, p. 602. The appellant had argued that in his case there had been selective prosecution by
the Prosecutor; the Appeals Chamber found that no evidence of a discriminatory or improper
motive on the part of the Prosecutor and dismissed the appeal on this ground. 21
prosecutorial decision (that is, a decision not to include a charge of
genocide in an Indictment) should bear any greater significance than
a positive prosecutorial decision (a decision to include such a charge
in an Indictment). The Court has held the latter to be of no evidential
weight in reaching its own determination. This is because the mere
inclusion of a charge in an Indictment does not involve any definitive
finding of fact following a proper evaluation of the evidence. The
same is of course equally true of an OTP decision not to include
a charge of genocide in an Indictment, and the same result should
follow;
6. there is no obligation on the OTP even to explain the reasons for a
decision to exclude a charge of genocide in an Indictment. There
is accordingly no basis for determining whether or not the OTP’s
decision was made as the result of a considered evaluation that a
particular crime (or series of crimes) could not be proved to amount to
genocide, or was made, or influenced by, any of the factors identified
in paragraph 2.27(3), supra;
7. in addition, the ICTY is concerned with individual responsibility
for particular crimes, not State responsibility for an accumulation of
crimes. When considering whether to include a charge of genocide
in an Indictment, the OTP may conclude that a particular crime can
be proved against an identifiable individual, but that the facts of that
crime, when viewed in isolation, do not prove beyond reasonable
doubt an intention on the part of that particular accused to destroy a
protected group in whole or in part. Proceedings before the ICJ under
the Genocide Convention have an altogether wider focus, which
can take account of the cumulative impact on a protected group of
a series of crimes, systematically perpetrated on a large section of
the population, over a wide geographical area, by a large number of
individual perpetrators, some or all of whom cannot be identified or
brought to justice before the ICTYfor their part in the events.The ICJ
is also subject to its own rules and principles governing evidentiary
matters, including the burden of proof; 38
38 ThisissuewascommentedonbyVice-PresidentAl-KhasawnehinhisDissentingOpinion,
where he noted: “That the ICTY has not found genocide based on patterns of conduct in the
whole of Bosnia is of course not in the least surprising. The Tribunal only has jurisdiction to
judge the individual criminal liability of particular persons accused before it, and the relevant
evidence will therefore be limited to the sphere of operations of the accused. In addition,
prosecutorial conduct is often based on expediency and therefore no conclusions can be drawn
from the prosecution’s acceptance of a plea bargain or failure to charge a particular person
with genocide. While the Court is intent on adopting the burden of proof relevant to criminal
trials, it is not willing to recognize that there is a fundamental distinction between a single
person’s criminal trial-and a case involving State responsibility for genocide. The Court can
look at patterns of conduct throughout Bosnia because it is not constrained by the sphere of 22
8. in consequence, the Court has before it additional evidence that
was not available to the ICTY at the time the Prosecutors exercised
prosecutorial discretion (and the Applicant believes may have even
more as and when the Respondent complies fully with theApplicant’s
document request). The factual matrix is entirely different, since the
Court is able to view the totality of the evidence, including the factual
findings already made by the ICTY, and is in a far better position than
the OTPto assess whether the totality of the crimes contemplated and
committed disclose genocidal intent.
2.28 The Applicant’s approach is supported by an article published in 2008
by Richard Goldstone, former Chief Prosecutor of the ICTY and ICTR, criti-
cising the Court’s approach to this issue in the Bosnia case:
“The problem with the Court’s reasoning is that the question before
it at that stage was whether genocide had occurred in Bosnia and
Herzegovina, not whether genocide was committed by the relative
handful of individuals who have to date been prosecuted by the ICTY.
The ICTY does not have the resources or the mandate to investigate
every possible charge of genocide arising out of the horrific crimes
committed in Bosnia and Herzegovina since 1991. Furthermore, the
ICTYwasneverjudgingwhethergenocideoccurredatagivenlocation
or time, but rather whether an individual before it was responsible for
a particular act of genocideor not. It is thereforeinappropriateto draw
inferences about whether genocide did or did not take place based on
what the ICTYchambers have not found to be substantiated beyond a
reasonable doubt, in respect of any given individual.” 39
2.29 In conclusion on the issue of the implications to be drawn from a lack
of convictions, Goldstone states:
“the availability or not of judgments before one tribunal should
not be determinative of the outcome of proceedings before another
independent body, especially if other sources of evidence or avenues
of inquiry remain open, and least of all on a matter of this gravity and
importance.” 40
2.30 Similarly in relation to the drawing of inferences from the absence of
ICTY charges, Goldstone concludes:
“Giving evidentiary weight to the Prosecutor’s decision not to
include a genocide charge in any given indictment, or to negotiate
operations of any particular accused-and it should have done so.” Bosnia, Dissenting Opinion
39 Vice-President Al-Khasawneh, para. 42.
See“BosniavSerbia:LessonsfromtheEncounteroftheInternationalCourtofJusticewith
the International Criminal Tribunal for the Former Yugoslavia”, (2008) 21 Leiden Journal of
International Law, pp. 95-112.
40 Ibid. 23
a plea agreement that involves withdrawing a genocide charge, is
troublesome. First, the Prosecutor’s decision not to charge genocide
in an indictment may have nothing at all to do with the absence of
evidence that genocide was committed in any particular situation.The
evidence might indeed be conclusive as to the actus reus but wanting
with regard to the criminal liability of the particular individual
accused person or persons before the Tribunal. Second, crucial
evidence may have been obtained from a state intelligence source
under the provisions of Rule 70B of the ICTYRules of Procedure and
Evidence. Reference to such evidence in an indictment would thus
be precluded. And, with regard to a plea agreement, the acceptance
by the Prosecutor of a confession of guilt to a less serious crime
than genocide might well be driven by the advantages of avoiding a
lengthy trial or the unavailability of essential evidence. There might,
indeed, be other weaknesses in the prosecution case that 41e unrelated
to whether or not genocide was actually committed.”
2.31 In addition to the reasons put forward by Goldstone against placing
particular weight on ICTY decisions not to prosecute/convict individuals for
genocide, it should also be remembered that in 2004 the UN Security Coun-
cil imposed a ‘Completion Strategy’ (sometimes referred to as an ‘exit strat-
egy’) on the ICTY, calling on the Tribunal to conclude all its work by 2010
(appeals).42
2.32 The Respondent argues that it is for the Applicant to decide what
use to make of ICTY findings as the defendants were of Croatian nationality.
The Applicant does not understand this comment, the nationality of particu-
lar defendants being tried before the ICTY is not, of itself, determinative of
whether a state has committed genocide. The relevance of various findings of
fact made by the ICTY is addressed further in Chapters 4, 5, 6 and 9.
2.33 The Respondent has also relied upon the statements and testimony
of witnesses who have given evidence before the ICTY in Prosecutor v. Go-
tovina et al. At the time of writing, there has been no judgment of the ICTY
recording definitive findings of fact based upon that evidence, and no assess-
ment of the reliability or accuracy of the factual statements on which Serbia
relies. Accordingly, that testimony is of no greater evidential value than any
other statement or testimony on which either party relies. It forms part of the
material for the Court to consider, but it does not enjoy any special status. It
will be for the Court to determine what weight, if any, to attach to that evi-
dence.
41 Ibid., pp. 106-107.
42 See UN Security Council Resolution 1534 (2004), referring to earlier SC Resolution
1503 (2003); see also UN Security Council Resolution 1931 (2010) calling on the Tribunal to
conclude its work ‘expeditiously’.
43
44 Counter-Memorial, para. 175.
ICTY Case No IT-06-90 (judgment pending) (‘Gotovina et al’). 24
(3)a Dmissibil TiY o fDo c u m ea rY e vi e n c ep r e s eTneD bY Th ea p T n i c a
2.34 The Respondent seeks to persuade the Court that the documentary
materials presented by the Applicant in its 2001 Memorial, including witness
statements, are inadmissible. In particular the Court is asked to dismiss the
evidence of several hundred individuals who were present during the conflict.
The Applicant objects to this claim. Many of these were victims of atrocities
themselves, or lost family and friends as a result of such atrocities. Many have
given evidence on condition of anonymity, on the basis that they remain fear-
ful of being publicly identified because of possible retaliation by individuals
suspected of participation in the atrocities to which they have attested. In
2010, the vulnerability of witnesses giving evidence in relation to the con-
flicts in the former SFRY, including in relation to Croatia, remains an issue as
recent decisions by the ICTY testify. 45
2.35 Notwithstanding the sensitive position of these witnesses whose evi-
dence has been presented by the Applicant, and rather than confine itself to
challenging those parts of such evidence which it disputes as a matter of fact,
the Respondent seeks to exclude, in its entirety, the testimony of people di-
rectly and personally involved in the events which have given rise to this
claim.
2.36 The Respondent’s first legal basis for making such an argument is
that the documents “are not relevant in this case” (sic). The Respondent as-
serts that only a small number of the statements contain direct knowledge
about offences which constitute the actus reus for genocide. The Applicant
does not accept this characterization of the evidence presented (see further
Chapters 5 and 6 of the Reply); but, in any event, that more properly goes to
the probative weight to be attached to that individual’s evidence and not to the
admissibility of the witness statements taken as a whole. Each witness state-
ment must be considered individually and on its own merits if it is alleged that
such a statement is so lacking in relevance as to be inadmissible. This Serbia
has not done.
2.37 In its judgment in Corfu Channel, the Court held that statements at-
tributed by the witness to third parties can be regarded only as allegations
falling short of conclusive evidence, but proof may be drawn from inferences
of fact provided they leave no room for doubt . The issue of inference has
already been discussed above, but this approach of the Court confirms that
the issue is one of weight, not admissibility.
45
See, for example, the recent decision in Prosecutor v. Šešelj, IT-03-67-R77.2, Appeals
Chamber Judgment, 19 May 2010, confirming the conviction of Vojislav Šešelj for contempt
in respect of the disclosure of information regarding three witnesses.
46 Counter-Memorial, paras. 144-149.
47 Counter-Memorial, para. 145.
48 Corfu Channel case, pp. 17-18. 25
2.38 A characteristically sweeping approach is also to be found at para-
graph 147 of the Counter-Memorial, where the Respondent makes the broad
claim that ‘not one’ of the other documents annexed to the Memorial, includ-
ing military documents and statements of high-level Serbian and Yugoslav of-
ficials, ‘contains facts that provide proof establishing the legal elements of the
crime of genocide’. The Applicant notes that the Respondent does not attack
these documents on the basis of any supposed inauthenticity. The authenticity
of those materials is therefore presumably accepted. The Applicant cannot
respond to criticisms of evidence which are so generalized as to constitute no
more than a general denial of the Applicant’s case. In those circumstances,
the Applicant submits that the Court can only proceed to weigh the probative
value of individual items by reference to the details of the claim. The Respon-
dent simply has not presented any sound basis for dismissing this evidence in
its entirety.
2.39 In sum, the Applicant invites the Court to reject Serbia’s argument.
The Respondent’s criticisms of the Applicant’s evidence as to the role of the
JNA at the Croatian battlefront are addressed in Chapter 4 of this Reply,
which refers to relevant findings of the ICTY.
2.40 The Respondent’s second basis for attacking the evidence presented
by the Applicant is that the witnesses are not ‘disinterested’ in the outcome of
50
this case. By this the Respondent is apparently referring to the fact that the
witnesses were directly involved in the conflict. 51
2.41 The Applicant would note here that the Court’s comment in its judg-
ment in the Nicaraguacase cited by the Respondent simply refers to the ‘su-
perior credibility’ of evidence obtained from those who are ‘disinterested’ in
the sense of not being party to the proceedings and who have nothing to gain
or lose from its outcome. Thus the citation does not support the proposition
that evidence which does not come from such sources must be inadmissible,
simply that it may be of less credibility. These witnesses are not parties to
the case and there is no evidence that any of these individuals stand to gain
materially from the outcome of the case as implied from the reference to pos-
sible reparations: it is misconceived and without foundation for the Respon-
dent to assert that the witnesses have an individual financial interest in these
proceedings. Moreover, the ICTY has specifically stated that: “It is neither
appropriate, nor correct, to conclude that a witness is deemed to be inherently
unreliable solely because he was the victim of a crime committed by a person
of the same creed, ethnic group, armed force or any other characteristic of the
accused.” 53
49 Counter-Memorial, para. 148.
50 Counter-Memorial, paras. 150-152.
51 Counter-Memorial, para. 151.
52 Nicaragua case, para. 69.
53 Prosecutor v. Tadić, IT-94-1, Trial Chamber Judgment, 7 May 1997, para. 541. 26
2.42 The Respondent’s third basis for arguing that the Applicant’s evi-
dence is inadmissible relates to the alleged lack of fulfillment of minimum
evidentiary requirements. 54 The Respondent asks the Court to dismiss as in-
admissible ‘a large majority’ of the witness statements on the basis that they
were either not signed or were not taken by ‘an authorized domestic organ’ or
by a procedure that would guarantee ‘minimum procedural safeguards’. The
Respondent is factually incorrect in its assertion: 72 of the original witness
statements were taken in court proceedings, during the course of which the
witness was warned (in the usual way, for both Croatian and Serbian courts)
that he or she must tell the truth and that failure to do so would be an offence.
The Respondent’s assertion is also legally incorrect: as the ICTY has recently
made clear,
“There will be no blanket prohibition on the admission of evidence
simply on the grounds that the purported author of that evidence
has not been called to testify. Likewise, the fact that a document has
neither a signature nor a stamp is not in itself a reason to find that the
55
document is not authentic.”
2.43 In any event, the Applicant has now obtained confirmatory witness
statements from 188 of the original witnesses which were the subject of criti-
cism by the Respondent, verifying (in the presence of a police officer) that
56
their original statements were truthful; a further 106 are now deceased. In
addition, the Applicant has obtained confirmatory witness statements in re-
lation to many of the further statements relied upon in this Reply. There is57
accordingly no merit in the Respondent’s contention that the evidence relied
upon by the Applicant in the Memorial is inadmissible.
2.44 The Respondent frequently asserts that evidence relied upon by the
Applicant is hearsay and is accordingly not capable of supporting the Appli-
cant’s case. The Respondent’s argument is misconceived. The jurisprudence
of the principal international criminal courts and tribunals makes it clear that
hearsay evidence is relevant and admissible, and should be assessed in the
light of its content and circumstances in which it was obtained. 59
54 Counter-Memorial, paras. 153-158.
55
Prosecutor v. Karadžić, IT-95-5, Decision on Guidelines for the Admission of Evidence
Through Witnesses, 19 May 2010, para. 25; and see in similar terms the Decision Adopting
Guidelines on the Standards Governing the Admission of Evidence in Martić, 19 January
2006, Annex A, para. 5. The Martić Decision also comments that: “Parties should always bear
in mind the basic distinction that exists between the admissibility of documentary evidence
and the weight that documentary evidence is given under the principle of free evaluation of
evidence. The practice will be, therefore, in favour of admissibility.”
56 See Annex 30, in which the statements appear in the same order as in the original Annexes
57 the Memorial.
The confirmatory witness statements appear immediately behind the original witness
statement of each witness.
58 See, for example, Counter-Memorial, paras. 730, 743 and 758.
59 Prosecutor v. Aleksovski, IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on 27
2.45 The Respondent also appears to be critical as a matter of principle
about the fact that only one witness gives evidence in relation to certain inci-
dents. 60Any such criticism is unsustainable: Rule 63(4) of the Rules of Proce-
dure and Evidence of the International Criminal Court specifically provides
that “a Chamber shall not impose a legal requirement that corroboration is
required in order to prove any crime within the jurisdiction of the Court…
61
.”
2.46 The Respondent also raises the issue of whether the Applicant will
seek to present oral evidence at the hearing and argues that this would be im-
practicable. 62The Applicant is currently reviewing whether or not to call non-
expert witnesses at the oral hearing and, if it decides to do so, will provide
notice to the Registrar in sufficient time, in accordance with Article 57 of the
ICJ Rules of Court.
2.47 In relation to the Applicant’s references to press reports and extracts
from books, the Respondent argues that these are secondary sources of evi-
dence which do not support any other sources of primary evidence and which,
inthelightoftheCourt’sjudgmentintheNicaraguacasemustbetreatedwith
‘great caution’. The Respondent also argues that the material does not offer
any information on the required legal elements of the crime of genocide.
2.48 Once again, the Respondent resorts to sweeping unsubstantiated crit-
icism in an attempt to dismiss an entire category of the Applicant’s evidence.
The Applicant would argue that the items must be considered individually on
their own merits or, at the very least, much more narrowly and that in no case
has the Respondent shown any convincing basis for excluding the material
altogether, whatever view it takes of relevance or probative weight.
2.49 To take a few examples only, the Applicant has cited extensively from
the official weekly newspaper of the JNA, Narodna Armija (People’s Army).
The articles published in the Narodna Armija were written in a tone that re-
flected the official policy of the JNA and its understanding of Yugoslav unity.
The newspaper’s main task was to inform the JNA about the current situa-
Admissibility of Evidence, 16 February 1999, para. 15; Prosecutor v. Blaškić, IT-95-14, Trial
Chamber Judgment, para. 36; and Prosecutor v. Galić, Case No. IT-98-29, 7. June 2002, para.
27.
60 See, for example, para. 661
61
The principle has also been consistently expressed in the case law of the ICTY:
see,forexample,Prosecutorv.Tadić,IT-94-1,TrialChamberOpinionandJudgment,
7 May 1997, paras. 535-539, concluding that “there is no ground for concluding that
this requirement of corroboration is any part of customary international law and
should be required by this International Tribunal”; Prosecutor v. Delalić et al, IT-96-
21, Trial Chamber Judgment, 16 November 1998, para. 594; Prosecutor v. Kupreškić,
IT-95-16, Appeals Chamber Judgment, 23 October 2001, para. 33.
62 Counter-Memorial, para. 158.
63 Counter-Memorial, paras. 159-162.
64 Nicaragua case, para. 62. 28
tion within the army and the state itself, as well as internationally. Moreover,
the JNA used the People’s Army to wage its propaganda war against Croatia
and, in 1992, against Bosnia and Herzegovina too. The paper used to report
regularly on the activities of the SFRY Presidency and the Federal Executive
Council. It published information concerning defence issues that was made
available by those bodies. This practice became increasingly common from
mid-1990 and especially from 1991. The articles referred to by the Applicant
deal with issues including: the deployment of the JNA during the conflict; 65
66
the aggressive stance of the JNA towards Croatian civilians; the use of de-
rogatory language to refer to Croats (“vampire Ustashas”) by senior military
figures in the JNA; 67the relationship between the JNA and TO forces and the
68
support offered to rebel Serbs by the JNA. This publication was published
by the state for the purposes of informing and influencing an official organ
of the state, the JNA. As such, it is of significant probative value as to official
policy during the conflict, the policies, attitudes and operational stance of the
JNA during the conflict and provides a contemporaneous commentary on
some of the events on which this claim is based.
2.50 A further example of the use of published material is the Applicant’s
references to the published memoirs of Boris Jović, former Chairman of the
69
Presidency of the SFRY and close associate of Milošević. So far as the Ap-
plicant is aware, Mr Jović has not retracted the statements made in his book,
which provide very strong evidence, originating from a very senior source, in
support of the Applicant’s case.
2.51 In relation to these and all similar materials, the Applicant submits
that relevance is a matter for individual determination by the Court in each
case, having regard to the proposition in support of which the material is ad-
duced. It should be noted that the Court in Nicaraguastated that this type of
material (reports in press articles and extracts from books) could “contribute
in some circumstances to corroborating the existence of a fact i.e. as illustra-
tive material additional to other sources of evidence.” In the case of Naro-
dna Armija, this material is more than merely illustrative being an official
publication produced by the state for the purposes of informing the policies
and actions of a state organ, the JNA. Furthermore, as also confirmed by the
Court in Nicaragua, ‘press information’ can also be relied on as evidence of
public knowledge of a fact. 71
65
66 See, for example, Memorial, para. 3.76, footnote 176.
Memorial, para. 3.78, footnote 178.
67 See Memorial para. 3.39, footnote 94; see also para. 3.75 footnote 173 (sensationalist
descriptions of ‘Ustasha’ plots to murder Serbs).
68 Memorial, para. 3.82, footnote 193 (area held by JNA while rebel Serbs administrations
being formed).
69 Boris Jović was cited before the ICTY proceedings against Milošević as participating in
a joint criminal enterprise with Slobodan Milošević and others in relation to the conflict in
Croatia, but he has not yet been indicted by the ICTY: Prosecutor v. Slobodan Milošević, IT-
02-54-T, Second Amended Indictment, 27 July 2004 (‘Milošević)’.
70 Nicaragua case, para. 62.
71 Ibid., para. 63. 29
2.52 In relation to the provenance of certain maps, photos, lists and graph-
ics presented in the Memorial, the Respondent seeks to argue that these are
72
inadmissible because they are presented without information on provenance.
These materials have been prepared by official Croatian agencies to assist in
the comprehension of material presented by the Applicant. This has no impact
upon their admissibility, which cannot be properly disputed. 73
2.53 Further, in relation to the photograph displayed at Plate No 13 show-
ing Slobodan Milošević and Arkan attending the funeral of Badža in April
1997, the Applicant notes that the Respondent does not seek to claim that the
photograph is not authentic or has been doctored in any way. As to the con-
clusions to be drawn from the photo, this is a matter for determination by the
Court and not an issue of admissibility (as is the position for all such material
relied upon by the Applicant).
2.54 The material relating to camps has been confirmed by the Interna-
74
tional Committee of the Red Cross. An updated list of missing persons is
annexed at Annex 41. An updated list of detained persons is annexed at An-
nex 42. 76 It is also of considerable importance that, on 27 and 28 July 2010, a
meeting on missing persons was held in Belgrade between the Commission
for Missing Persons of the Government of Republic of Serbia and the Com-
mission for Detained and Missing Persons of the Government of Republic of
Croatia, under the auspices of the International Committee of the Red Cross
and the International Commission on Missing Persons. One of the issues ad-
dressed was the question of those detained on the territory of the Respondent.
In respect of this issue, representatives of the Respondent gave to the Ap-
plicant’ representatives a list of 2786 persons who were detained in Republic
of Serbia in the period 1991-1992. This is a critical and welcome admis-
sion by the Respondent that thousands of Croats were detained in several
prison camps on Serbian territory. The names included on the list of detained
persons received from Serbia accord with the names on the list of detained
persons form Memorial. Documents concerning JNA orders to set up camps
(and sub-orders) are annexed to this Reply. 78
72
Counter-Memorial, paras. 163-167.
73 See further, footnote 56, supra, citing the Decision Adopting Guidelines on the Standards
Governing the Admission of Evidence in Martić, 19 January 2006, Annex A, para. 5. As to
material emanating from official Croatian agencies, see infra, para. 2.55 et seq..
74 See for example copies of ICRC certificates recording information on detained persons at
camps at Morinj, Knin and Manjača: International Committee of the Red Cross, Registration
Certificate for D.Š., 3 January 1996, Annex 31; International Committee of the
Red Cross, Registration Certificate for Z.T., 19 February 2009, Annex 40; and
International Committee of the Red Cross, Registration Certificate for T.L., 3
April 1998, Annex 34.
75 Updated List of Missing Persons, 1 September 2010, indicating a total of 1024 missing
76rsons, Annex 41.
Updated List of Persons Detained in Camps under Serbian Control on the Territory of the
FRY, BH and Croatia, 1 September 2010, indicating a total of 7708 missing persons, of whom
2866 were registered by the ICRC, Annex 42.
77 Serbian List of Persons Detained on the Territory of Serbia, Annex 47.
78 JNA, 5 Corps., Order to set up Camp Manjača, 13 September 1991, Annex 52, and JNA, 30
79
2.55 As to the status of material provided by Croatian official bodies,
criticized by the Respondent for not being ‘impartial’, again this is a matter on
which the Court must reach a view on an individual basis, but there is no pos-
sible basis for the exclusion as inadmissible of any material emanating from
the official bodies of a party, nor does the Respondent cite such basis. Indeed
the Respondent simply claims that these materials should be ‘taken with great
reserve’.
2.56 In relation to the alleged lack of impartiality it should be noted that,
in relation to the Office for Detained and Missing Persons, that body works
closely with independent international organizations, including the ICRC,
which in 2006 decided to transfer responsibility for the processing and man-
agement of data relating to persons reported missing in connection with the
armed conflicts on the territory of the Republic of Croatia between 1991 and
80
1995 to the Croatian Red Cross. International organizations and agencies
including the Office of the UN High Commissioner for Human Rights, the
ICTY, the OSCE and the Observation Commission of the European Commu-
nity were invited to send expert observers to observe the exhumation of mass
graves in Croatia. The high standing of the Office for Detained and Missing
Persons is also confirmed in a letter from Carla del Ponte, Prosecutor of the
ICTY dated July 2002 which expresses gratitude for the ‘efficient, profes-
sional and co-operative manner’ in which exhumations were conducted by the
82
Office, under the direction of Colonel Grujić. An indication of the degree of
cooperation between the Croatian authorities, international bodies including
the ICTY and the Serbian authorities is provided by a report of an exhumation
83
dated 17 October 2006 attached at Annex 39. This report indicates the pres-
ence of not only a number of representatives of relevant Croatian agencies, in-
cluding the Office for Detailed and Missing Persons, but also a representative
from the ICTY and from the International Commission for Missing Persons,
together with Serbian governmental representatives.
2.57 It should also be noted that the Serbian authorities allowed only limi-
ted access to international humanitarian organisations, including the ICRC,
and did not allow Croatian authorities to have access to the burial sites of
bodies of Croatian nationals in areas under their control: see, for example,
th
5 Corps., Order to set up Camp Stara Gradiška, 7 January 1992, Annex 75.
79 Counter-Memorial, para. 167.
80 Memorandum of Agreement Between the Government of the Republic of Croatia, and the
International Committee of the Red Cross, to Define the Roles and Responsibilities of the
Government of the Republic of Croatia and the International Committee of the Red Cross in
view of the Transfer of the Competence for the Management of Data on Missing Persons in the
81med Conflicts on the Territory of the Republic of Croatia, 28 July 2006, Annex 38.
Letters from the Commissionfor Detained and Missing Persons inviting the ICTY Liaison
Office, the UN High Commissioner for Human Rights, the OSCE Mission to the Republic of Croatia
and the Observation Mission of the EC to Send Observers to the Exhumation of Mass Graves, 27
February 1997, 9 April 1998 and 7 July 2000: Annex 35. Also the Joint Serbian, Croatian and
International Monitors Record for Marinovci Farm dated 26 March 1997, Annex 33.
82 Letter from the ICTY OTP to the Republic of Croatia, dated 25 July 2002, Annex 36.
83 Gospic County Court Exhumation Record Kir-113 04, dated 17 October 2006, Annex 39. 31
the Report on the Work of the Commission for Detained and Missing Per-
sons dated 29 October 1996, concerning the Serbian failure to cooperate with
84
exhumations of mass graves at Ovčara. Even the international humanitar-
ian organizations, including the ICRC, were allowed only limited access. 85In
relation to the report produced by the Ministry of Culture, it should similarly
be noted that the Ministry could only investigate areas under Croatian control
as it did not have access to other areas. 86
2.58 Finally, it should be noted that it is for the Court to determine whether
the Respondent is responsible for any acts of genocide which may be estab-
lished and the Court may take into account any statements made by either
party that bear upon the issue, and may accord them such legal effect as may
be appropriate. 87
(4) Th e r e s p ne nTs a p p r o a cohpr o o f
2.59 Having invited the Court to dismiss the Applicant’s evidence in its
entirety, the Respondent turns to the question of its own general approach
to methods of proof, including in relation to the counterclaim. The specific
points it raises are considered under specific headings in this Reply, but in
relation to the general approach, it is worth noting that the Respondent “states
its willingness to discuss reaching an agreement on relevant facts” with the
Applicant. 89 The Respondent goes on to state that any such agreement must be
relevant not only to the suffering of Croats during the conflict but also to facts
relevant for the suffering of Serbs in Croatia.
2.60 The Respondent argues that the Court should follow the same ap-
90
proach to methods of proof in these proceedings as it adopted in Bosnia. The
Applicant agrees, subject to the following observations: (1) the approach to
be taken to the Applicant’s request for the Respondent to produce documents
should be considered in light of the Applicant’s submissions at paragraph 2.85
et seq., infra; (2) the approach to ICTY prosecutorial decisions should be con-
sidered in light of the Applicant’s submissions at paragraphs 2.25-33, supra,
and Chapter 9, paragraphs 2.25-33, infra.
2.61 The Respondent refers to the proceedings before the ICTY including
Gotovina et al in which the trial is under way. The Respondent states that it
intends to rely on transcripts from the case which contain witness testimony
and states that these relate to ‘first hand experiences of impartial persons who
84
Annex 32.
85 Ibid..
86 Ministry of Culture, Damage to Cultural Property on Croatian Territory, Memorial
Appendices, Vol 5, Appendix 7.
87
Bosnia, para. 378, citing Nuclear Tests (Australia v. France), Judgments, I.C.J. Reports
1974,pp.263ff.,paras.32ff.andFrontierDispute(BurkinaFaso/RepublicofMali),Judgment,
I.C.J. Reports 1986, pp. 573-574, paras. 38-39.
88 Counter-Memorial, paras. 169-173.
89 Counter-Memorial, para. 171.
90 Counter-Memorial, para. 174. 32
were in the direct position to get knowledge about the key events.’ The Re-
spondent also intends to rely on documents admitted as evidence in that case
and refers to the international monitoring missions, UNMO and ECMM.
2.62 The Applicant will address the substantive issues arising from this
evidence later in the Reply (see Chapters 9 and 12). In any event, it is clear that
each Party can rely only on evidence that is actually available to it. In 2001,
there were no ICTY judgments relating to the conflict in Croatia on which the
Applicant could rely in support of its case. To the extent that there were in-
ternational monitoring missions, the Applicant has submitted evidence from
these which relates to the events on which its claim is based.
92
2.63 The Respondent refers to other documents on which it seeks to rely.
These include statements from officials and press reports. In relation to its
own claim therefore, the Respondent is content to rely on types of evidence
including press reports and official statements, which it has invited the Court
to dismiss as inadmissible when relied on by the Applicant.
2.64 In the Counter-Claim, the Respondent lays great emphasis on the
transcript of a meeting which took place on Brioni island and was attended by
the senior-most Croatian military personnel, the so-called ‘Brioni minutes’. 94
The Applicant will address the substantive arguments raised by the Respon-
dent in respect of this material later in Chapter 11 of the Reply. In relation to
the status of the transcript as a method of proof however, the Applicant’s posi-
tion is that the Respondent has made selective use of the minutes and asks the
Court to make unjustified and improper inferences from them.
2.65 The Respondent also relies on the Report of the Croatian Helsinki
Committee for Human Rights (‘CHC Report’). A preliminary analysis of the
data in the CHC Report was carried out by the Croatian Directorate for De-
tained and Missing Persons, with the aim of verifying its reliability and ac-
curacy. An analysis of the lists from Report “Military Operation “Storm”
and It’s Aftermath” was carried out by comparing the data in the Report with
official records and documentation. This comparison broadly identified the
following significant methodological flaws and mistakes:
1. The biographical details essential for identification are inaccurate
or incomplete for a large number of those said to be killed. (e.g.
wrong name, name of fathers, wrong dates of birth/death, wrong
location).Inanumberofcases,onlythevictims’nameisprovided
91
Counter-Memorial, para. 177.
92 Counter-Memorial, paras. 178-183.
93 Counter-Memorial, para. 181.
94 Counter-Memorial, para. 179 and its Annex.
95 Counter-Memorial, Annex 61, CHC Report was compared with the Applicant’s official
records and documentation. 33
further complicating the process of comparison with other data,
and definite identification.
2. Mistakes in characterising members of the SVK and paramilitary
formations as civilians.
3. Mistakes or disparities in relation to the details regarding the
circumstances of deaths. The CHC lists all persons as “killed,”
whereas official records and documentation provide differently
e.g. a number of individuals on the List appear to have died from
natural causes, accidents, or were combatants who are missing
96
and so on.
2.66 So far as the Krajina Serbs Centre for Collecting Documents and In-
formation (‘Veritas’) list is concerned, the Applicant does not consider this
organization to be neutral and independent, particularly if account is taken
of the duties and tasks of its head, Savo Štrbac. Mr Štrbac was Secretary in
several ‘Governments of the Republika Srpska Krajina’, under which ethnic
cleansing of the non-Serb population in that area was carried out. This fact
alone calls into question his neutrality and objectivity in the presentation of
facts about the events and victims of the war. 98
2.67 The list of Serb casualties declared by Veritas in August 2005 to be
victims killed by the Croatian armed forces is evidence of Mr Štrbac’s lack of
objectivity and his readiness to manipulate the presentation of events of and
facts about the Homeland War. As will be elaborated on in the Chapters that
follow, the Veritas List contains various discrepancies, mistakes and method-
ological flaws. By way of example only, it lists as dead or missing individuals
who are either still alive or were alive when the list was published, individu-
als whose death was unconnected to the military operation, (including indi-
viduals who died in accidents or through natural causes): see further, Chapter
11, paragraph 11.68. While an analysis of the List is ongoing, the Croatian
Memorial-Documentation Centre of the Homeland War has established that
numerous claims in the list that are false.
2.68 Likewise, Mr Štrbac is morally discredited by statements during the
trial of Nikola Gagić, a soldier of the ‘Serb Army of Krajina’ in which he
acted as counsel for defendant. Nikola Gagić was tried for the murder of two
elderly and unarmed civilians of Croatian nationality in their house in No-
vember 1991. Mr Štrbac asked that the defendant be acquitted because, among
other things: “he committed the crime against persons whom he quite well-
foundedly regarded as members of the other party to the conflict and a soldier
can never be held accountable for murdering the enemy“. “In this regard”
96 Chapter 11, para. 11.92.
97 Counter-Memorial, para. 180; Annex 66.
98 See also Chapter 11, para. 11.81. 34
continued Mr Štrbac, “it is of no significance that the victims were civilians
because this was a civil war and enemy territory“. He goes on to conclude the
following: “It is obvious that the first-instance court neglected those issues
and based its conclusions, on peacetime instead of wartime circumstances
which, when it comes to the crime of murder, essentially change the notion of
99
wrongfulness.”
2.69 The Respondent also repeatedly criticises the Croatian criminal jus-
tice system. 100That criticism is misplaced, as is apparent from a number of
sources (the Applicant notes at this juncture that the Court ought to consider
the full context of all material relied upon by the parties, including any expla-
nation of that material arising from subsequent documents or information):
1. On 13 October 2006, anAgreement on cooperation in prosecuting
of perpetrators of war crimes, crimes against humanity and
genocidewassignedbetweenChiefStateAttorneyoftheRepublic
of Croatia, Mladen Bajić and the War Crimes Prosecutor of the
Republic of Serbia, Vladimir Vukčević (the agreement entered
into force on signature). ThisAgreement provides:
“Provisionsofthisagreementshallbeappliedforthecriminal
proceedings for war crimes committed on the territory of the
Republic of Croatia, against the citizens of the Republic of
Croatia and the Republic of Serbia by perpetrators residing
and/or possessing the citizenship of the Republic of Croatia
or the Republic of Serbia.
Cooperationintheexchangeofevidenceandotherinformation
in war crime cases is possible during the entire criminal
proceeding up to the moment of rendering of the final verdict
by the competent court of the participating country.”
TheAgreement goes on to provide for the request and transfer of
information relevant to w101crimes proceedings, crimes against
humanity and genocide.
At least from the date on which the Cooperation Agreement
was signed and entered into force, it is difficult to see how the
Respondent can maintain the position that criminal proceedings
for war crimes, crimes against humanity and genocide in Croatia
are inherently flawed or unfair given that government of Serbia
has committed itself to cooperating in such proceedings.
99
HR-HMDCDR, Supreme Martial Court, II K No. 111/92, 7 May 1992, Decision, box
1001.
Counter-Memorial, paras. 184-186.
101 Agreement on Cooperation in the Prosecution of Perpetrators of War Crimes, Crimes
Against Humanity and Genocide Between the Chief State Attorney of the Republic of Croatia
and the War Crimes Prosecutor of the Republic of Serbia, 13 October 2006, Annex 81. 35
2. A recent OSCE Report on war crimes proceedings in Croatia,
dated 27 October 2009, states that:
“One should also consider the visible results achieved by
Croatiainthelast10yearsthroughtheassistanceandtheactive
fieldmonitoringoftheOSCE.Significantimprovementswere
attained in the field of war crimes prosecution. Croatia, like
other States in the region, is conscious of its obligations under
international law and continues working towards judicial
addressing of war incidents as comprehensively as possible.
Decisions and steps taken, including the prosecution of high-
ranking generals and civilian authorities, were not easy. Out
ofsixitemsontheagendaofthePlenarieswiththeMinisterof
Justice, two only remained as main issues at the beginning of
2009: in absentia convictions and serious unprosecuted war
crimes. The issues of adequate defence, inter-State regional
co-operation, integrity of witnesses and use of video-link
were considered completed or referred to the technical level.
The important process of systematic revision of in absentia
verdicts from the early 1990s that took place during this year,
made the discussion in the Plenaries almost completed with
one only main remaining item: the need for re-invigorated
efforts to pursue serious unprosecuted war crimes…” 102
3. In May 2009, the English High Court refused to set aside an
extradition decision concerning a Serb convicted in absentia of
war crimes by a Croatian court, who then fled to the UK, Milan
Španović v Government of Croatia and Secretary of State for the
103
Home Department. One of the grounds on which Mr Španović
resisted extradition was that he would receive an unfair trial
because he was an ethnic Serb (as the High Court confirmed,
he was entitled to a retrial in Croatia, having been convicted in
absentia). The High Court found that he would get a fair trial,
notwithstanding that he was an ethnic Serb. The Court concluded
that:
“the criminal law and procedure of Croatia, if applied to the
re-trial of the appellant is well able to provide him with a
fair trial”04
“On the material before us, we are satisfied that Croatia
102 OSCE Status Report on Mandate-related Developments and Activities, 27 October 2009, p. 2.
103[2009] EWHC 723 (Admin), judgment of 15 May 2009.
104 Ibid., para. 66. 36
will provide a fair trial to the appellant, even though he is a
person of Serbian ethnicity accused of war crimes against
Croatians.” 105
The High Court also noted that from 1993 to 2006 the Croatian
Supreme Court had dealt with 263 cases of war crimes, not one
finaljudgmentofwhichhadbeenchallengedbeforetheEuropean
Court of Human Rights. 106
2.70 The Respondent has stated that it will challenge the credibility of
the findings of the Croatian courts on two grounds: first that Croatian courts
apply a definition of genocide which is not fully in accordance with the 1948
Genocide Convention and second that procedurally, trials before Croatian
courts have been characterized by ‘a lack of impartiality and fairness’.
2.71 In relation to the definition of genocide applied by Croatian courts,
the Respondent states that the definition ‘largely reiterates’ the definition con-
tained in Article 2 of the Convention but expands that definition to include
‘forcible population displacement.’ 107The Respondent argues that such a defi-
nition is inconsistent with the Convention and with recent case-law of the
Court and the ICTY. It is correct that the Croatian Criminal Act includes with-
in the definition of genocide “forcible population displacement“. It should,
however, be noted that this definition was inherited from the SFRY’s penal
legislation 108and the same definition was, until 2006, included in the Re-
spondent’s legislation. 109 It should also be pointed out that a similar extension
of the definition of genocide has been included in the legislation of numerous
other countries. 110
2.72 Furthermore, as the Court specifically held in the Bosnia case: ethnic
cleansing can occur in parallel with acts of genocide “and may be significant
as indicative of the presence of a specific intent (dolus specialis) inspiring
those acts.” 111The key mental element is the special intent of the perpetrator
and, under Croatian law, it must be shown that the alleged perpetrator intend-
ed to destroy in whole or in part a national ethnical, racial, religious group.
2.73 Accordingly, in relation to Koprivna case which the Respondent re-
105
106 Ibid., para. 69.
Ibid., para. 68.
107 Counter-Memorial, para. 187.
108 See Art. 119 of the OKZRH (Basic Criminal Act of the Republic of Croatia), Official
Gazette, no. 53/91 and its amendments published in the Official Gazette, nos. 39/92 and 91/92.
Except for minor lexical changes, the same definition was incorporated into the Criminal Act
of the Republic of Croatia of 19 September 1997. See Extracts from Criminal Codes of the
SFRY, Serbia and Croatia, Annex 91.
109
110 Ibid..
Such as Bolivia, Estonia, Ethiopia, Italy, Costa Rica, Lithuania, Nicaragua, Ivory Coast,
Paraguay, Russia, Salvador, Slovenia, Spain and to a certain extent Armenia, which treat
forcible repopulation as a genocidal act.
111 Bosnia, para. 190. 37
fers to it is not correct to say that a conviction of this kind under Croatian
law could not also constitute a violation of the Convention itself. It is correct
that in the Koprivna case the defendants were convicted on the basis of “for-
cible population displacement“, in accordance with Croatian legislation. This,
however, does not mean that, in the case in question, there was no actus reus
within the meaning of Article II of the Genocide Convention, as the Respond-
ent claims in the Counter-Memorial.
2.74 In relation to the Velimircase of September 1996, the judgment in
which is attached to the Counter-Memorial, the Respondent seeks to show
that the court was not entitled to convict for genocide. The Applicant refutes
the criticisms made by the Respondent and refers to a signed statement pre-
sented by Judge Melita Avedić in which the Judge notes that:
“The main hearing was held in the presence of the defendant Jakov
Velimir, who, during the main hearing, confessed to committing the
crimes he was charged with.
Besides the defendant’s confession, the Court also inspected the
substantive evidence in the form of a permit number 224, issued by
“ the Serb Army of Krajina - 39th Corps”, clearly showing that the
defendant was the member of so called “ the Serb Army of Krajina”
and from “revers - personal issue” it is clear that he was a First
Sergeant issued with weapons and ammunition.
Taking into consideration that the defendant confessed to the crime
as well as mentioned substantive evidence, the Council of the County
Court in Sisak found the defendant guilty and sentenced him to
113
aforementioned prison sentence.”
2.75 In relation to the 2004 OSCE Mission Report on Croatian Domestic
114
War Crimes Trials, the Respondent includes a citation in which it is stated
that the crimes prosecuted as genocide before the Croatian courts ‘were not of
the gravity usually associated with verdicts of international tribunals ascrib-
ing genocidal intent’ and the report goes on to state that a qualification of the
‘expulsion cases’ as constituting war crimes appears more appropriate. As
discussed above, later reports are very positive about the progress made in
addressing issues identified as having arisen in the early 1990s.
115
2.76 In relation to the Svetozar Karan case, also referred to by Serbia, it
is important to point out that the President of Gospić County Court reported
thejudgeinthatcase,JudgeBrankoMilanović,fordisciplinaryoffensesof ju-
112 Counter-Memorial, para. 188.
113Sisak County Court, Statement by Judge Melita Avedić on the Criminal Case Against
Jakov Velimir, 2 July 2010, Annex 87.
114
115Counter-Memorial, para. 191.
Counter-Memorial, para. 195. 38
dicial misconduct, disturbing the work of the Court, significantly influencing
the functioning of the judicial authority and damaging the reputation of the
Court and the judicial office. The Judge was subsequently held responsible for
those offences on 8 July 2009 and relieved of his duties. 116In relation to the
Karan case itself, the President of the Supreme Court of the Republic of Croa-
tia ceded the case to the County Court in Karlovac being another court of gen-
eral jurisdiction. The verdict was rendered on 30 June 2005 and the defendant
was found guilty and sentenced to 7 years in prison. On 7 February 2006, the
Supreme Court of the Republic of Croatia, upon deciding on the defendant’s
117
appeal, upheld the verdict of the County Court in Karlovac.
2.77 The Applicant strongly denies that there has been an alleged ‘lack of
impartiality and fairness’ in the prosecution and trials in genocide and war
crime cases in Croatia.
2.78 In relation to the Respondent’s allegations about the conduct of the
Lora camp case, 118the Applicant denies those allegations and refers to a sum-
mary of the case prepared by the Court President and to a statement signed
by the Judge in the case, Spomenka Tonković, and dated 2 July 2010, both
annexed to this Reply. 119 In his statement, the Judge notes for example that:
“each of the summoned witnesses was guaranteed a free passage to and out
of the Republic of Croatia even if there was an ongoing criminal procedure
against them or an arrest warrant or a request to render them into custody, all
of this in accordance with the legal protection provided for the witness by our
laws (Article 25 of the International Legal Aid Act for Criminal Issues “Of-
ficial Gazette”178/04) and bilateral agreement between the two countries”.
The other allegations are also denied. In a statement dated 5 July 2010, the
Split County Court Judge, Slavko Lozina, also denies the various allegations
made by the Respondent in relation the conduct of the Lora case and notes, in
relation to the allegation that the President of the Court shook hands with the
defendants that:
“The stand where the judges and jurors are sited is quite far away
from the place where the defendants are sitting - on one hand, and on
the other hand there is clear substantial evidence showing that this is
not true, as there are recordings of all the main hearings held in the
aforementioned courtroom as HRT - National Television recorded all
120
the hearings.”
116 Decision of the State Judicial Council of the Republic of Croatia, SP-23/07, dated 8 July
1179, Annex 83.
Overview of the Karan Proceedings, compiled by the Office of the President of the
Karlovac County Court, Karlovac, 13 July 2010, Case number: Class: 018-04/10-09/40, Entry
no.: 514-09-02-10-7, Annex 89.
118 Counter-Memorial, para. 196.
119 Split County Court, Statement by Court President, Ante Perkušić, on the Progress of
Proceedings in the Lora case, 2 July 2010, Annex 85; Split County Court, Statement by Judge
Spomenka Tonković, on the Proceedings in the Lora case, 2 July 2010, Annex 86.
120Letter from Split County Court Judge, Slavko Lozina, to the President of the County Court 39
2.79 Furthermore, in relation to the Respondent’s allegations concerning
an alleged lack of impartiality in Croatia’s courts, it should be noted that, in
addition to the Španović decision referred to above, there have been several
decisions to transfer cases to the Croatian criminal jurisdiction made by the
ICTY and by the Australian High:
1. In the proceedings brought against Rahim Ademi and Mirko
Norac for alleged crimes against humanity and war crimes,
based on the Prosecutor’s request, the ICTY transferred
(referred)thosetwocasestotheCroatiancourtsinaccordance
with Rule 11bis of the Tribunals Rules of Evidence and
Procedure.Foracasetobereferredtothenationalauthorities,
the Referral Bench must be fully satisfied that the accused
will be tried in accordance with international standards.
In the proceedings against Ademi and Norac, the ICTY
ordered referral on 14 September 2005. The defendants were
subsequently tried before the Zagreb District Court. On 30
May 2008,Ademi was acquitted of all charges and Norac was
sentenced to seven years imprisonment. 121
2. The High Court of Australia 122upheld the 2007 decision of
the local court in New South Wales to order the extradition of
Mr Vasiljković (also known as ‘Captain Dragan’) to Croatia
tofacetrialforwarcrimes.Inproceedingsbeforeamagistrate
to determine his eligibility for surrender, the respondent
contended, inter alia, that there were substantial grounds for
believing that if surrendered to Croatia he might be punished
by reason of his political opinions. The respondent failed
to satisfy the magistrate that there were substantial grounds
for believing that any extradition objection existed and the
magistrate determined that he was eligible for extradition.
However, on 2 September 2009 the Full Court of the Federal
Court ofAustralia upheld the respondent’s appeal on the basis
that, in sentencing for offences of the kind alleged, prior
service in the Croatian armed forces was treated by Croatian
courts as a mitigating factor and was ipso facto not available
to those who had fought on the Serbian side of the conflict.
The Court held there were therefore substantial grounds for
believing that the respondent might be punished, detained
or restricted in his personal liberty by reason of his political
opinions.
in Split, 5 July 2010, Annex 88.
121Prosecutor v Ademi & Norac, IT-04-78, Case Information Sheet, available at www.icty.
org/x/cases/ademi/csi. See also Chapter 10, infra.
122Republic of Croatia v Sneddon [2010] HCA 14 (19 May 2010). 40
3. However, in its judgment overturning that decision, the High
Court observed that the application of the mitigating factor
of service in the Croatian armed forces during the relevant
conflict “does not evidence any advertence by the Croatian
courts to the political opinions of those who are not able to
invoke its benefit.”123 The Court also noted that theAttorney-
General of Croatia had indicated to the Attorney-General of
AustraliathathewouldrequesttheconsentofthePresidentof
the Supreme Court of Croatia that the trial of the respondent
be held before one of the four County Courts in Croatia
specially designated to adjudicate alleged war crimes. The
Court noted that significance of that assurance was twofold:
those County Courts are located in Osijek, Split, Rijeka and
Zagreb, which were not regions where alleged war crimes
took place, and second, the County Courts were staffed by
124
professional judges.
2.80 The Respondent has commented adversely on the fairness of trials
125
in absentia which have taken place in Croatia. First, it should be noted that
of the total of 464 persons convicted in absentia, in the case of 93 persons a
request for the reopening of criminal proceedings was submitted, while in the
case of 34 the proceedings were returned to the investigation phase, and in the
case of 46 to the trial phase. Thus, the initial figure of 464 persons convicted
in absentia fell to 367 as of 30 September 2010. 126The English High Court
recently confirmed in the Španović case that any defendant tried in absentia
by Croatia was entitled to an automatic retrial: supra, paragraph 2.69(3).
(5) T h er e s p ne n’s D uT YTo p r o vDie a ex p l a ni o n
2.81 Whilst the party asserting a claim generally has the burden of proving
it, the other party also has obligations in relation to the evidence related to that
claim. The latter should cooperate in putting before the tribunal all relevant
evidence. In this way, both parties assist the Court in establishing the truth.
2.82 It is clear from the jurisprudence of the Court that there are
circumstances where the Court may require the party against whom an
assertion is made to provide an explanation. For example in its judgment in
Corfu Channel, the Court stated:
“It is true, as international practice shows that a State on whose
territory or in whose waters an act contrary to international law has
123
Ibid., para. 25.
124 Ibid., para. 35.
125 Counter-Memorial, para. 198
126 Table showing the numbers of persons convicted for war crimes in absentia by a final
judgment as of 30 September 2010 prepared by the Deputy State Attorney of the Republic of
Croatia, Annex 90. 41
occurred may be called upon to give an explanation. It is also true that
that State cannot evade such a request by limiting itself to a reply that
it is ignorant of the circumstances of the act and of its authors. The
State may, up to a certain point, be bound to supply particulars of the
use made by it of the means of information and inquiry at its disposal.
But it cannot be concluded from the mere fact of the control exercised
byaStateoveritsterritoryandwatersthatthatStatenecessarilyknew,
or ought to have known, of any unlawful act perpetrated therein, nor
yet that it necessarily knew, or should have known, the authors. This
fact, by itself and apart from other circumstances, neither involves
127
prima facie responsibility nor shifts the burden of proof.”
The Court then held:
“Ontheotherhand,thefactofthisexclusiveterritorialcontrolexercised
by a State within its frontiers has a bearing upon the methods of proof
availabletoestablishtheknowledgeof thatStateas tosuch events.By
reason of this exclusive control, the other State, the victim of a breach
of international law, is often unable to furnish direct proof of facts
giving rise to responsibility. Such a State should be allowed a more
liberal recourse to inferences of fact and circumstantial evidence.
This indirect evidence is admitted in all systems of law, and its use
is recognized by international decisions. It must be regarded as of
special weight when it is based on a series of facts linked together and
leading logically to a single conclusion.” 128
2.83 In the present case, the physical acts upon which the claim of geno-
cide is based did not take place in the territory of the Respondent. However
many of those acts took place in circumstances where the Respondent was ex-
ercising control over the territory in question, either because of the presence
of the JNA, an army which, from at least July 1991, was pursuing the aims
of Serbia, 129or because rebel Serbs in Croatia, aided and supported by the
FRY/Republic of Serbia, had taken over control of Croatian territory on the
130
basis of purported ‘autonomy’ and eventually purported statehood, in some
cases both requirements were met. This element of FRY/Serbian territorial
and/or military, as well as political, control is present to a degree that justifies
the Court requiring Serbia to provide an explanation for the events on which
the claim is based. Furthermore, the planning of the genocidal campaign on
which this claim is based, did take place, to a large extent, on the territory of
131
the FRY/Serbia, in Belgrade.
127 Corfu Channel case, p. 17.
128 Ibid., p. 18.
129 See infra, Chapter 4, paras. 4.53 et seq., which discuss, inter alia, the ICTY’s findings in
this regard in Prosecutor v. Mrkšić et al, IT-95-13, Trial Chamber Judgment, 27 September
2007 (‘Mrkšić)’.
130 See infra, Chapter 3; see also, Memorial, Chapter 2, paras. 2.86-104.
131
See, for example, Memorial, Chapter 2, paras. 2.210-212 and Chapter 3 of the Reply, infra. 42
2.84 The Applicant has produced evidence of a widespread and system-
atic campaign to eradicate the Croat population from parts of Croatia by the
Serbian authorities. When the pattern of conduct is considered as a whole,
the campaign can only be explained one based on genocidal intent. 132It is for
Respondent to produce evidence in rebuttal in relation to the intent of those
directing and conducting that campaign.
(6) Th er e s p ne n’s re f u s lo Disclos e aTe r i aev iDe n c e
2.85 On 30 July 2010, the Applicant requested the Court to call upon the
Respondent to produce certain documents. 13The documents requested ema-
nated from, or implementing the decisions of, four entities: the SFRY Presi-
dency; the Supreme Command Staff; the ‘Meetings of the Six’ and the Su-
preme Defence Council. These entities exercised de jure or de facto control
and command over the Serbian armed forces in the period 1 April 1991-30
November 1995. The Applicant has reason to believe that the documents con-
tain significant information of crucial relevance to the issues in the case.
2.86 The Respondent responded to that request by observations dated 7
September 2010, following a meeting held between the Parties in Belgrade
on 3 September 2010. Significantly, the Respondent has agreed in principle
to disclose the documents sought, where they are in its possession. It has,
however, said in relation to a number of documents that they are classified as
‘Confidential’ and can therefore only be disclosed following an internal gov-
ernmental approval process; this indicates that the delay is due to procedural
requirements and not any other objections.
2.87 The documents the Applicant has been provided with at the time of
writing contain some relevant information. However, it is the Applicant’s be-
lief that the outstanding documents are those that contain the most relevant
and incriminating information in relation to this case. It is now more than 4
monthssincetherequestwasmade,and3monthssincetheRespondentagreed
in principle to provide the documents. It is inconceivable that the Respondent
could not have obtained the necessary internal approval for the release of the
documents, if its purported intention to disclose them to the Applicant was
genuine.
2.88 In the Bosnia case, the Court stated:
“Although the Court has not agreed to either of the Applicant’s
requests to be provided with unedited copies of the documents, it has
not failed to note the Applicant’s suggestion that the Court may be
134
free to draw its own conclusions.”
Similarly, many of the component elements of the Applicant’s case that the Respondent is
responsible for complicity in and failure to prevent genocide took place on the territory of the
FRY/Serbia.
132See infra, Chapter 9.
133 Pursuant to Article 49 of the Court’s Statute and Article 62 of the Court’s Rules of
Procedure.
134Bosnia, para. 206. 43
On the basis of the facts of that case, and in view of the fact that the request
was made very late in the proceedings, the Court refused to request that Ser-
135
bia disclose the unredacted versions of the SDC documents. In these pro-
ceedings, the Applicant’s request for disclosure has been made promptly and
in good time. The Respondent has accepted in principle that the documents
fall to be disclosed, but has so far failed to comply fully with that principle in
its actions. The Applicant hopes that it will not be necessary to make a formal
application to the Court to order disclosure of the documents that have so far
been withheld. In the Applicant’s submission, should such an application be
made, the Court should reaffirm the general principle that the party with ac-
cess to evidence (potentially) relevant to the determination of a key issue in
the case should produce that evidence, or face the prospect of adverse infer-
ences being drawn by the Court.
2.89 In the Parkercase an international tribunal stated that:
“it is the duty of the respective Agencies to cooperate in searching
out and presenting to this tribunal all facts throwing any light on the
merits of the claim presented. The commission denies the right of the
respondent to merely to wait in silence in cases where it is reasonable
that it should speak.” 136
The tribunal also made the following observation:
“In any case where evidence which would probably influence its
decision is peculiarly within the knowledge of the claimant or of the
respondent Government, the failure to produce it, unexplained, may
be taken into account by the commission in reaching a decision.” 137
2.90 Similarly, in Avena and other Mexican nationals (Mexico v United
StatesofAmerica),theCourtindicatedthatapartywhichclaimsthattheother
party has evidence necessary for the proof of the former’s case (in that case
relating to the nationality of certain individuals) must make an effort to secure
that evidence from the latter by requesting it:
“It was for the United States to seek such information, with sufficient
specificity, and to demonstrate both that this was done and that the
Mexican authorities declined or failed to respond to such specific
requests. Without having made such a request, the former could not
claim that the latter was not cooperating in the production of evidence
138
which was in its possession.”
135InhisDissentingOpinion,Vice-PresidentAl-KhasawnehcriticizedthispartoftheCourt’s
approach, see para. 35.
136 USA v Mexico (1926) 4 UNRIAA p. 39.
137 Ibid..
138
Avena and other Mexican Nationals (Mexico v United States of America) 2004 ICJ
Reports, para. 57. 44
2.91 The Applicant has requested, with ‘sufficient specificity’, informa-
tion from the Respondent. The Respondent has agreed to produce only a part
of that information and has provided no adequate or persuasive reason for its
failure to provide the remainder. 45
CHAPTER 3
THE HISTORICALAND POLITICALBACKGROUND
INTRODUCTION
3.1 In its Memorial, the Applicant provided the Court with a historical
and political background to assist in understanding the overall context of the
conflict in Croatia and the history of the various entities concerned. It set out
the backdrop against which the Respondent carried out genocidal acts against
the Croat population in Croatia. The Respondent, however, contends that the
historical and political background deals with events that are “largely irrel-
evant” to the dispute. As stated in the Memorial, genocide is not a single act
but a series of acts, a campaign that occurs in a given geographical and histor-
ical context, even though, legally and morally, the genocidal acts themselves
can never be excused by reference to historical or any other factors. Thus, 2
unlike Serbia, Croatia believes the background which relates to the events
and developments which occurred just before the period under consideration
in the present case, is relevant and necessary for a proper appreciation of the
facts.
3.2 Despite its claim that the background is “largely irrelevant” the Re-
spondent has provided the Court with its own detailed historical and political
account.In this chapter,theApplicantresponds to theRespondent’s version of
events as set out in Chapter V of the Counter-Memorial and elaborates upon
the background where necessary.
3.3 In its Memorial, the Applicant presented the historical and political
background in three parts:
Part One described the ethnic composition and the political and
constitutional background of the SFRY. It set out the central importance
of the constitutional structure and the territorial borders of the SFRY
and each of its constituent Republics, including Croatia, as they existed
from the adoption of the 1974 SFRYConstitution until the period when
3
the process of dissolution of the SFRY entered its final stage. By and
large, Serbia has not challenged or contradicted this part of the Chapter,
and for the sake of brevity this section stands admitted. 4
Part Two described the events leading up to the genocidal acts that
occurred in Croatia after its declaration of independence in June 1991,
1
2 Counter-Memorial, para. 389.
Memorial, para. 2.01.
3 Memorial, paras. 2.05-35.
4 The Counter-Memorial refers to the Memorial, para. 2.08, regarding the NDH (which is
dealt with at 3.17 et seq.) and Memorial, para 2.11 (regarding the “Croatian Spring” a popular
movement that was put down in 1971).
Volume 3.indd 45 12/14/2010 2:20:13 PM 46
andwhicharethesubjectofCroatia’sApplicationtotheCourt.Itfocused
on the period following the death of President Tito in 1980 up until the
actions of the Serbian controlled members of the SFRY Presidency in
seekingtoblocktheappointmentoftheCroatianrepresentative,Stjepan
5
Mesić, as President of the SFRY Presidency in May 1991. This period
witnessed the rise of extreme Serbian nationalism, which coincided
with Slobodan Milošević’s rise to power, leading to a situation in which
CroatiawasessentiallypresentedwithtwooptionsbySerbia:(i)itcould
remain within a federal Yugoslav state dominated by Serbian interests,
or (ii) it could become an independent state with a sharply reduced
territory, with Serbia taking control of large swathes of territory which
had been within Croatia’s borders since at least World War II. When
Croatia’s citizens opted overwhelmingly for independence in May
1991, Serbia embarked on a campaign of territorial acquisition with
the object of establishing Serbian control over parts of the Republic of
Croatia.ThiscampaignwasconductedbytheSerbianleadership,which
controlled the Yugoslav People’s Army (JNA) and paramilitary groups
which were either incorporated into the structure of the JNA or were
under the effective control of Serbia.This campaign of “Serbianisation”
of Croatian territories was accompanied by the commission of genocide
against a significant part of the Croatian population of Eastern and
Western Slavonia, Banovina, Kordun and Lika and Dalmatia. It is these
6
acts of genocide which are the subject of Croatia’sApplication.
Part Three described the events that occurred from the end of 1991,
after the JNA, Serb paramilitaries and Serb rebels, occupied large parts
of Croatian territory, through to the winding up of the United Nations
Transitional Administration for Eastern Slavonia (‘UNTAES’) in
January 1998. It described the efforts of the international community
and the involvement of the United Nations in seeking to resolve the
crisis in the former SFRY, including the deployment of peacekeeping
missions and the establishment of United Nations Protected Areas
(‘UNPAs’). It also covered the proclamation of the FRY/Serbia, and the
adoption of the Dayton PeaceAgreement. 7
3.4 The Respondent’s account of the historical and political events is in-
complete, inaccurate and in numerous places misleading. The purpose of the
5 Memorial, paras. 2.36-116.
6
The military campaign from May 1991 to December 1991 in the context of which several
genocidal acts were carried out was dealt with in Chapter 3 of the Memorial. That also
provided an overview of the role of the JNA and the paramilitaries, and described the direct
control which Serbia had over these forces which perpetrated the genocide. The genocidal
acts were described in detail in Chapters 4 (Eastern Slavonia) and 5 (other parts of Croatia)
of the Memorial.
7 Memorial, paras. 2.117-162.
Volume 3.indd 46 12/14/2010 2:20:13 PM 47
present Chapter is to set the record straight. This Chapter is organized as fol-
lows:
Section I addresses the growth of extreme Serbian nationalism,
responding to the Respondent’s arguments on the subject. It also
responds to Serbia’s allegation regarding the growth of nationalism
in Croatia and the allegedly discriminatory actions of the Croatian
Government.
Section II sets out how influenced by the propaganda and hate
campaign emanating from Belgrade, political representatives of the
Serb community in Croatia refused to accept the authority of the
Croatian Government and, under the direction, command, and control
of the leaders of the Republic of Serbia rebelled against the Republic
of Croatia. This involved establishing areas of Serb occupation within
the territory of Croatia in order to extend Serbia’s borders with a
view to establishing a “Greater Serbia”. During this period “Serb
Autonomous Regions” were “proclaimed” and finally the so-called
Republic of Srpska Krajina (‘RSK’) was “established.”
Section III briefly describes the intensification of the conflict in
Croatia (March 1991 onwards) where the JNA, purportedly acting
8
as a “neutral peacekeeper” , first covertly and later openly sided with
the rebel Serbs. Aplanned and strategic programme of genocide was
carried out against Croatia’s Croat population. It also describes the
dissolution of the SFRY and the take over of its federal institutions
by Serbia. Finally, it touches upon the human rights abuses suffered
by Croatia’s Croat population at the hands of the JNA and the rebel
Serbs and briefly responds to Serbian allegations of human rights
abuse against the Serbs in Croatia.
Section IV briefly deals with the role of the international community,
moreparticularlytheUN’sengagementthatresultedinthedeployment
of the United Nations Protection Force (‘UNPROFOR’) and the
establishment of the UNPAs.
3.5 The Applicant invites the Court to read the Respondent’s Counter-
Memorial with the degree of care and attention to detail that it deserves. For
example the Court should note the various admissions made by the Respon-
dent (for e.g. para. 420 (Serbia admits that Serbian nationalists misused recol-
lections of the past); para. 423 (admits that in Serbia’s “undemocratic regime”
prior to October 2000 Serbian nationalism was the “leading political idea”);
para. 434 (“hate speech was abundant in the Serbian media” in the 1980’s and
8 Counter-Memorial, inter alia para. 501.
9 On the role of the JNA, see Chapter 4, infra.
10
See Chapters 5 and 6, infra.
Volume 3.indd 47 12/14/2010 2:20:13 PM 48
1990s); para. 497 (Milošević manipulated the fears of the Serbs in Croatia and
misused this for his own purposes); 507 (that the JNA fought in alliance with
the rebel Serbs); para. 533 (the JNA leadership and the Serbian leadership
were “political allies”); para. 562 (that the so-called RSK “enjoyed the “politi-
cal and financial support of the FRY”). The Respondent’s Counter-Memorial
is equally noteworthy for the factual aspects which are not addressed, and
for the material which is omitted (see the numerous examples identified in
Chapters 5 and 6 of this Reply, infra). With regard to the material which is
included, the Counter-Memorial is noteworthy for the significant number of
contradictions and misrepresentations it contains. Both the content and the
omissions underscore the fragility of the Respondent’s arguments.
SECTION I: THE RISE OF NATIONALISM
3.6 The Memorial sets out in some detail the rise of nationalism in the
SFRY, and more particularly the rise of Greater Serbian nationalism after the
death of President Tito. It sets out how some in the Republic of Serbia began
to question the basic principles governing the structure of the SFRY, in partic-
ular the status of the two Autonomous Provinces of Kosovo and Vojvodina. 12
3.7 The Respondent argues that the Memorial (1) presents a “distorted
and at times inaccurate picture of Serbian nationalism” (emphasis added); and
(2) fails to mention the rise of Croatian nationalism. It is argued that Serbian
and Croatian Nationalism went “hand in hand as the crisis in the former SFRY
aggravated to the level of an armed conflict.” It is also argued that Croatian
15
nationalism is “directly responsible for the outbreak of conflict in Croatia.”
And finally it is argued that Serbian nationalism was “accompanied and mu-
tually re-enforced by the nationalism that flared up in Croatia and other parts
16
of the SFRY.” The Respondent’s claim that “Serbian and Croatian nation-
alisms went hand in hand” misrepresents the facts and attempts to shift re-
sponsibility for the war. While extreme and aggressive Serbian nationalism
and historic revisionism were rampant in Serbia and marked the second half
of the 1980’s, Croatian nationalism was subdued and defensive. The League
of Communists of Croatia, the Croatian communist party, headed by a Serb,
from 1986 to 1989, suppressed any form of nationalism in Croatia and it was
only with the start of the campaign for the first multiparty elections of April
17
1990 that there was any real public manifestation of Croatian nationalism.
11 Memorial, para. 2.36 et seq.
12 Memorial, paras. 2.39-42.
13
14 Counter-Memorial, para. 394, 422.
Counter-Memorial, para. 420.
15 Counter-Memorial, para. 422.
16 Counter-Memorial, para. 423.
17TheCroatianpoliticalleadership’salarmandfearcausedbytheoutburstofSerbnationalism
are described by B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], pp. 42-44.
Volume 3.indd 48 12/14/2010 2:20:13 PM 49
By then the security situation in Croatia had been compromised as a result of
outbursts of Serb nationalism.
3.8 In any event, the Respondent admits that prior to October 2000 “…
Serbian nationalism was the leading political idea.” This is therefore not in
dispute.
(1) T h eR iseo f seRb N aTi oNa l i s m
3.9 While the Respondent states that the Memorial is “frequently mis-
leading and inaccurate” in its account of Serbian nationalism, it only chal-
lenges two facts. First, Serbia claims that the Memorial fails to distinguish
between the Serbian communists who were not nationalists and nationalists
in the 1980s. In fact, the Memorial did distinguish between them. Second, 20
the Respondent claims that the Applicant exaggerates the importance of the
1986 Memorandum prepared by the Serbian Academy of the Sciences and
21
Arts (SANU, 1986 Memorandum). In this regard, it is submitted that the
importance of the 1986 Memorandum cannot be underlined enough.
3.10 In the Memorial the Applicant set out why the 1986 Memorandum
prepared by SANU, the umbrella institution of the Serbian scientific and
intellectual elite, was particularly important in fuelling the rise of Serbian
nationalism. Described as a ‘catalytic event’, the SANU Memorandum set
forth a Serb nationalist re-interpretation of the recent history of the SFRY and
23
carried considerable weight because of the authority of its authors. It reflect-
ed the basic precepts of the growing Serbian nationalist movement, which was
premised on the belief that Serbia and the Serbs in the Republics of the SFRY
outside Serbia were in a uniquely unfavorable situation within the SFRY. 24
Serbia takes issue with Croatia’s discussion about the SANU Memorandum
and argues that its description is an “enormous exaggeration”. 25
3.11 That the Applicant’s description is not exaggerated is borne out by a
number of independent sources. Silber describes the Memorandum as a “po-
litical bombshell,” stating that in it Serbian academics catalogued their na-
18 Counter-Memorial, para. 423.
19 Counter-Memorial, para. 427.
20
The Memorial distinguishes between Serbian communists and Serbian nationalists in
Memorial para. 2.49.
21 Counter-Memorial, para. 428.
22 Memorial, paras. 2.43-50. The Memorandum was first published in the Belgrade daily
newspaper Večernje Novosti (Belgrade), on 24 and 25 September 1986 and was subsequently
published in a limited edition and then republished several times; SANU Memorandum,
Memorial, Annexes, vol 4, annex 14.
23 The authors included the President and Vice President of SANU. Serbian novelist and
later first President of the FRY/Serbia, Dobrica Ćosić has been described as the driving force
behind the Memorandum, see Memorial, para. 2.43.
24 Memorial, paras. 2.43-50.
25
Counter-Memorial, para. 428.
Volume 3.indd 49 12/14/2010 2:20:14 PM 50
tional grievances, and when it was published the “country was convulsed.” 26
Similarly, an expert report from the ICTY, on the use of propaganda in the
conflict in the FRY/Serbia, found that it was the deliberate leaks of the SANU
Memorandum that sparked things off and raised the issue of Serbian national-
27
ism publicly. The SANU Memorandum’s key features include the authority
and influence of the institution that prepared it and the fact that it was pub-
28
lished and became publicly available.
3.12 The Memorial described how the emergence of extreme Serbian na-
tionalism was accompanied by the promotion of the theory that the Croats
29
had always had – and now maintained – a genocidal intent against the Serbs.
This theory, articulated in 1986, by a History Professor at the University of
Belgrade (and also a member of the Serbian Academy of Sciences and Arts),
gained currency. Subsequently, other Serbian historians and journalists, in-
fluenced by these ideas and by the ideas set out in the SANU Memorandum,
gave vent to the theory that the Croatian people were collectively to blame for
the large number of Serbs who were killed by the Ustasha between 1941-45
and were accordingly, by their very nature, genocidal in character and ad-
hered to a continuing genocidal intent against the Serbs. 30
3.13 From the early 1980s, several Serbian newspapers ran inflammatory
articles about the Ustasha concentration camp in Jasenovac, where terrible
crimes had been committed against Serbs, Jews, Roma/Gypsies, Croats and
others during the World War II. It is also worth noting that in parallel to
the adoption of SANU Memorandum, its authors along with Serbian political
leaders and high-ranking military officials of the JNA were also instrumen-
tal in perpetrating the Jasenovac myth. As early as October 1985, a SANU
26 Laura Silber & Allan Little, Death of Yugoslavia, Penguin, 1996 (‘Silber’), pp. 31-32. The
SANU memorandum stated inter alia:
“Except during the period of the NDH, Serbs in Croatia have never been a s
endangered as they are today. The resolution of their national status must be a top
priority political question. If a solution is not found, the consequences will be damaging
27 on many levels, not only for relations within Croatia but also for all of Yugoslavia. “
R de la Brosse, “Political Propaganda and the Plan to Create a State for all Serbs:
Consequences of Using the Media for Ultra-Nationalist Ends”, Report Compiled at the
Request of the OTP of the ICTY, 4 February 2003, pp. 34 et seq, Annex 106.
28 The role of Serbian intellectuals and media and the support which the memorandum re-
ceived from the Serbian leadership is elaborated and analyzed in the Professor de la Brosse
29port, ICTY, para. 38-40 and footnote 75.
Memorial, paras. 2.51-53 on the “Demonization of the Croats”. See also Hate Speech,
Memorial, vol 5, appendix 3, in particular paras. 30-38.
30 For the tendency to demonize Croats and to hide parts of Serbian history during World
War II such as Serbian complicity in the holocaust, see P.J.Cohen, “Serbian Anti-Semitism
31d Exploitation of the Holocaust as Propaganda”, (1992), Annex 100.
Memorial, para. 2.53
Volume 3.indd 50 12/14/2010 2:20:14 PM 51
32
delegation visited Jasenovac, where Vladimir Dedijer, a Serb historian and
SANU academic stated:
“however, the circumstances are difficult and younger generations
could be again called upon to defend their homeland. If they see the
graves of their predecessors being neglected, that could negatively
affect their fighting morale. And finally, it is only decent to thank
general Ivan Gošnjak, who during the sixties, invested a lot of energy
to advocate for Jasenovac to be marked visibly, because hundreds
of thousands of Serbs, Muslims, Jews, Roma and members of other
nations lost their lives here. I think, if necessary, theArmy will help us,
as it has helped us before.” (emphasis added)
3.14 The same year a mobile exhibition “The Dead Open the Eyes to the
Living” set up at the JNA quarters was also opened to the public. From the
map showing the exhibition sites it is easy to see that these were the areas
were genocidal acts were later perpetrated by the Respondent. The Jaseno-
vacmuseummobileexhibitionwasshowntosoldiersfromtheJNAfrom1986
to 1991. The presentation and the exhibited material, including photographs,
had a clear goal, to connect the crimes from World War II to the allegedly
“separatist” tendencies in the Socialist Republic Croatia. Simultaneously, nu-
merous articles in weekly journals intended for the JNA (e.g. Front, People’s
Army) contributed to this notion from 1986 to 1991.
3.15 The Respondent does not dispute this, admitting that “hate speech
wasabundantinSerbianmediaattheendofthe1980sandduringthe1990s”. 35
The Respondent attempts to justify this by saying that this phenomenon was
not confined to Serbia alone, and in any event none of the evidence presented
in the Memorial with regard to hate speech fall under the legal elements of the
36
crime of genocide.
3.16 As considered in Chapters 5, 6 and 9, infra, the ICTY proceedings
have provided a wealth of new material that was unavailable to the Applicant
when the Memorial was filed. One of these is the Expert Report on ‘Political
Propaganda and the Plan to Create a State for all Serbs: Consequences of us-
ing the media for ultra-nationalist ends’ prepared by Professor de la Brosse,
submitted in Milošević and annexed to this Reply (‘Professor de la Brosse
32
The delegation was made up of inter alia akad. Vladimir Dedijer, akad. Miloš Macura
together with the Lt General Đuro Meštrović, Milan Bulajić and Lt. Col Antun Miletić. See
thephotographoftheteaminthebookA.Miletić,KoncentracionilogorJasenovac[Jasenovac
Concentration Camp], vol. III, 1987, Belgrade, p. 573, Annex 111.
33
“Visit of the Working Group of the Committee of SANU to the Jasenovac Concentration
Camp, The Biggest Execution Site in Yugoslavia”, Excerpts from the Minutes of the Meeting
of 11 and 12 October 1985.
34 Exhibition sites of “The Dead Open the Eyes to the Living”, Annex 113.
35 Counter-Memorial, paras. 434-435.
36 See Chapter 8, infra for the legal elements of the crime of genocide.
Volume 3.indd 51 12/14/2010 2:20:14 PM 52
Report, ICTY’). It describes in detail how history was manipulated to serve
the objectives of Serb nationalists in Serbia; how Milošević relied on the state
controlled media to consolidate power; how the media was at the heart of the
Yugoslav war and was used to justify the use of force, stigmatize the oppo-
nent and create conspiracy paranoia. 38A number of conclusions are especially
pertinent to this case, for example:
1. Milošević knowingly used and controlled the media in Serbia
to impose the themes of nationalist propaganda to justify to the
citizens the creation of a state which would be home to all the Serb
people. 39
2. The policy of establishing a “State for all Serbs” included ethnic
policies that skilful propaganda justified in the eyes of Serbian
public opinion. 40
3.Themediawasusedasaweaponofwarsometimestoachievepolitical
goals, for instance to launch and defend the theme of a state for all
Serbs - and sometimes to accomplish strategic objectives such as the
capture of territory by force and the practice of ethnic cleansing. 41
4. Historical facts were imbued with mystical qualities to be used as
nationalist objectives so that the Serbian people could feel and
express a desire for revenge directed at the prescribed enemies, the
Croats, the Muslims - who were presented as the Devil. 42
5. Before Serbia triggered the war, Belgrade’s audio-visual media
broadcast many programs recalling historic events always likened
to the persecutions allegedly suffered by the Bosnian and Croatian
Serbs. 43
6. The highest Serbian moral and intellectual authorities were involved
in conditioning public opinion to justify the upcoming war with
Croatia. 44
37 Annex 106.
38 Professor de la Brosse Report, ICTY, pp. 59-74.
39
Professor de la Brosse Report, ICTY, pp. 5-6, where she describes how Milošević went
about controlling the media; see also pp. 26-28; 48 et seq, 79-84.
40 Professor de la Brosse Report, ICTY, p. 16 et seq. Professor de la Brosse goes on to set out
the fundamental principles of propaganda (p. 18 et seq) that contain a wealth of examples of
the hate speech and propaganda employed by Serbia both before and after the conflict.
41
Professor de la Brosse Report, ICTY, p. 28 et seq. The example provided is that when
war had broken out between the Serbs and Croats in Slavonia, the Belgrade regime’s entire
propaganda machine worked towards preparing public opinion for the need to protect the
Serbs living outside Serbia and for the war with Croatia.
42 Professor de la Brosse Report, ICTY, p. 31 et seq; pp. 43-48.
43
Professor de la Brosse Report, ICTY, pp. 51-52. The Report states that this was particularly
so after the HDZ came in to power in May 1990 after which the primary aim of television
coverage was to pit the Serbian public against its designated enemies and to prepare the way
for war.
44
Professor de la Brosse Report, ICTY, p. 53.
Volume 3.indd 52 12/14/2010 2:20:14 PM 53
(2) T h ea l l e g R e v i v lf C Ro aTi aN N aTi oNa l i s m
3.17 The Respondent only half-heartedly attempts to refute the role of ex-
treme nationalism in Serbia and the ‘Greater Serbia’ project in the perpetra-
tion of the Genocide that occurred against the Croats in Croatia. Instead it
attempts to argue that it was Croatian nationalism that was “directly respon-
sible” for the conflict in Croatia. While stating that political and historical
events (that occurred in the 1980s and 1990s) described in the Memorial are
“largelyirrelevant”tothepresentdispute,SerbiastatesthattheMemorialfails
to deal with facts that are “clearly relevant” such as the “genocide against the
Serbs in Croatia committed by the Independent State of Croatia during World
War II.” 46In fact the events of 1941-45 were referred to in the Memorial. 47
3.18 The Respondent devotes 10 pages to the Independent State of Croatia
(NDH) arguing that those events had a great influence on the events and ac-
tors in 1991-1995 and talks of the rehabilitation of the Ustasha movement in
the 1990s. However, the Respondent recognises that the NDH was a “puppet
state that served the political interests of fascist Italy and Nazi Germany.” 49
3.19 Professor de la Brosse’s Report stated that
“[the]incessantremindersoftheIndependentCroatiastateandatrocities
committed by the Ustasha were an alibi for the political objectives
of the [Serbian] regime and were at the root of the development and
strengthening of inter-ethnic hatred…The parallel between the past and
the present comparing Franjo Tuđman’s regime to that ofAnte Pavelić,
was made to raise anti-Croatian hatred to fever pitch”. 50
3.20 In any event, this discussion merely serves to strengthen Croatia’s
argument that the rise of extreme nationalism in Serbia in the late 1980s and
early 1990s was fuelled by historic revisionism and the demonization of the
Croats. There was a deliberate evocation of atrocities; a consciously fostered
paranoia fed at least as much by rumour and myth as by historical reality and
51
the use of the past as a weapon of conflict, and later, war. In any event once
again Serbia admits this, stating that “It is not contested that Serbian national-
52
ists misused the recollections of these past events….”
45 Counter-Memorial, para. 422.
46 Counter-Memorial, para. 391.
47 Memorial, para. 2.08.
48
Counter-Memorial, pp. 136-145. In addition to these pages, Chapter V of the Counter-
Memorial alone includes at least 15 further references to the Ustasha regime or the “genocide
committed by the NDH”.
49 Counter-Memorial, paras. 398-9. At para. 419 it again describes the controversy with
regard to the numbers killed at the Jasenovac camp, a matter mentioned in the Memorial,
before stating that this “genocide left an indelible mark on the consciences of the Serbs in
Croatia and elsewhere. The events leading to the conflict of 1991–1995 and the conflict itself
cannot be understood without taking this into account.”
50 Professor de la Brosse Report, ICTY, pp. 53-54, 62. The Report sets out several examples
in this regard.
51
52 Silber, p. 92.
Counter-Memorial, para. 420.
Volume 3.indd 53 12/14/2010 2:20:14 PM 54
3.21 The Counter-Memorial devotes considerable attention to the “reviv-
al” of Croatian nationalism with the creation of the Hrvatska Demokratska
Zajednica (‘HDZ’) 53 in 1989, arguing inter alia that its rhetoric was inflamma-
54
toryandledtoethnicallymotivatedincidentsagainstSerbs. TheRespondent
does admit that the rise of the HDZ took place at a time when “inter-ethnic
55
tensions were already running high in the SFRY” , thus admitting that some
actions of the HDZ were reactions to extreme Serb nationalism.
3.22 It is also pertinent to note that the HDZ was only established in 1989
and that its inaugural meeting in Zagreb, scheduled for 15 June 1989 was
banned under the influence of the ruling League of Communists Party. As
a result, the inaugural meeting was held almost underground, far from the
eyes of the public or the media. The HDZ was only registered as a political
57
party on 25 January 1990 and up until the election campaign in 1990 it had
virtually no access to Croatian state TV or the main Croatian dailies and was
constantly thwarted by the ruling League of Communists of Croatia.
3.23 The Respondent argues that the rise of the HDZ was the first sign of
the rehabilitation of the NDH and, with it, the Ustasha Movement. The Coun-
ter-Memorial however, misquotes President Tuđman’s regarding the NDH,
58
setting out his statement out of context. It is clear from President Tuđman’s
statement that he did not deny the criminal character of the NDH, on the
contrary, he underlined it. He had made clear his views on the NDH in his
book Bespuća povijesne zbiljnosti [The Horrors of War], and had expressed
53 The Croatian Democratic Union.
54 Counter-Memorial, paras. 430-432.
55 Counter-Memorial, para. 433.
56
Marinko Čulić, Željko Luburović, Bauk nacionalnih partija [The Bugbear of National
Parties], Danas, 27 June 1989, p. 16; Što jest i što hoće HDZ [What is the HDZ and what does
it want?], pp. 40-41; I. Perić, Godine koje će se pamtiti [The Years to Remember], p. 20.
57 Administrative Decision of the Secretariat of Justice and Public Administration of the
Socialist Republic of Croatia, document class UP/I-007-02/89-01/20, Ref. No. 514-04-02/4-
58-8, 25 January 1990.
The Counter-Memorial (para. 431) claims that Dr. Tuđman made clear his view that the
fascist Independent State of Croatia was “an expression of the historical aspirations of the
Croatian people”; what he actually said was that “the NDH was not only a mere ‘quisling’
creationanda‘fascistcrime’butalsoanexpressionofthehistoricalaspirationsoftheCroatian
people for its own independent state”: see Odluke I. općeg sabora HDZ, Programske zasade i
ciljevi HDZ, Statut HDZ, Izborni proglas, Izabrana tijela HDZ [Decisions of the First General
ConventionoftheHDZ,ProgrammaticTenetsandObjectivesoftheHDZ,ElectionManifesto,
Elected Bodies of the HDZ], Hrvatska demokratska zajednica, Zagreb, 1990, p. 10.
59 Franjo Tuđman Bespuća, Nakladni zavod Matice Hrvatske, Zagreb, 1989, p. 434, stating:
“It cannot be disputed that the Croatian nation, taken as a whole, welcomed the fall of
the Yugoslav hegemony as their extrication from ‘prison’, and that this was publicly
visible. Nor is it disputed that the declaration of an independent and free Croatian sta-
te at first meant the realization of a ‘centuries-old dream’, dreamt by national, but also
class revolutionaries. However, it is even less arguable – both from the standpoint of
the participants as well as from the objective investigations of the historical events
of that time – that the Croatian people not only did not identify themselves with
the Ustasha regime of the NDH, but that they also increasingly and more resolutely
distanced themselves from that regime, having become suddenly sobered by its pro-
Fascist, pogrom methods of rule and the handing of Dalmatia over to Ital▯y.”
Volume 3.indd 54 12/14/2010 2:20:14 PM 55
similar views earlier, when he headed the historical institute of the League of
60
Communists of Croatia.
3.24 Finally, Croatia made clear its views with regard to the NDH when it
adopted its new Constitution in December 1990. The Preamble to the Consti-
tution emphasised that the Croatian statehood during World War II found ex-
pression not in the NDH but only through the country’s Anti-Fascist Council
61
of National Liberation of Croatia.
(3) T h ea l l e g h aTe sp e eCh a g aNisT Th s eRb s
3.25 The Respondent admits that “hate speech was abundant in Serbian
media at the end of the 1980s and during the 1990s”, 62 yet accuses Croatia
of failing to mention the hate speech directed against Serbs. As a “particu-
larly notorious example” of hate speech against Serbs, the Respondent selects
63
a weekly tabloid - Slobodni tjednik [Free Weekly]. The Respondent only
provides a reference to a 1998 article in Serbian. No other examples are pro-
vided.
3.26 In this regard, it must be noted that Slobodni tjednik was a private
tabloid and the mainstream Croatian media distanced itself from it. 64 In early
1991, the Croatian Ministry of Information also distanced itself from the tab-
loid stating that its writing was an attempt at “introducing in the Croatian
press a base, tasteless and uncivilised” type of journalism and stated that it
would do everything in its power against it. This was in sharp contrast with
Serbian hate speech that was propagated and promoted by Serbian state media.
And in any event the writings of a private tabloid cannot be considered typical
60 Franjo Tuđman, Okupacija i revolucija: dvije rasprave [Occupation and Revolution: Two
61eatises], Institute for the History of the Labour Movement, Zagreb, 1963, p. 190.
The Preamble of the Constitution of the Republic of Croatia, 1990 states▯:
“The millennial national identity of the Croatian nation and the continuity of its state-
hood, confirmed by the course of its entire historical experience in various political
forms and by the perpetuation and growth of state-building ideas based on the histori-
cal right to full sovereignty of the Croatian nation, manifested itself: […]
in laying the foundations of state sovereignty during World War Two,
through decisions of the Anti-Fascist Council of the National Liberation
of Croatia (1943), to oppose the proclamation of the Independent State of
Croatia (1941), and subsequently in the Constitution of the People's Repub-
lic of Croatia (1947), and several subsequent constitutions of the Socialist
Republic of Croatia (1963-1990).”
62 Counter-Memorial, para. 434.
63
Counter-Memorial, para. 438.
64 The weekly Danas described Slobodni tjednik as “a weekly of ugly appearance and
unexplainable content that in a very brief time span managed to destroy those few sweet
remaining illusions about writing newspapers and dominant readers’ appetites in these areas”.
Its pens were said to be regularly proving themselves to be “ignorant of any journalistic styles
with no intention whatsoever to burden themselves with any kind of written or unwritten
journalistic canons”: Đurđica Klancir, Trg Republike kao Tennessee, Danas, 28 August 1990,
p. 75.
65 Krešo Špeletić, Žuto raspirivanje strasti [Fuelling Passion by means of the Yellow Press],
Danas, 23 April 1991, pp. 14-15.
Volume 3.indd 55 12/14/2010 2:20:14 PM 56
of the writing of the entire Croatian press at that time. Moreover, in its attempt
to show that Croatian nationalism and Serbian nationalism “went hand in hand”
Serbia is somewhat lax with dates and timelines of events. It fails to mention
that the inflammatory articles inSlobodni tjednikwere not written in the period
when the HDZ emerged, but later, when armed conflict had spread through
Croatia and genocide was being committed against Croats.
3.27 With regard to the allegations that hate speeches were made by the
highest Croatian officials, the Counter-Memorial refers to a comment alleged-
66
ly made by the former President, Mr Mesić. In addition to citing a document
that is not annexed (and in any event is inadequate as an evidential source,
and was published in 2008), the Respondent misquotes Mr Mesić. What Mr
Mesić actually said is clear from an exchange at the Milošević Trial at the
67
ICTY. The Counter-Memorial also refers to a speech made by a Member
of Parliament, Mr Jurić. Though the Applicant is not justifying its content,
the context and timing of the statement are relevant - the speech was made in
early August 1991, on the very days when the JNA and Serb rebels captured
thetownsofDalj,ErdutandAljmaš,andmassacredCroatianciviliansandpo-
licemen, and the remaining Croatian population had to flee. In any event, this
speech, once again, does not fall into the period when the HDZ came to power
in 1990, but dates from 1991 when the war in Croatia was ongoing. Further, it
66 Counter-Memorial, para. 439.
67 At his Trial at the ICTY, the exchange between Slobodan Milošević and Mesić was as fol-
lows:
“Milošević: You know there was no such plan, but who actually contributed to the anxiety
of the Serbs and to their concerns? I think that without doubt, you are one of those mostly
responsible for that. For example, in the summer of 1990, on the occasion of your visit
to Gospić, you said, I quote: “The Serbs from Croatia, while they are ploughing Croatian
land, pray to God that rain might fall in Serbia. Let the Serbs go to Serbia but take with
them only as much land as they brought when they arrived on the soles of their shoes.” Is
that what you said, Mr Mesić?
Mesić: I’m not interested in what you think of me and what I do. That is completely im-
material to me. The quotation is incorrect. The accused put together two things that I
said. What I said was, first, that Croats -- that Serbs in Croatian should not plough land in
Croatia while praying to God that it might rain in Serbia. This was my response to those
who wrote graffiti on walls in Croatia saying this was Serbia. It was not Serbia. It was
Croatia, and that’s what I wanted them to know. I wanted them to know that they could not
engage in implementing such a policy.The second thing I said was that when Serbs arrived
in Croatia, they were not carrying Serb land on their shoes to transform Croatian soil into
Serbian soil. I wasn’t saying anything about what they should take away with them.What I
said was that they had not brought Serbia with them on their shoes. Just as the Croats who
went to live inAustria, in Burgenland, did not take Croatia with them on the soles of their
shoes. They took it with them in their hearts. But they are loyal citizens of the Republic
of Austria, although they are aware of their ethnic origins, their Croatian origins. So my
message to the Serbs was that Croatia was their homeland, that they can love their former
country, but that they should be loyal citizens of the Republic of Croatia. In fact, my mes-
sage to them was that we wanted them in Croatia, not that they should le▯ave Croatia.”
Prosecutor v. Milošević, IT-02-54, testimony of Mr Stjepan Mesić, 2 October 2002, Transcript
pp. 10696-10697.
68 Counter-Memorial, para. 440.
Volume 3.indd 56 12/14/2010 2:20:14 PM 57
was not representative of the position of the Croatian Government.
3.28 The Respondent also argues that “hate speech manifested itself in the
69
rehabilitation of the Independent state of Croatia.” It repeats its allegations
regarding Mr Tuđman’s speech and refers to a statement by Mr Mesić’s that
Croats won twice in World War II. Two points need to be made with regard to
this statement. Firstly, this statement is undated. This appears deliberate, as
Serbia tries to create a false impression that the statement was made in 1990,
thereby fuelling its “hate speech” and the “rehabilitation of the NDH” argu-
ment. This is not so, as the statement was made in May/June 1992 in Sydney,
and it was unknown to the public until its publication in an article in Decem-
ber 2006. And secondly, Mr Mesić has in the meantime apologised for the
71
statement. A fact that the Respondent admits. These isolated examples do
not compare with the systematic and planned propaganda of Serbia.
3.29 Finally, and once more, the Respondent argues:
“TherehabilitationoftheIndependentStateofCroatiawasnotmerely
areinterpretationofhistory–italsolegitimizedtheUstashemovement
and the genocide perpetrated against the Serbs, Jews and Roma in
Croatia in 1941-1945. For the Serbs, this was a terrifying sign. While
onecannotdenythatthefearsheldbytheSerbsinCroatiawerefurther
spurred by the propaganda from the Serbian media controlled by Mr
Milošević, it is clear from the above that their fears and apprehensions
were not fuelled solely from Belgrade. The attitudes of the highest
Croatianofficials,theinflammablearticlesaboutSerbsintheCroatian
media and the revocation of their acquired rights instigated fear in a
community that was scarred by the still vivid memories of the World
War II genocide”. 72
3.30 As stated above, this is symptomatic of the historical revisionism that
was prevalent in Serbia in that period. As noted in the Memorial, historic
revisionism escalated from the 1980s onwards, reaching absurd levels and its
73
contribution to genocidal acts in Croatia was revealed only subsequently.
The demonization of the Croats as harbouring genocidal intentions against
the Serbs, coupled with the promotion of the idea of Serbs as victims, played
a significant role in preparing the ground for the genocide perpetrated against
the Croats that followed. Throughout Serbian media, the desire for revenge
focused in particular on the events of 1941, and was intentionally created by
referring to the crimes “for which no one has ever been held to account.”
Belgrade television frequently broadcast films of Ustasha leader Pavelić, in
69 Counter-Memorial, paras. 441-442.
70 Jadranka Jureško-Kero, Što je Mesić sve rekao u Sydneyu [What did Mesić say in Syd-
ney?], Večernji list, 10 December 2006.
71 Counter-Memorial, p. 152, footnote 320.
72
Counter-Memorial, para. 442.
73 Memorial,paras.2.56-58.Thissectionalsodescribeshowhatespeechwasinitially
tolerated but then became even desirable as a form of public communication.
Volume 3.indd 57 12/14/2010 2:20:14 PM 58
1941, woven with scenes of Tuđman and the newly elected HDZ. This was 74
confirmed by the Expert Report of Professor de la Brosse at the ICTY. 75
3.31 From the late 1980’s, writings on the Ustasha crimes against the Serbs
in the NDH changed, as did the terminology. The older term “mass Ustasha
crimes” was replaced by the word “genocide”. This was further developed
76
into the claim that all Croats are collectively guilty of Ustasha crimes. These
revisionist ideas were systematically spread by a significant part of the Ser-
77
bian political, religious, cultural and scientific elite. In 1989, Miloš Laban,
an MP of the Serbian Assembly asked who the legal successor of the Ustasha
state was, and to whom could the Serb victims of the Ustasha genocide turn
for indemnification? 78In late 1989 the Metropolitan Bishop of Zagreb Jovan
Pavlović demanded that Croatia indemnify the Serbian Orthodox Church for
crimes committed at the time of the NDH. 79 Apart from vividly demonstrat-
ing the kind of propaganda from Belgrade to which the Serbs in Croatia were
exposed, this also reveals the extent to which the Serb community in Croatia
was free to express themselves. As stated in the Memorial, this theory was
articulated by the renowned Serbian historian, Vasilije Krestić and gained 80
81
considerable support with a number of papers being written on the subject.
It was also claimed that the Communists had banned research into the crimes
committed against the Serbs for decades, because they did not want to jeopar-
dise their platform of ‘brotherhood and unity’. 82
3.32 The Respondent’s claims regarding the alleged hate speech emanat-
ing from Croatia is also clearly repudiated by the fact that in the 1990 elec-
74 Silber, pp. 92, 133.
75
76 See also Professor de la Brosse Report, ICTY, pp. 53-54, 62.
LJ. Boban, Kontroverze iz povijesti Jugoslavije, Book 2, p. 324.
77 Radmila Radić, Crkva i ‘srpsko pitanje [The Church and the ‘Serb Issue’], Srpska
strana rata [The Serbian side of the War], Republika, Belgrade, 1996, pp. 269-288; Olivera
Milosavljević, Zloupotreba autoriteta nauke [The Abuse of the Scientific Authority], Srpska
78rana rata, Republika, Belgrade, 1996, pp. 305-322.
Jelena Lovrić, Na redu je Hrvatska [It’s Croatia’s Turn], Danas, 19 September 1989, pp.
7-9.
79 Marinko Čulić, Zaruke zvijezde i krsta [Betrothal of the Star and the Cross], Danas, 26
June 1990, pp. 28-29.
80
Memorial, paras. 2.51-53. Krestić claimed that genocidal ideas and genocide against Serbs
were deep-rooted in the awareness of Croatian generations. See also Vasilije Đ. KRESTIĆ,
Srpsko-hrvatski odnosi i jugoslovenska ideja u drugoj polovini XIX veka [The Serbian-
Croatian Relations and the Yugoslav Idea in the Second Half of the 19th Century], Nova
knjiga, Belgrade, 1988, pp. 367-368
81
Josip Jurčević, Nastanak jasenovačkog mita [How the Jasenovac Myth Came into Being],
Hrvatski studiji, Zagreb, 1998, p. 147.
82 See Milan Bulajić, Ustaški zločin genocida [The Ustasha Crime of Genocide], Belgrade,
1989,III,p.15.ComparealsoSvetozarStanojević,PropastkomunizmairazbijanjeJugoslavije
[The Collapse of Communism and the Destruction of Yugoslavia], “Filip Višnjić”; Institut
za filozofiju i društvenu teoriju, Belgrade, 1995, pp. 61-63; M. Hadžić, Sudbina partijske
vojske [The Destiny of the Party’s Army], pp. 136-137. Endru Baruh Vahtel, Stvaranje nacije,
razaranje nacije[Creation of a Nation, Destruction of a Nation], Stubovi kulture, Belgrade,
2001, pp. 253-254.
Volume 3.indd 58 12/14/2010 2:20:15 PM 59
tions a majority of the Serbs in Croatia voted for a party that had no exclusive
nationalist orientation, the reformed communists, headed by a Croat and not
for the Serb Democratic Party (‘SDS’). 83
3.33 In any event, historical revisionism was created and inflamed by the
Serbian intellectual elite in the late 1980s, then guided by the SDS amongst
84
the Serbs in Croatia.
(4) iN puRs uT i o g Re aTeR seRb i : seRb i ’s ef f R Ts To ex p Nd iTs b oRd eRs
3.34 In the Memorial, Croatia stated that as the disputes between the Re-
publics intensified, significant differences emerged between them as to the
85
inviolability (or otherwise) of the territorial borders of the Republics. These
borders had remained unchanged since 1945, save for minor adjustments,
and their maintenance was expressly provided for by the 1974 Constitution. 86
Serbia started to question the internal borders of the Republics, and togeth-
er with its bloc (Montenegro, Kosovo and Vojvodina) argued that it was for
the peoples to decide on borders rather than the Republics, because the Serb
people were spread over the territory of a number of Republics, particularly
87
Croatia and Bosnia. Serbia claimed that the people, and not the republics,
were sovereign, drawing from this the conclusion that the borders were to be
changed by the people (and by this it meant solely the Serb people). Thus, it is
submitted that even before the HDZ came to power in Croatia, Serbia’s leader-
88
ship had started preparing its criminal plan of creating a Greater Serbia. It
only recognized the international borders of SFRY, arguing that the territorial
borders of the individual Republics, were merely “administrative” in charac-
ter and could be modified. Later, the leadership of the ‘Serb Autonomous
Region’ (‘SAO’) Krajina was another proponent of this view when through
its unilateral actions, it declared that it had joined the Republic of Serbia and
83
84 Silber, p. 95.
Silber, p. 98.
85 Memorial, para. 2.72 et seq.
86 Article 5 of the SFRY Constitution provided that the territory of the SFRY was a single
unified whole and consisted of the territories of the Socialist Republics. It went on to provide
that “the territory of a Republic may not be altered without the consent of that Republic” and
that the territory of an Autonomous Province could not be altered without the consent of that
Autonomous Province. Article 5 also provided that “boundaries between the Republics may
only be altered on the basis of mutual agreement, and if the boundary of an Autonomous
Province is involved, also on the basis of the latter’s agreement.”
87
88 Memorial, paras. 2.72-74.
This is borne out by Jović‘s diary, more precisely by the account for 26 March 1990 which
makes it clear that the Serbian leadership was conscious that they would not be able to achieve
the borders they wanted without a war. See B. Jović, Poslednji dani SFRJ [Last Days of the
SFRY], p. 131.
89
See “Ethnic Composition of the Population of Serbia and Montenegro and the Serbs in
SFR of Yugoslavia”, University of Belgrade, Belgrade 1993 at p. 17, describing the Serbs as
“internees of the administrative interior boundaries between the Yugoslav federal units” and
criticisingtheEuropeanCommunity’saspirationstorecognize“theadministrativeboundaries
between Yugoslav federal states as the untouchable state borders. “
Volume 3.indd 59 12/14/2010 2:20:15 PM 60
become a part of its state territory. The view of the other Republics – particu-
larly Slovenia and Croatia – was that they were sovereign within their existing
borders, which was based on the 1974 Constitution and on international law,
was unacceptable to Serbia. 90
3.35 The Respondent argues that the debate with regard to internal borders
is irrelevant, and in any event it was only in January 1992 that the Badinter
Commission held that the former internal borders of the Republics were fron-
tiers protected by international law. 91It fails to mention that almost 6 months
earlier, the European Community had made it clear that
“it will never accept a change of borders that was not brought about in
92
a peaceful way or through agreement.”
The same principles were confirmed as one of the conditions for recognition
of new states emerging out of the dissolution of SFRY by the EC in December
1991. 93
3.36 The Respondent denies that its attempts at altering internal borders
was motivated by the idea that different ethnicities could not live together
and that certain areas within the republics were to be cleansed of non-Serb
populations. This is unpersuasive. Moreover it argues that this is unsubstan-
tiated. By conflating two separate arguments of Croatia, Serbia first recasts
the arguments made in the Memorial and then seeks to challenge them. The
facts and situation on the ground show that this is exactly what happened,
particularly in the later half of 1991. Pro-Milošević politicians and intellectu-
als in Serbia (and in fact Milošević himself) began to propose the revision of
the borders of the Republics on grounds of ethnicity. In early June 1991, on
the eve of the outbreak of the fiercest fighting in Croatia, Vojislav Šešelj was
asked under what conditions would he be ready to negotiate with Croatia, to
which he replied:
“TheconditionisthattheyacceptthelineKarlobag-Ogulin-Karlovac-
ViroviticaasCroatia’sborder.Onlythencanweagreeontheexchange
of the population. All the Serbs living in Zagreb, Rijeka, Istria and
Slovenia to move to Serbia and Croats living in Serbia to move to
90 See Miodrag Zečević, Bogdan Lekić, Državne granice i unutrašnja teritorijalna
podela Jugoslavije [International Borders and Internal Territorial Division of Yugoslavia]
Građevinska knjiga Belgrade, 1991. The book’s Introduction refers to an attempt by some
Republics to declare their administrative-territorial borders to be international borders.
91 Counter-Memorial, para. 443.
92 DeclarationonYugoslaviaissuedbytheCouncilofMinistersoftheEuropeanCommunities
after the extraordinary meeting in Brussels on 27 August 1991.
93 EC Declaration Concerning Conditions for Recognition of New States of 16 December
1991. (with the annexed Guidelines on the recognition of new States in Eastern Europe and in
the Soviet Union S/23293, Annex II).
94 Counter-Memorial, para. 444.
95 Memorial, paras. 2.72 onwards; see also Professor de la Brosse Report, ICTY, p. 16 et seq.
Volume 3.indd 60 12/14/2010 2:20:15 PM 61
Croatia; thus, we would resolve the issue once and for all. “ 96
3.37 The Respondent states that Vojislav Šešelj, the leader of the Serbian
Radical Party, was not a pro-Milošević politician at that time, but a member
of the opposition, and that his party was refused registration in 1990. It also
states that there is no evidence that Šešelj’s statement or his ideas regarding
the borders of “Greater Serbia”, were supported by President Milošević. 97 In
arguing as such, the Respondent looks at form rather than substance. Šešelj
and Milošević may well have been opposed politically to start with, but they
98
were both unanimous with respect to the idea of one Serbia for all Serbs.
Even though the Serbian authorities refused to register Šešelj’s party in 1990,
it was registered in February 1991, and soon thereafter Šešelj became an MP
in the National Assembly of Serbia. The Serbian state media gave him exte-n
sive coverage, enabling him to popularise his war-mongering anti-Croatian sl-o
gans. 99 InanyeventtheRespondentdoesadmitthatŠešeljbecomePresident
100
Milošević’s ally later, by November 1991. Milošević’sgovernmentskilfully
used Šešelj for war-mongering and for publicly expressing what Milošević and
101
the leadership of the JNA did covertly. A Serbian sociologist later wrote that
Miloševićandhis“statistelite”usedandmanipulatedŠešeljin1991,givinghim
102
access to the Serbian mass media to reach the common man, which he did.
Quite often Šešelj was the “lightning-conductor” for Milošević’s strategy-. Simi
larly, while in the spring of 1991, the JNA may have condemned Šešelj, they
used him later that year for boosting morale on the Croatian battlefield. It is 103
noteworthy that in addition to be indicted for individual criminal responsibility,
96 Joco Eremić, Interview with Vojislav Šešelj, Neka se Hrvati ne igraju glavom [Don’t let
Croats Play with their Heads], Srpske novine, Novine Krajine, Knin, No. 1, 8 June 1991, pp.
6-7. See also Memorial, vol. 3, Plate 2.6. This is also set out in his Indictment at the ICTY.
97
98 Counter-Memorial, paras. 445-446.
Šešelj did not really oppose Milošević, but the other opposition parties in Serbia. Erik D.
Gordi, Kultura vlasti u Srbiji, Nacionalizam i razaranje alternative [The Culture of Power in
Serbia: Nationalism and the Destruction of Alternatives], Belgrade, 2001, pp. 57-58.
99 In almost daily rallies and election campaigns, he called for Serb unity and war against
Serbia’s“historicenemies”,namelytheethnicCroat,MuslimandAlbanianpopulationswithin
the territories of the former Yugoslavia. See Third Amended Indictment, IT-03-67, para. 4.
100 Counter-Memorial, para. 445. [See also Recording of V. Šešelj’s Speech in Benkovac on
23 November 1991 with the Croatian Memorial-Documentation Centre of the Homeland War
(HMDCDR); Inventory No. 436.
101 For a detailed account Šešelj’s activities see: Proces Vojislavu Šešelju: Raskrinkavanje
projekta Velika Srbija [A Trial against Vojislav Šešelj: Exposing the Project of Greater
Serbia], Biblioteka “Svedočanstva”, No. 34, edited and prepared by Sonja Biserko, Helsinki
Committee on Human Rights in Serbia, Belgrade 2009.
102
Slobodan Antonić, Zarobljena zemlja, Srbija za vlade Slobodana Miloševića [Captured
Country, Serbia under Slobodan Milošević’s Rule], Belgrade 2002, p. 379 states:
“Statist elite that was engrossed by important state-building affairs and tasks after
1988 somehow did not manage to reach the heart of ‘the little man’. In 1991, the idea
occured to someone from that elite to give Vojislav Šešelj - a gifted ‘leader from the
crowd’ - more space in the media. This is how the national-populist elite came into
being. Šešelj managed to fascinate the masses.”
103 D. Gajić-Glišić, Srpska vojska – iz kabineta ministra vojnog [Serbian Army – from the
Personal Office of the Minister of the Military], pp. 16/17.
Volume 3.indd 61 12/14/2010 2:20:15 PM 62
Šešelj has also been indicted for his role in a joint criminal enterprise (JCE), the
purpose of which was the permanent forcible removal of a majority of the Croat
and other non-Serb populations from approximately one-third of the territory
of the Republic of Croatia, in order to make these areas part of a new Serb-
dominated state. 104The other members of the JCE included Milošević, General
Veljko Kadijević, Milan Martić, Milan Babić, and other political figures from
the SFRY, the Republic of Serbia and the Croatian Serb leadership. So Serbia’s
attempt to distance itself from Šešelj is futile.
3.38 In any event Milošević himself articulated the goal of a single state
for all Serbs. On 15 January 1991, he stated that “it would be unacceptable
for Serbs to live in separate States” and added that the Serbian nation would,
indeed, live in one State, in one single State, 105thus echoing the message of
the 1986 Memorandum. He explained his vision of the future Yugoslavia:
the borders of the constituent Republics of the former Yugoslavia would not
be defining for this future Yugoslavia; what would be defining would be bor-
ders which would ensure that the Serbian nation, not to be confused with the
106
Serbian State, would be brought together in one single State. On 16 March
1991, Milošević clearly expressed this goal at meeting with heads of munici-
palities in Serbia. He stated:
“We have to ensure that we have unity in Serbia if we as a Republic that
is the largest and most populous want to dictate the further course of
events. These are the issues of borders, therefore essential state issues.
And borders, as you know, are always dictated by the strong, they are
never dictated by the weak. (...) We simply consider it a legitimate
right and interest of the Serb people to live in one state. And that is the
beginning and the end. (…) Besides, what do they need those Serbs
for, who are such a nuisance to them. (…) They are a nuisance to them
but they need the territory. The Serbs, however, are no subtenants on
this territory. Since the time of the Vojna Krajina [Military Frontier],
throughout history, they have been living there as their own men in
their own country. And generally speaking, they have no intention of
leaving the territory they live in. They formed and declared that they do
not recognise the Croatian Republic. They established theAutonomous
Region of Krajina. (…) And if we have to fight, then, by God, we will
fight.And I hope they will not be so crazy as to fight against us. Because
if we do not know how to work and do business well, at least we know
104 According to the Indictment, the JCE came into existence before l August 1991 and
continued at least until December 1995 and Šešelj participated in the JCE until September
1993. See Third Amended Indictment, IT-03-67, para.8.
105 Tanjug , 1939 gmt, 15 January 1991, source: BBC Summary of World Broadcasts. See
also the comments of the Vice-President of Milošević’s Serbian Socialist Party Michaelo
Marković, who is reported to have talked about the new State and said there would be at least
three federal units: Serbia, Montenegro and a united Bosnia and Knin region. Tanjug, 1746
106, 9 October 1991, see Noel Malcolm, Bosnia: A Short History, 1996, pp. 228-229.
Tanjug, 1939 gmt, 15 January 1991, source: BBC Summary of World Broadcasts.
Volume 3.indd 62 12/14/2010 2:20:15 PM 63
how to fight well.” 107
While ostensibly fighting for “Yugoslavia”, Milošević was clearly advocating
for all Serbs to live in one state - a state under Serb domination – and in real-
ity – “Greater Serbia”.
3.39 To distance itself from Šešelj’s statement for the revision of the Re-
publics’ borders on the grounds of ethnicity, the Respondent states that when
on 1 April 1991 the ‘SAO Krajina’ adopted a decision to join the Republic
of Serbia, the following day, on 2 April 1991, the National Assembly of Ser-
bia adopted a Declaration on the Peaceful Settlement of the Yugoslav Crisis,
“which basically rejected this idea.” 108 The Declaration clearly did no such
thing. Though the Respondent could have annexed the National Assembly’s
109
declaration it has not, choosing to rely on an oblique and vague reference.
3.40 The Respondent states that President Tuđman was one of the most en-
107 “Excerpts from shorthand notes from a meeting of the President of the Republic, Slobodan
Milošević, and the deputy chairman of the National Assembly of the Republic of Serbia with
presidents of municipal councils of the Republic of Serbia, held on 16 March 1991,” prepared
by M. M., Vreme(Belgrade), no. 25, 15 April 1991, pp. 62-66. See also Professor de la Brosse
Report, ICTY, pp. 28-29.
108 Counter-Memorial, para. 446.
109 See Declaration on the Peaceful Settlement of the Yugoslav Crisis against Civil War
and Violence, National Assembly of the Republic of Serbia, 03 No. 43, 2 April 1991, Annex
49. Claiming to advocate for a peaceful, democratic and speedy resolution of the Yugoslav
crisis, the Declaration was an ultimatum of sorts and clearly sought to interfere in the internal
affairs of Croatia. It called on the SFRY Presidency and the General Staff of the Supreme
Command of the JNA to prevent inter-ethnic armed conflict or civil war in Yugoslavia and
not to permit any one side to resort to violence in settling inter-ethnic and inter-state disputes
(para. 3). Instead of calling into question the illegality of the establishment of the Serb regions
in Croatia, the Declaration accused Croatia “of using violence...against the Serb people in
the municipality of Titova Korenica.” The Croatian leadership was warned that “the use of
force against the interests of the Serb people in the Republic of Croatia makes it exclusively
responsible...forfuturedevelopments” (para.4).Para.5justifiedtheunlawfuldecisionsof“the
relevant bodies of the SAO Krajina, Slavonia, Baranja and Western Sirmium and the reactions
of the Serb people as a whole” to decide on Yugoslavia’s future through a referendum, even
though this was in contravention of Croatian law. Thus, far from rejecting SAO Krajina’s
decision to join the Republic of Serbia, the Declaration accused Croatia of not permitting
the [Serb] referendum, and it stated that the Serbian Assembly and all government bodies
would provide all necessary assistance and support to the Serbs in Croatia (para. 6). Croatia
was requested to withdraw its police from Plitvice (it was this intervention that prompted the
rebel Serbs to declare their unification with Serbia). In the same vein, support was given to
the JNA’s actions, which was requested to deploy in the SAO Krajina, Slavonia, Baranja and
Western Sirmium and “in all the places in which the Serb population resides until a political
agreement on the solution to the existing situation be reached” (para. 9). This request was in
fact a request for the occupation of a part of the Croatian territory which was precisely what
General Kadijević promised the Serbian political leadership a few days later.
In the 5 April 1991 entry in his memoirs, B. Jović testifies that he and Milošević talked with
Kadijević and Adžić and that the following question came up:
“Will the army allow the Croatian police to occupy Knin and other Serb towns which
are now under Serb control? The response is very clear: no … The army will not at-
tack anyone but it will defend both itself and the Serb people in Krajina.” B. Jović,
Poslednji dani SFRJ [Last Days of the SFRY], p. 317.
Volume 3.indd 63 12/14/2010 2:20:15 PM 64
thusiastic proponents of a change of borders along ethnic lines. Notwithstand-
ing that claim, the evidence shows that through the several months of negotia-
tions between the leaders of the Yugoslav republics on the future of the SFRY,
President Tuđman maintained a position with regard to the inviolability of the
Republican borders. It is to be noted that Croatia and Slovenia, together with
Bosnia and Macedonia were all strong advocates for the preservation of the
republican borders, which were to be respected as international borders of the
new states.
(5) Th e hdZ g o v R Nm eN TaNd iTsa l l e g e dyi sC Ri i aToRy po lCi i e s
3.41 The HDZ won Croatia’s first multi-party elections in the spring of
1990 and formed the government. Dr. Tuđman became independent Croatia’s
first President.
3.42 The Respondent states that in January 1990, at its 14 Congress, the
League of Communists of Yugoslavia (LCY) was torn along ethnic lines and
effectively disappeared as a cohesive force of the federation, as a result of
which the very survival of the SFRY was at stake. Serbia’s claim that the dis-
solution of the LCY heightened the sense of “insecurity” felt by the Croatian
Serbs is in keeping with the Greater Serbian world view according to which
110
it was only the Serbs who had reasons to fear an uncertain future. Unfortu-
nately, the Respondent fails to mention that it was Milošević’s attempt to take
control of the LCY that led to its break-up and later to the to the break-up of
111
the SFRY.
3.43 In any event, the HDZ did not adopt discriminatory government poli-
cies aimed at Serbs, nor were Serbs fired en masse from the state administra-
tion and public services and nor were the rights held by the Serb community
taken away or reduced.
(a) The Allegations of Mass Dismissals are Unsubstantiated
3.44 The Counter-Memorial alleges that once the HDZ came to power, its
“threatening rhetoric was turned into government actions with the introduc-
tion of discriminatory policies clearly aimed at Serbs”. This, the Respondent
alleges, included mass dismissals from the state administration and public
services and a reduction or taking away of the rights of the Serb community;
once again, accompanied by acts aimed at rehabilitation of the NDH. These
events are said to have “cemented the insecurity” of the Serbs in Croatia. 112
3.45 Firstly, it is noteworthy that Serbia admits that the coming into power
of the HDZ and the spectre of NDH were “manipulated by the propaganda of
113
the state-controlled media in Serbia”.
110Counter-Memorial, para. 451.
111B. Jović, Poslednji dani SFRJ [The Last Days of the SFRY], pp. 88, 92-93.
112Counter-Memorial, para. 452.
113Ibid.
Volume 3.indd 64 12/14/2010 2:20:15 PM 65
3.46 Secondly, in support of its expansive claims of a campaign of massive
dismissals of Serbs from government employment, the Respondent cites one
book. 114This book however provides no support for this allegation. It sets out
the opinion of the author, but does not quote any specific source or any con-
crete data. It does not provide even a single specific piece of information as
to who, when and what numbers were allegedly dismissed. Even with regard
to the alleged dismissals of Serbs from the local police force, and the destruc-
tion of Serb property Serbia cites one book - J. Lampe’s book Yugoslavia as
History: Twice There was a Country - This book relies on unsubstantiated
115
and uncorroborated secondary data. Thirdly, the Respondent provides no
authority in support of its claim that there existed discriminatory government
policies aimed at Serbs. It cannot, as there were none.
3.47 In conclusion, the Respondent has not offered any evidence in sup-
port of these claims, which cannot, in any event, justify the genocidal acts for
which Serbia is responsible.
(b) The Allegation that Constitutional Changes were Discriminatory
is a Misrepresentation of the Facts
3.48 The series of constitutional changes adopted by the HDZ did not re-
duce the rights and affect the position of Serbs in Croatia, as alleged. Serbia
refers to two specific changes:
1. the Constitutional amendments in July 1990 that resulted in the
introduction of a new flag and coat of arms by Croatia, that were
allegedly similar to the flag and coat of arms of the NDH; and
2. the adoption of a new Constitution in December 1990, which
allegedly “further reduced the rights of the Serb community in
Croatia.” 117
3.49 The July 1990 Amendment removed the term “Socialist” and visual
socialist signs from the flag and the coat of arms. The communist red five
point star was replaced by the šahovnica (a white and red checker-board),
which Serbia admits “was historically one of Croatia’s symbols.” 118This was
clearly distinguishable from the flag of the NDH, the symbol of which was
the letter “U” with the stylised Croatian three-strand pattern. The Croatian
flag underwent further changes on 21 December 1990 when a “crown” made
up of the historical coats of arms of the Croatian regions was added to it. The
Counter-Memorial fails to present a graphic of the historical coat of arms of
Croatia because it is clear that the coat of arms of the Socialist Republic of
114
Counter-Memorial, para. 453, citing O. Žunec, Goli život [Naked Life], Zagreb, 2007,
p.572. Žunec’s statement is not corroborated by any relevant sources but rather individual
examples.
115Counter-Memorial, para. 454, citing J. Lampe, Yugoslavia as History: Twice There was a
Country, Cambridge University Press, 2000 (2 ed.), p. 360.
116Counter-Memorial, para. 456.
117Counter-Memorial, paras. 456-458.
118Counter-Memorial, para. 457.
Volume 3.indd 65 12/14/2010 2:20:15 PM 66
Croatia also contained the historical Croatian coat of arms with the checker-
board. No further changes were introduced as is clear from the graphics set
out below.
The Coat ofArms of the Socialist The Coat ofArms of the Republic
Republic of Croatia of Croatia from December 1990
Therefore the Respondent’s allegations and graphics are obviously false.
3.50 The Respondent’s second allegation refers to the adoption of Croatia’s
new Constitution, which it says “further” reduced the rights of the Serb com-
munity. 119As the Counter-Memorial does not specify how the change in the
flag and coat of arms resulted in a reduction of the rights of the Serb commu-
nity it is difficult to see how the new Constitution resulted in a further reduc-
tion of their rights. While the text of the Constitution was amended, there was
no corresponding loss to the rights of the Serb people. The 1990 Constitution
defines Croatia as follows:
“the national state of the Croatian people and the state of members
of other peoples and minorities, who are its citizens: Serbs, Muslims,
Slovenes, Czechs, Slovaks, Italians, Jews and others, which are
guaranteed equality with the citizens of Croatian nationality and the
implementation of the national rights in accordance with the democratic
norms of the [United Nations] and the countries of the free world.”
3.51 The new Constitution “guaranteed equality” to all Croatian citizens.
Therefore Serbia’s claim that with the adoption of the new Constitution the
Serbs in Croatia lost their position as constituent elements of the state and
their collective rights is simply wrong and unfounded in law. Admittedly, the
new formulation states that Croatia is the national state of the Croatian people,
but it is also the state of other peoples and minorities who are its citizens. The
119 Counter-Memorial, paras. 458-462
Volume 3.indd 66 12/14/2010 2:20:16 PM 67
1990 Constitution does not abolish any substantial rights of the Serbian com-
munity. The Counter-Memorial fails to specify the nature of the special rights
enjoyed by the Serb community which were taken away by the adoption of
the new Constitution. Although the Serbs were described as a “constituent
people” in the earlier Constitution, this did not give them any special national
rights, like any right to territorial and other autonomy.
3.52 Similarly, there was no particular guarantee of the explicit use of Ser-
bian language as a separate and distinct language. The Respondent admits
that the 1974 Constitution provided that the language 120for public use in Croa-
tia was the
“Croatian literary language - the standard form of the people’s
language of the Croats and Serbs in Croatia, which is called Croatian
121
or Serbian.”
122
3.53 The Respondent makes other allegations of discrimination and threats.
It alleges that Serb property was damaged and the pressure against Serbs was
suchthatthousandschangedtheirnamestoconcealtheirSerbianidentitytoavoid
discrimination and persecution by Croatia. It alleges that this discrimination and
persecution increased at the beginning of the armed conflict in 1991 and even-
tually resulted in an alleged genocide” in 1995, during the Operation Storm. 123
The Applicant vehemently denies that it committed genocide against the Serbs in
Croatia in 1995. A detailed reply to the Respondent’s Counter Claims is set out in
Chapters10to12.Theotherallegationsregardingthedestructionofpropertyand
the changing of names are based on three sources, none of which is probative or
convincing. In any event the allegations are denied.
120 The language (singular) - not “languages”, as suggested in the Counter-Memorial - was
the Croatian language. The footnote (note 463) contains the correct text, Croatian language
in singular.
121
Counter-Memorial, para. 463. Throughout the existence of the SFRY there was a trend to
create a single language out of the Croatian and Serbian languages, which resulted in naming
thetwolanguagesasone.Theonlydifferencewaswhichlanguagewasnamedfirst.Inpractice,
in Croatia the “Croatian literary language” was called “Croatian or Serbian language” (the
Croatian language meant/implied the use of the Latin script). In Serbia the same language
was called “Serbian and Croatian language” (this implied the Serbian language and both the
122in and Cyrillic script).
Counter-Memorial, paras. 465-466.
123 Ibid.
124 The Counter-Memorial cites:
O. Žunec, Goli život [Naked Life], Zagreb, 2007, p. 572 et seq. – This is the same
source cited in support the allegation of ethnically motivated dismissals. However
Žunec cites no concrete data for this allegation. In fact Serbia admits as much in the
footnote when it states that though that 25,786 “persons” changed their names in
Croatia during the period 1990-1992, it still remains to be determined how many per-
sons were Serbs and how many Serbs changed their names to conceal their ▯identity.
Two other books are also referred to - S. Woodward, Balkan Tragedy (1995), p. 107
and John R. Lampe, Yugoslavia as History: Twice There was a Country (2 ed.,nd
2000), p. 354 - in support of these allegations. These books are based on secondary
sources and in any event, the page cited from Lampe’s book contains nothing that
Volume 3.indd 67 12/14/2010 2:20:16 PM 68
(c) The Allegation of Illegal Arming is Misleading
3.54 The Counter-Memorial also contains a brief section entitled Croatia’s
Preparation for War where it is stated that the HDZ government in Croatia
125
started to prepare for armed conflict in 1990, after it took office. This is yet
another misleading statement.
3.55 The Respondent fails to mention that the enlargement and arming of
the Croatian police personnel was necessitated by the disarming of the Croa-
tian Territorial Defence (TO) by the JNA. This was in May 1990. Additional
personnel were also required to meet the shortfall in numbers created by the
rebellion of the Serb officers in the police force in the areas of Croatia where
the Serb community had proclaimed their autonomy in December 1990. The
disarmament of the TO that preceded the Croatian defence activities is com-
pletely ignored in the Counter-Memorial. 126 As stated by General Svetozar
Oro, a Serb general in the JNA:
“as soon as the JNA took arms of the Territorial Defence of Slovenia
and Croatia but not of other republics (disarmed them), it gave more
than a clear message to those disarmed what the future held in store
127
for them”.
3.56 Croatia received that “clear message” and therefore proceeded to en-
large and arm its police forces. The fact that this was a defensive action is
clear from the dates. The ‘Balkan Battlegrounds’ Report cited in support by
Serbia states that police personnel was expanded by January 1991, as was the
special police,whereas the territorial defence was disarmed in May 1990. 128
In the face of the illegal disarming of the Croatian TO by the JNA, and the
refusal of the federal authorities to equip the Croatian police force, there was
nothing illegal about Croatia arming its police forces. It was a necessity, as the
Croatian government had no armed force capable of acting independently of
the JNA, except its police. 129
SECTION II: INSTRUMENTALIZATION OFTHE SERBS
AND THE SERB REBELLION IN CROATIA
3.57 The Memorial explains in details how the Serb community in Croatia
corroborates Serbia’s allegation.
125Counter-Memorial, paras. 467-472.
126
See Chapter 4, infra.
127 See the forward by General Svetozar Oro in Vaso Predojević’s book, U procjepu [In
the Cleft Stick], Dan Graf, Belgrade, 1997, p. 6. (Predojević was a JNA colonel from the 5
Military District).
128‘Balkan Battlegrounds: A Military History of the Yugoslav Conflict, 1990-1995’, Central
Intelligence Agency, Office of Russian and European Analysis, Washington, DC 20505, May
2002. Counter-Memorial, paras. 468-471 refers to the Report; see further, Chapter 4 of this
Reply, infra.
129 See Memorial, para. 2.97. See also Chapter 4, infra.
Volume 3.indd 68 12/14/2010 2:20:16 PM 69
reacted to the political changes and political climate in the SFRY from the
130
mid 1980s. Serbs living in the parts of Croatia where they were in a signifi-
cant part of the populous were more influenced by the media onslaught from
Belgrade, which raised the spectre of a repetition of the events of 1941. Some
Serbcommunitiesbeganto“organizethemselves”oftenwiththeassistanceof
public authorities in the Republic of Serbia and the JNA. 131 In 1989 and 1990
some Serb communities also began to arm themselves, and draw up “emer-
gency plans”. 132The Counter-Memorial refers to this as a “manifestation of
133
national sentiments” by the Serbs, whereas for Serbia, any manifestations
of national sentiments by the Croats were deemed as a “rehabilitation of the
NDH” or a threat of genocide or creating insecurity in the Serb community.
This Serbian national sentiment would soon prove to be a lethal weapon in the
implementation of an aggressive and genocidal plan.
3.58 It is submitted that the entire section entitled “The Organising of
Serbs in Croatia” abounds in inaccurate information. 134The manner in which
the entire section was written contradicts Serbia’s claim that it would assist
135
the Court in gaining a more balanced picture of the events. As in other parts
of the Counter-Memorial, the Respondent deliberately glosses over the truth
by leaving out a whole string of important events without which the true state
of affairs cannot be understood.
3.59 The Serb Democratic Party (‘SDS’) was formed by Serbs in Croatia
on 17 February 1990, almost simultaneously with the HDZ. Initially, the SDS
proposed a new administrative partition which later developed into a demand
136
for complete autonomy or a later separation. However, even before this, the
idea of forming a so-called “Serb Autonomous Region” (‘SAO’) in Croatia
137
was accepted at a Serb meeting in Vojnić, on 4 February 1990. These devel-
opments occurred before the elections in April 1990 that brought the HDZ to
power. Therefore the allegation that the SDS started to seek autonomy for the
Serbs in Croatia after the allegedly discriminatory constitutional amendments
of July 1990 is plainly incorrect. 138By the time of the election campaign in the
spring of 1990, radical Serb nationalism had manifested itself several times in
Croatia. The Respondent’s admission that the first manifestations of national
139
sentiments of the Serbs in Croatia took place in 1989 is an understatement
130 Memorial, pp. 53-67.
131
See Memorial, Chapter 3, para. 3.27 et seq.
132 Memorial, para. 2.81 and the citations therein.
133 Counter-Memorial, para. 475. The Counter-Memorial fails to specify how the Serb
“manifestation of national sentiments” at the Knin celebration of the battle on the Kosovo
field, provoked anxiety and fear among Croats.
134
135 Counter-Memorial, paras. 473-498.
Counter-Memorial, para. 473.
136 Memorial, para. 2.82.
137 Memorial, para. 2.83.
138 Counter-Memorial, para. 478.
139 Counter-Memorial, para. 475.
Volume 3.indd 69 12/14/2010 2:20:16 PM 70
for the outburst of Serb nationalism which threatened the security situation in
Croatia. 140
3.60 It is also unclear how such autonomy for the Serbs in Croatia was to
be exercised. The Counter-Memorial provides no details. A clue to its mean-
ing and the SDS agenda could be found in a statement made by the first Presi-
dent of the SDS, Jovan Rašković, who stated:
“for every step which Tuđman takes distancing Croatia from [SFRY]
we shall make a step towards distancing ourselves from Croatia”. 141
3.61 After the elections, President Tuđman and Mr Rašković, the leader of
142
the SDS, held discussions in July 1990. What the Counter-Memorial fails
to state is that Mr Rašković was offered the post of Deputy Speaker of the
Croatian Parliament, but he rejected it. In fact the Serbs obstructed and soon
rejected all talks on their status. Rašković himself was criticized for meeting
with Tuđman and thereafter the leading role in the development of the rebel-
lion was taken over by Milan Babić.
3.62 As noted earlier, by 1991 Serbia had two alternative objectives: either
to prevent Croatia from achieving independence from the SFRY and keeping
it under Serbian control, exercised through Federal institutions, or, (if that
policy failed) ensuring that an independent Croatia existed within signifi-
cantly reduced borders than that of the Republic within the SFRY. The latter
objective was premised on Serbia’s desire to ensure that a large part of the
territory of Croatia should remain subject to its control, even if that meant
the use of force and, ultimately, the displacement or destruction of significant
parts of the Croatian population. 143
3.63 An important element of Serbian policy was the encouragement and
logistical support of a Serb rebellion in the Republic of Croatia, though not
all Serbs, nor all Serb-populated areas, joined the rebellion. 144From the sum-
mer of 1990 until the summer of 1991, the period when Serbia’s genocidal
campaign began, mass protests and demonstrations were organized on the
territory of the Republic of Croatia with a view to encouraging Serbs to mo-
145
bilize. The Belgrade media continued to prepare the Serb population for the
impending Croatian “genocide” against them, in particular during the 1990
election campaign and subsequently. The leadership of the SDS consciously
intensified the perception of threat to the Serbian community in Croatia. 146
140 See Republican Secretariat of Internal Affairs of the SRH, No. III/1-6/1-90 of 25 January
1990, Report on the Implementation of Conclusions of the DPV (Social and Political Council)
of Parliament.
141 Memorial, para. 2.87 (citations omitted).
142 Counter-Memorial, para. 478.
143 Memorial, para. 2.85.
144 Memorial, para. 2.86 et seq.
145 Memorial, para. 2.87.
146
Memorial, para. 2.88.
Volume 3.indd 70 12/14/2010 2:20:16 PM 71
3.64 Rather than take up their parliamentary seats in the Croatian Parlia-
ment, on 1 July 1990 the SDS MP’s formed the “Union of municipalities of
Lika and northern Dalmatia.” 147Soon other Serb dominated areas were also
incited and encouraged to rebel. The Memorial sets out the details of the re-
148
bellion. The Respondent claims that this establishment of municipalities
was “completely lawful” and that it was largely “a symbolic expression of the
Serb protest” and in any event 149 Municipalities were “voluntary associa-
tions without much power.” The union of municipalities was unlawful and
was annulled by the Croatian Constitutional Court on 28 August 1990. 150This
description of the union of municipalities is at odds with a contemporane-
ous source, viz the published diary entries of Borisav Jović, (the then Serbian
member of the Yugoslav Presidency). In late June 1990, the JNA and Ser-
bian leaders had, according to a “reliable source”, information that the newly
elected authorities in Croatia advocated the reconstruction of Yugoslavia into
a confederation, in other words a union of sovereign states, which would all be
subjects of international law and have the option to leave this alliance. Borisav
Jović records a conversation with General Kadijević on 27 June 1990 as fol-
lows:
“Iwouldlikeitmosttoexpelthem[Croatia]fromYugoslaviabyforce,
by simply cutting borders and declaring that they themselves caused
such a situation through their own decisions but I do not know what
to do with the Serbs in Croatia. I am not in favour of the use of force
but rather for bringing them to a fait accompli. Veljko [Kadijević]
agrees to elaborate an action in that direction, with a version to hold
a referendum [of the Serbs in Croatia] prior to the final expulsion [of
Croatia] the results of which would be used as a basis for the decision
where to draw the border line”. 151
3.65 The following day, on 28 June 1990, B. Jović discussed the same pro-
posal with President Milošević:
“Heagreeswiththeideaof‘throwingout’SloveniaandCroatia,buthe
asks me whether the army will execute such a command. I am telling
him that it must execute the order and I do not have any doubts about
it but the problem is what to do with the Serbs in Croatia and how to
ensure the majority vote in favour of such a decision in the Presidency
of the SFRY. Sloba [Milošević] gave two ideas: first, to execute this
“cutting off” of Croatia in the way that the municipalities from Lika-
Banovina and Kordun, which formed the union, remain on our side,
147 Counter-Memorial, para. 479.
148 Memorial, paras. 2.89-92.
149 Counter-Memorial, para. 479.
150 Decision of the Croatian Constitutional Court, no. U/I-214/1990, dated 28 August 1990,
Official Gazette, 3 September 1990.
151 B. Jović, Poslednji dani SFRJ [The Last Days of the SFRY], pp. 159-160.
Volume 3.indd 71 12/14/2010 2:20:16 PM 72
provided that the people later at a referendum say whether they want
to stay or leave and second, to exclude members of the Presidency of
the SFRY from Slovenia and Croatia from voting, since they do not
represent the part of Yugoslavia that makes that decision. Should the
Bosnians be in favour of it, we shall have a two-third majority. Sloba
appeals that the decision be made in a week at the latest, if we wanted
to rescue the state. Without Croatia and Slovenia, Yugoslavia will
have the population of around 17 m and for European circumstances
this is sufficient“.52
These were thus the plans of the Serbian political and military leaders with
respect to the Serbian “Union of municipalities” which was then established
in Croatia.
3.66 On the day that amendments were made to the Croatian Constitution,
on 25 July 1990, a mass rally was held in the village of Srb, on the border with
Bosnia and Herzegovina, where Milan Babić of the SDS announced the estab-
lishment of a “Serb National Council.” The Serb National Council was to take
on the handling of business of Serbs in Croatia, but there was also a separate
body called the Presidency of the Union of Municipalities of Lika and North-
ern Dalmatia. The Council rejected the Croatian Constitutional amendments
and issued a Declaration on the sovereignty and autonomy of the Serbs in
Croatia, and announced that there would be a “referendum” on the question of
Serb autonomy in Croatia. 153The Counter-Memorial states that the Declara-
tion merely “set forth political aspirations of the Serbs in Croatia.” 154It fails
to explain how “voluntary associations without much power” could reject the
Constitutional amendments of a sovereign state and adopt a Declaration es-
tablishing its own Parliament and declaring politico-territorial autonomy, and
how such actions could be considered “symbolic expressions” of protest.
(1) e sCa l Ti oN o fTh C RisisaNd Th e s eRb R e fReNd u m
3.67 August 1990 saw an escalation of the conflict. On 17 August, SDS
members broke in to police stations and seized weapons of the police reserve
forces in the areas that they controlled. The Croatian police tried to take those
weapons as prior to that armed sentries had been posted, among other things,
in the Knin area. In September 1990 the Serbs raided police stations and held
demonstrations in Banovina (for example, Petrinja). Milan Babić, the mayor
of Knin and a key figure in the SDS who went on to become the ‘President’ of
152B. Jović, Poslednji dani SFRJ [The Last Days of the SFRY], p. 161. See also Chapter 4,
infra.
153 BBC Summary of World Broadcasts, 27 July 1990, Memorial Annexes, vol 4, annex
29. The “referendum” was first announced by Rašković at the Srb rally. See also Counter-
Memorial, paras. 480-481.
154Counter-Memorial, para. 482.
Volume 3.indd 72 12/14/2010 2:20:16 PM 73
the ‘SAO Krajina’ described this as a “war situation.” 155The Counter-Memo-
156
rial contradicts the Memorial, citing selectively from a “Croatian account”
(N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croa-
tia], 2005. It alleges that the Serb “demonstrations” on 17 August 1990 were
provoked by actions of the Croatian police. It omits sections of Barić’s book
that state that prior to 17 August 1990 the Serbs had organised armed groups
and guards in the area of Knin and that the local Serb police officers had re-
nounced their loyalty to the Croatian government. 157The facts set out in the
Memorial are also confirmed by Milan Martić, Minister of Internal Affairs of
the ‘SAO Krajina’ and the ‘RSK’, and later the ‘President’ of the ‘RSK’, who
admitted in 1991, that there were no reasons for him:
“nottosaythatthebreakinofthecitizensintothepoliceweapondepots
a year ago was staged.” 158
He admitted that:
“the Serb uprising in Croatia was organized and not spontaneous”.
He also stated that the:
“moodoftheSerbpeopleissuchthattheywillnolongeracceptanykind
of autonomy, not even the territorial autonomy offered by Zagreb”. 159
3.68 A“referendum”onSerbautonomyinCroatiatookplaceon19August
1990. Supported by Serbia and the political authorities of Belgrade the refer-
endum resulted overwhelmingly in favor of autonomy, and provided the basis
160
for further action. The “Serb National Council” pronounced all municipali-
ties with substantial or majority Serb populations to be “autonomous.” 161
3.69 A day before the Republic of Croatia proclaimed its new Constitution
which inter alia envisaged a multi-ethnic Croatia with “guaranteed equality”
and safeguards for minority communities, on 21 December 1990, the Serb
community in Knin adopted a resolution on the establishment of the ‘SAO
Krajina’, with its own ‘Constitution’. 162 In the following months the Serbs re-
peatedly blocked road and rail lines in Knin and Eastern Slavonia. Thereafter
155
156 Memorial, paras. 290-292. See also Silber, pp. 100-103.
Counter-Memorial, paras. 484-485, citing N. Barić, Srpska pobuna u Hrvatskoj 1990-
1995 [Serb Rebellion in Croatia] (2005), p. 78.
157 N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia] (2005), pp.
68-70.
158 See “Truce in Croatia on Edge of Collapse”, New York Times, 20 August 1991, Annex
159.
Ibid.
160 Memorial, para. 2.93. As stated in the Memorial, there were no proper voting lists and
people in Belgrade also voted in the referendum.
161 Ibid.
162
Memorial, para. 2.94.
Volume 3.indd 73 12/14/2010 2:20:16 PM 74
the Serbs in ‘SAO Krajina’ stopped paying taxes to the Croatian Government,
and the police stations in ‘SAO Krajina’ separated themselves from the polic-
163
ing system of Croatia. It is to be noted that the territorial limits of ‘SAO
Krajina’ corresponded to the borders proposed by Šešelj. 164
3.70 The Respondent attempts to justify the adoption of the resolution to
establish an autonomous region by stating that in December 1990, the Serbs in
Knin lived under the permanent threat of an attack by the Croatian Secretari-
165
at of Internal Affairs (MUP). However, the source quoted states in fact that
they lived in permanent anticipation of it. Once again the sections of Barić
book that state that the Serbs in Knin were armed and that they obstructed
road traffic in the region are omitted. 166It argues that “the statute of the new
region envisaged this regional autonomy as part of Croatia and as a part of the
Croatian legal system” and the fact that the territory of ‘SAO Krajina’ corre-
sponded with the “borders” of a “Greater Serbia” roughly corresponded to the
167
actual territorial allocation of ethnic Serbs at the time. It does admit how-
ever that the ‘SAO Krajina’ formed its own police force and that the authority
of the Croatian MUP on the territory of the ‘SAO Krajina’ was revoked. 168
3.71 The proclamation of the ‘SAO Krajina’ and its statute were never a
part of the “Croatian legal system.” 169The so-called political leaders of ‘SAO
Krajina’ acted illegally and unilaterally, disregarding decisions made by the
authorities in Zagreb and presented the Croatian authorities with a fait accom-
pli. The proclamation of autonomy was not the result of a dialogue between
Knin and Zagreb. The fact that it was outside the Croatian legal system is
clear from the fact that the ‘SAO Krajina’ authorities set up their own Secre-
tariat of Internal Affairs and the authority of the Croatian MUP was revoked.
Thesewerealsothereasons thatcompelledCroatiatoenlargeandarmits own
police forces, which it did by January 1991. 170
3.72 The Counter-Memorial also fails to state that in the course of draft-
ing its new Constitution, the Croatian government set up a working group to
prepare proposals for Serb cultural autonomy in Croatia. The working group
produced three proposals. However, their efforts were in vain because the
leadership of the SDS and the “Serb National Council” found the group unac-
171
ceptable and were not even willing to discuss the proposals.
3.73 The Counter-Memorial sets out how additional municipalities
163
164 Memorial, paras. 2.93-95.
See Memorial, Plate 8 for the territorial extent of the “SAO Krajina”; and Memorial, Plate
7 bis which defines “Greater Serbia”.
165 Counter-Memorial,para.486(emphasisadded),citingN.Barić,SrpskapobunauHrvatskoj
1990-1995 [Serb Rebellion in Croatia] (2005), p. 83.
166 See N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia] (2005),
167 83-84.
Counter-Memorial, para. 486.
168 Counter-Memorial, para. 487.
169 Counter-Memorial, para. 486.
170 See para. 3.56, supra.
171 N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia] (2005).
Volume 3.indd 74 12/14/2010 2:20:16 PM 75
with Serb majorities joined the Serb Rebellion in late 1990/early 1991. 172
These also set up Serbian National Councils and adopted similar decla -
rations on autonomy and established their own governments, assemblies
and judicial organs. 173 These too were illegal and not a part of the “Croa -
tian legal system.” This became obvious with the adoption by the ‘SAO
Krajina’ of a resolution of disassociation with Croatia. On 28 February
1991, the “Serb National Council” of the ‘SAO Krajina’ adopted a “Re -so
lution on Disassociation between the SAO Krajina and Croatia”. 174Jovan
Rašković, the President of the SDS, publicly stated that the Republics’
borders were merely those imposed by President Tito.
3.74 On 1 April 1991, ‘SAO Krajina’ passed a resolution to join the Re-
public of Serbia. The Respondent states that this decision was not accepted
by Serbia’s National Assembly, which instead, adopted a declaration on the
peaceful resolution of the Yugoslav crisis. 175This issue has been addressed
at paragraph 3.39, supra. Nevertheless, on 12 May 1991 ‘SAO Krajina’ held
a referendum on “union with Serbia” and a common state with Serbia and
Montenegro (Greater Serbia), which was supported by an overwhelming ma-
jority.176The Respondent states that President Milošević “publicly opposed
the referendum”. 177As stated above, in making this argument Serbia looks
at form rather than substance. Milošević had clearly stated his goal of “one
state” for all Serbs on 16 March 1991, irrespective of what he may have said
178
“publicly”.
3.75 The ‘SAO Krajina’ referendum seeking “union with Serbia” was held
a week before the Croatian Government’s referendum in which the elector-
179
ate overwhelmingly voted for independence from the SFRY. Shortly after
Croatia’s referendum, on 29 May 1991 ‘SAO Krajina’ set up its “government”,
including its Ministry of Defense. Over the next few months it established its
armed forces (this included the police, TO and special police units (Milicija
Krajine)). 180
172 The Serbs in Eastern Slavonia did not adhere to the SAO Krajina; they formed their own
Serb region. The Serbs in Western Slavonia were for a time part of SAO Krajina and only later
became a ‘Special Autonomous Region’.
173
174 Counter-Memorial, paras. 487-489.
See “The Serbian Krajina, Historical Roots and its Birth” ISKRA 1994, Chronology of
Important Events (A resolution on a purported secession was also adopted by the municipali-
ties of the “SAO Krajina” on 19 March 1991). See also Counter-Memorial, paras. 490.
175 Counter-Memorial, para. 492.
176 The question posed on 12 May 1991 was: “Are you for the unification of (SAO) Krajina
with the Republic of Serbia and are you for Krajina to stay within Yugoslavia with Serbia,
Montenegro and others who want to preserve Yugoslavia?”. See N. Barić, Srpska pobuna u
Hrvatskoj 1990-1995 [Serb Rebellion in Croatia] (2005), p. 101.
177 Counter-Memorial, para. 492.
178 See para. 3.38, supra.
179
180 Memorial, para. 2.113.
Counter-Memorial, para. 494 and its Annexes 15, 16 & 17.
Volume 3.indd 75 12/14/2010 2:20:17 PM 76
(2) Th e il l e g lRoCl a m a Ti oN o fTh eRsK
3.76 A few months later, on 19 December 1991, the “Assembly” of SAO
181
Krajina proclaimed the so-called ‘Republic of Serbian Krajina’ (‘RSK’).
This was joined by the ‘SAO Western Slavonia’ (formed on 13 August 1991)
and ‘SAO Slavonia, Baranja and Western Srem’ on 26 February 1992. These
wereillegalandunconstitutionalactions,irrespectiveofhowSerbiaseeksnow
to legitimize them. Serbia describes the “Constitution” of the ‘RSK’ which
defined the ‘RSK’ as the “national state of the Serbian people and the state of
all citizens living in it;” it states that “legislative and constitutional powers
belonged to the RSK Assembly, while the government had executive pow-
ers”, and that the ‘RSK’ was represented by its President, “who commanded
its armed forces in peace and war.” 182 Serbia also states that “[a]mendments
to the RSK Constitution established the Serb Army of Krajina (‘SVK’) on 18
183
May 1992. The Respondent reluctantly admits that the “RSK was never
recognized as a State” though it had “de facto control over substantial territory
184
and enjoyed loyalty of its population.”
3.77 The Respondent initially tries to portray these illegal actions as
“manifestations of national sentiments of the Serbs” ; “completely lawful”
and merely “symbolic expressions of Serb Protests.” 186 Then the actions of
‘SAO Krajina’ (an unconstitutional entity) are said to be a “part of the Croa-
tian legal system” 187and “steps towards achieving greater autonomy.” 188Fi-
nally, the Respondent claims that by May 1991 ‘SAO Krajina’ with its own
so-called Parliament, Government and court system was “de facto an autono-
189
mous region existing on the territory of the Republic of Croatia.” In a bid to
distance itself from the ‘RSK’ - an illegal entity - Serbia states that while the
‘RSK’ “enjoyed political and financial support of the FRY/Serbia, the RSK
was neither a part of the FRY/Serbia nor an entity under its control, but a de
facto State entity on the territory of Croatia”. 190
3.78 While stating that the nationalism of the Croatian government “sig-
nificantly contributed” to the eruption of the conflict and its aggravation, the
Respondent makes two important admissions. Firstly, it concedes that the re-
gime of Mr Milošević manipulated the fears and anxieties of the Serbs in
191
Croatia, and misused their troubles for its own purposes, thereby admitting
Milošević’s role and involvement in the Serb rebellion. Secondly, it admits
181
182 Counter-Memorial, paras. 494-496.
Counter-Memorial, para. 562.
183 Ibid.
184 Ibid.
185 Counter-Memorial, para. 475.
186 Counter-Memorial, para. 479.
187
188 Counter-Memorial, para. 486.
Counter-Memorial, para. 498.
189 Counter-Memorial, para. 498
190 Counter-Memorial, para. 562.
191 Counter-Memorial, para. 497.
Volume 3.indd 76 12/14/2010 2:20:17 PM 77
that the creation of a Serb autonomous region within the territory of the Re-
public of Croatia was unconstitutional, as it was
“not recognized as an autonomy or federal entity under the SFRY
constitutional order.”192
In making this admission the Respondent contradicts itself twice. This state-
ment proves (a) that the internal borders of the Republics were not purely
administrative as contended by Serbia; and (b) that the ‘SAO Krajina’ was not
a “part of the Croatian legal system.” 193
3.79 Also, contrary to what is stated in the Counter-Memorial, 194 and as
considered above, Zagreb did try to engage with the rebel Serbs, but the rebel
Serbs rejected any solution that involved the peaceful establishment of an
independent Croatian state within the existing borders of the Republic.
3.80 It is evident from the foregoing that the Serb rebellion in Croatia was
leadbytheSerbianleadershipinBelgrade,relyingonSerbianstate-controlled
195
media and with the full support and protection of the JNA.
SECTION III: DISSOLUTION OFTHE SFRY
3.81 The Counter-Memorial makes some passing references to the role of
the JNA in Chapter V. A comprehensive response to the role of the JNA is set
out in the following Chapter. However, some brief comments may be made
here. This section also addresses the Respondent’s claims that that the SFRY
existed as a subject of international law in 1991 and early 1992 and that its
organs continued to function as SFRY organs. As stated in the Memorial, and
set out below this was not the case. From the spring of 1991, the Presidency
of the SFRY was not the federal organ it once was. It became a tool used by
Serbia to conduct its unconstitutional and illegal actions under the guise of
Constitutional authority. This is equally true regarding the other federal or-
gans of the SFRY.
(1) Th eR o l eo fTh eJNa iN Cl u dNig iTs a l l dbgu f fe ZoNe ” po lCi y
3.82 The Respondent claims that the JNA was not a “Serbian Army” but
remained a de jure organ of the SFRY, acting under the political guidance of
196
the Presidency of the SFRY; that the JNA performed a “peacekeeping” role;
and that the JNA’s participation in the “armed conflict” in Croatia was effec-
192 Counter-Memorial, para. 498
193
194 Counter-Memorial, para. 486.
Counter-Memorial, para. 497.
195 See Chapter 4, infra.
196 Counter-Memorial, inter alia paras. 507, 531-533.
Volume 3.indd 77 12/14/2010 2:20:17 PM 78
197
tively over by the end of 1991. While some preliminary remarks regarding
these claims are set out here, these claims are refuted comprehensively in
Chapter 4, infra.
3.83 Basing its claim on the ‘Balkan Battlegrounds’ Report, the Respon-
dent claims that the JNA were “neutral peacekeepers” through the summer of
1991, until 14 September 1991, when Croatia attacked the JNA barracks and
198
facilities in Croatia. The inaccuracies and misrepresentations with regard
to this so-called neutrality of the JNA are dealt with extensively in Chapter 4,
infra. Chapter 4 also demonstrates that the authority cited by Serbia does not
support its view. In any event Croatia was not alone in viewing the JNA as an
instrumentality of Serbia and Serbian interests. European monitors also dis-
puted the JNA’s “peacemaking” role. The European Community, in its Dec-
laration on Yugoslavia of 27 August 1991 emphasised that it cannot be denied
any longer:
“that elements of the Yugoslav People’s Army are lending their active
support to the Serbian side”. 199
3.84 As set out in the Memorial, in March 1991, rebel Serbs disarmed the
Croatian police in the Western Slavonian town of Pakrac, and purported to
declare the district a part of the ‘SAO Krajina’. This lead to the intervention
of the Croatian Police. 200The SFRY Presidency (Jović) ordered the Croatian
police to withdraw, 201and the JNA purported to take on the role of mediator
between the opposing sides. In fact it was protecting the Serbian side. This
became a model for similar interventions by the JNA in the spring and sum-
mer of 1991. First at Plitvice which was occupied by the police of ‘SAO Kra-
jina’. Plitvice was subsequently occupied by JNA units purportedly to create
a “buffer-zone”. A similar “buffer-zone” was also established in Borovo Selo
(near Vukovar) in April 1991. In reality the JNA assisted Serbia and the rebel
Serb in their bid to establish new borders for the ‘SAO Krajina’ and in effect
prevented the Croatian authorities from exercising control over their territo-
202
ry. As stated in the Memorial, Slavonia was of particular interest to Serbia
because it bordered Serbia and had a numerically significant Serb popula-
203
tion.
3.85 The Respondent also claims that the JNA’s participation in the armed
conflict in Croatia was effectively over by the end of 1991, after the ceasefire
197Counter-Memorial, paras. 500-508.
198 Counter-Memorial, paras. 500-503.
199Declaration on Yugoslavia: adopted at EPC Extraordinary Ministerial Meeting, Brussels,
27 August 1991, Trifunovska, p. 333.
200
201 Memorial, para. 2.101
See Financial Times, 4 March 1991, Memorial, Annexes, vol. 4, annex 33.
202 Memorial, paras. 2.101-104. See also Chapter 4, infra.
203 Memorial, paras. 2.103-104.
Volume 3.indd 78 12/14/2010 2:20:17 PM 79
agreement concluded of 2 January 1992. 204 This claim is refuted comprehen-
sively in Chapter 4. 205
3.86 In addition to the continuing involvement of the JNA in the conflict;
its role in directing, organising, arming and otherwise supporting the rebel
Serbs which is dealt with in the following Chapter, Serbia and through it the
JNA were also directly responsible for organising, mobilising, staffing and
arming the rebel Serb TO into an army of the ‘RSK’. 206
(2) T h ed i s s o i oN o fTh esfRy aNd Th e C o l l a p soefTh sfRy p Re s i eCy
3.87 TheRespondentstatesthatit“stronglyopposes”Croatia’sviewwhich
is designed to make Serbia responsible for the conduct of the SFRY organs
and of the organs of the emerging Serb entity in Croatia, which took place be-
fore the FRY/Serbia came into being on 27 April 1992. It claims that the SFRY
continued to exist in 1991 and early 1992 and responsibility for its actions, if
this can be established, can only be attributed to the SFRY.
3.88 The Respondent asserts that:
• the dissolution of the SFRY was an extended and complicated
process;
• during the late 1991 and early 1992 the SFRY was perceived and
accepted as a subject of international law;
• the SFRY federal organs continued to function and were headed
by individuals coming from different republics of the SFRY; they
exercised public authority on behalf of the SFRYand were not de
207
facto organs of the "emerging FRY" or Serbia.
3.89 These claims are dealt with comprehensively in Chapter 7, infra. The
following brief response can nevertheless be made. Though the dissolution of
the SFRY was an extended process, it was well advanced by the second half of
1991. The fact that the FRY/Serbia only formally proclaimed itself on 27 April
1992 does not mean that acts occurring prior to that date cannot be attributed
to it.08 In the period prior to the proclamation of the FRY/Serbia the conduct
which is the subject of Croatia’s Application was directed by the Serbian lea-
dership, which controlled the relevant political apparatus and the military, in
209
the form of the JNA and the Serb paramilitary groups.
204 Counter-Memorial, para. 508 (emphasis added).
205 See also Memorial, para. 3.67 et seq.
206
207 This is elaborated in Chapters 4, 10 and 11.
Counter-Memorial, paras. 510- 537.
208 See Memorial, para. 8.40 et seq. See also Chapter 7, infra.
209 As described in the Memorial, in Chapters 2 and 3:
a. From mid-1991 the SFRY ceased to operate as a functioning State and was autho-
ritatively recognised as in a “process of dissolution” (Memorial, Chapter 2, paras.
2.105-109, 2.120).
Volume 3.indd 79 12/14/2010 2:20:17 PM 80
3.90 While the Badinter Commission stated that Yugoslavia was in the
‘process of dissolution’, in November 1991, that process had started earlier.
And while the organs of the SFRY may have continued to function, the SFRY
was a functional state in name only. It did not exercise public authority on
behalf of the federation. In fact the Respondent admits that the “by the end
of ... the 1991 SFRY federal authorities were facing substantial difficulties in
their work” and that from 1991 members from different Republics had started
210
to leave their posts.
3.91 In order to demonstrate that the SFRY was a functioning state and a
subjectofInternationalLawin1991andearly1992SerbiastatesthattheSFRY
entered in to Treaties and took part in diplomatic conferences, and States con-
tinued to maintain diplomatic ties with the SFRY. 211The Respondent inter alia
refers to a number of letters from the Ambassadors of the former USSR, Indo-
nesia and Mali written between November 1991 and the end of January 1992,
each of which announce the appointment of an ambassador from the country
concerned to the Presidency of the SFRY. 212The Applicant notes that no letter
by a Member State of the European Community is included, since none was
sent. On 5 October 1991, after the four-member Serbian bloc in the Presidency
declared the day before that it would work in the existing format (with four
members), the member-states of the European Community declared that such
a Presidency was unacceptable and that they would, as testified by B. Jović
213
“ignore our decisions or consider them non-existent”.
3.92 The Respondent contends that the SFRY’s federal organs continued
to function after mid-1991, exercising public authority on behalf of the SFRY,
and that they were headed by individuals from the different Republics. (In
fact, it states, most important SFRY officials originated from Croatia, and
most were ethnic Croats). 214These claims are also refuted in the following
215
Chapter.
b. Thereafter, and in particular from October 1991, the relevant organs of government
and other federal authorities of the SFRY ceased to function as such and became de
facto organs and authorities of the emerging FRY/Serbia acting under the direct con-
trol of the Serbian leadership, embodied in particular in the President of Serbia but
extending also to relevant officials in Ministries of Defence and Interior (Memorial,
Chapter 2, paras. 2.110-112).
c. The JNA ceased to be the army of the SFRY and became, initially, a de facto organ
of the emerging FRY/Serbia (comprised of the Republics of Serbia and Montenegro)
taking instructions directly from, and acting in the service of, the Serbian leadership
(Memorial, Chapter 3, paras. 3.02, 3.33-42).
210 Counter-Memorial, para. 513.
211 Counter-Memorial, paras. 516-518.
212 Counter-Memorial, para. 517 and its Annex 24.
213 B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], pp. 392-393. Serbia admits this
214para. 527
Counter-Memorial, paras. 519-520.
215 Further evidence of the process of “Serbianisation” of the SFRY’s federal institutions and
oftheSerbian“strategyofwarcrimes”forachievingpoliticalgoals,announcedinGazimestan
in June 1989, is set out in James Gow, The Serbian Project and its Adversaries: A Strategy of
War Crimes, McGill-Queen’s University Press, 2003.
Volume 3.indd 80 12/14/2010 2:20:17 PM 81
(a) The Takeover of the SFRY Presidency by Serbia
3.93 The Memorial describes how after the death of President Tito, Presi-
dential authority vested in a collective Presidency which included represen-
tatives of all the Republics and Autonomous Provinces. Each member was
elected for a term of five years and the Presidency was required to rotate
the positions of President and Vice-President from among its members for a
term of one year, according to a schedule lay down by the Presidency Rules
of Procedure. 216It also sets out how this constitutionally prescribed rotation
of the Presidency was thwarted on 15 May 1991 when the Serbian representa-
tive (Borisav Jović) was to be replaced by the Croatian representative (Stje-
pan Mesić). 217Serbia with the support of Serbian controlled members of the
SFRY Presidency voted against the election of Mr Mesić. The vote against
him was also supported by high-ranking JNA officers, acting in concert with
the Serbian representatives/Serb controlled members in the Presidency. This
constitutional crisis marked the beginning of the dissolution of the SFRY, and
a crucial step in the Serbian takeover of the apparatus of the Federation. This
was a matter of international concern, with the European Community calling
218
for the rotation in the Presidency to be respected. The Respondent weakly
argues that the appointment of Mr Mesić as President was “delayed due to
political conflicts,” 219a classic Serbian understatement, misrepresentative of
the facts.
3.94 On 25 June 1991, both Croatia and Slovenia proclaimed their disso-
ciation from the SFRY. This was followed by a brief conflict in Slovenia. Dur-
ing this time however, the European Union secured agreement that Mr Mesić
would be installed as President and that Croatia and Slovenia would “freeze”
their independence declarations for three months. This occurred at a midnight
216 Memorial, para. 2.16. The Constitutional provisions in this regard included the
following:
The Presidency of the SFRYwas a collective body that represented the SFRYin the coun-
try and abroad, it coordinated the common interests of the republics and the autonomous
provinces, and was the supreme body in charge of the administration of theArmed Forces
of the SFRY in war and peace (The Constitution of the Socialist Federal Republic of Yu-
goslavia 1974,Article 313.)
The term of the President and the Vice-President began on 15th May and ended on the
same day the following year. The Presidency of the SFRY worked on the basis of con-
sensus and made decisions as determined by the Standing Orders of the SFRY Presidency
(Article 330).
Consensus was the primary Constitutional principle in the work of the Presidency, in other
words agreement of representatives of all the republics and the provinces. In cases where
such an agreement could not be reached, each member of the Presidency could put forward
a motion to vote, where the principle of making decision on the basis of majority was
respected. With regard to the management and command of the Armed Forces, five votes
were necessary to make a decision.
217Memorial, para. 2.105.
218Ibid.
219Counter-Memorial, para. 522.
Volume 3.indd 81 12/14/2010 2:20:17 PM 82
session of the SFRY Presidency on the night of 30 June/1 July 1991. 220
3.95 It became increasingly clear during this period that the non-Serbian
members of the federal authorities had no influence in the SFRY Presidency
and other SFRY organs. 221President Mesić’s lack of authority is apparent from
222
the way he was ignored by the JNA; After the bombing of the building in
Zagreb, on 7 October 1991, where President Marković of the Federal Execu-
tive Council was in a meeting, his demand for the resignation of Federal De-
fense Secretary, General Kadijević was also refused. 223 By October 1991, the
SFRY payroll office had stopped paying the salary of President Mesić. 224 The
Memorial also sets out other examples that demonstrate the loss of authority
of the President of the Presidency of the SFRY and the increasing control ex-
225
ercised by the Serbian authorities.
3.96 While the SFRY Presidency may have operated in full or near full
composition until early October 1991, it became increasingly clear to the non-
Serbian members of the SFRY Presidency that they could exercise no real
authority/influence in this federal organ and that the Presidency had been
taken over by Serbia and Serbian controlled members. The Respondent disre-
gards and relativises one of the most important functions of the Presidency of
the SFRY, namely to coordinate the common interests of the 6 republics and
226
2 autonomous provinces. Initially through amendments to its Constitution
(in March 1989) and then in September 1990, through the promulgation of the
227
Constitution of the Republic of Serbia, Serbia brought the provinces under
its control, thereby irrevocably altering the concept of Yugoslav federalism.
With the adoption of the Serbian Constitution of 1990, the autonomy of the
two provinces became a mere formality. From then on Serbia had three votes
in the Presidency (its own, and the votes of Kosovo and Vojvodina). 228From
then on Serbia (with only one additional vote) could control the work of the
Presidency or prevent it from taking any decisions. This it did.
3.97 The Presidency limped along (in nothing but form) until 7 September
1991 but it members ceased to meet with the beginning of the Hague Confer-
220 Memorial, paras. 2.106-2.107.
221
This tendency had been in evidence at earlier stages, for example Kadijević had refused to
communicatewiththenon-SerbianmembersoftheSFRYPresidencyinMarch1991following
the Presidency vote against the proclamation of emergency measures sought by the JNA, see
Memorial, para. 2.107, note 174.
222 Memorial, paras. 2.106-107 and Chapter 4, infra.
223 See Memorial, footnote 175.
224
Memorial, para. 2.107. The Respondent claims that President Mesić claimed a salary until
1 January 1992 (Counter-Memorial, para. 528). This is irrelevant; no salary was in fact paid
after October 1991.
225 Memorial, paras. 2.108-109.
226 Constitution of the Socialist Federative Republic of Yugoslavia, Official Gazette of the
SFRY, Belgrade, 1974, Article 313.
227
Constitution of the Republic of Serbia, [Službeni glasnik Republike Srbije], Official
Gazette of the Republic of Serbia, 28 September 1990, in particular Basic Provisions, also
Articles 109 and 112.
228 Silber, p. 73.
Volume 3.indd 82 12/14/2010 2:20:17 PM 83
229
ence on Yugoslavia in 1991. In early October 1991 the Serbian-Montenegrin
bloc completely took over the Presidency. From 3 October 1991, this rump
Presidency of the SFRY made all decisions by a majority of votes of those
present. 230
3.98 Jović’s memoirs contain sufficient material testifying to how the
Presidency actually functioned and the scope of the Serbian conspiracy. Gen-
eral Kadijević also admitted that the JNA identified the politicians it trusted
and those it did not trust. According to him the Presidency was made up of
three types of politicians. In the first category were politicians
“firmly committed to Yugoslavia and to its democratic transformation
231
by peaceful means”.
Asecond group was made up of the
“bitterest enemies of Yugoslavia’s unity who did everything they could
to destroy it; a part of them directly worked for foreign countries and
on their orders”. 232
And a third group was made up of
“waverers whose behaviour varied from situation to situation but who
233
were mainly unreliable in all crucial situations.”
Even though the Presidency was constitutionally required to make decisions
collectively,andtheJNAwasobligedtopresentalltheirproposalsandactions
to the entire Presidency. The JNA rejected this, and according to Kadijević,
began “to act completely differently.” In his Memoirs, he states:
“So, for example, when it comes to planning, issuing written
Directives,DecisionsandOrdersoftheSupremeCommand,wecould
not do what is normally done by more or less any army of the world
since each such written document would end up in the hands of the
enemy”. 234
3.99 Borisav Jović, the Serbian member of the Presidency of the SFRY,
also testifies to these double standards and unconstitutional practices of the
JNA as early as November 1989, before the multi-party elections in Slovenia
and Croatia. According to Jović, from mid-November 1989 Kadijević “was a
permanent guest” of the Serbian member of the SFRY Presidency, to whom
229Stjepan Mesić, Kako je srušena Jugoslavija [How Yugoslavia was Brought Down], Mislav
Press Zagreb 1994, at p. XI, Memorial, Appendices, vol 5, appendix 4.2.
230 Neposredna ratna opasnost uslovljava rad [Work is conditioned by immediate war threat],
Narodna armija, 5 October 1991, p. 3.
231 Veljko Kadijević, Moje viđenje raspada [My view of the Dissolution], Politika, Belgrade,
2323, p. 91.
Ibid.
233 Ibid.
234 Ibid.
Volume 3.indd 83 12/14/2010 2:20:17 PM 84
he presented detailed JNA analyses since he did not want to “present this to
the entire Presidency for understandable reasons”. 235
The illegality of these actions appears to have been of no real concern to the
JNA and the then Vice-President of the Presidency. When Jović took over as
President for a one-year term these unconstitutional contacts were intensified.
In fact an unconstitutional system of command and decision-making was set
up by the JNA. Jović and Kadijević were joined by Milošević, who as the
President of Serbia had no legal authority over the JNA.
3.100 From August 1991 an informal group consisting of the leaders of Ser-
bia-Montenegro and the generals of the JNA functioned independently. The
group assessed military and political situations and proposed decisions. 236By
the end of 1991 this group had met at least eleven times. All issues regard-
ing military action, which were constitutionally within the jurisdiction of the
Presidency and the Supreme Command of the SFRY, were discussed and deci-
sions were made, at these meetings. 237
3.101 It is clear from the preceding paragraphs that the Presidency of the
SFRY was not the federal organ it once was. It became a tool used by Serbia
to conduct its unconstitutional and illegal actions under the guise of consti-
tutional authority. The Presidency’s decision dated 18 July 1991 on the with-
drawal of the JNA from Slovenia illustrates what the de facto Presidency of
theSFRYbecame.ThisisalsoclearfromtheconversationbetweenKadijević,
Jović and Milošević on 5 July 1991 when they agreed on the withdrawal of the
JNA from Slovenia towards the planned Serbian borders and on “covering”
238
the territory inhabited by the Serbs.
3.102 The Respondent admits that there were “deep disagreements and
conflicts in the Presidency”, 239but claims that from October it continued to
function and take decisions despite the absence of some of its members. The
members present and voting were Serbia, Montenegro, Kosovo and Vojvodi-
240
na. The Respondent admits that:
“itistruethatthememberswhoremainedactiveintheSFRYPresidency
were political allies of the Serbian President.” 241
In these circumstances it is apparent that the Presidency did not function ef-
fectively nor was it in fact the Presidency of the SFRY. Serbia also admits that
the Member States of the European Communities, refused to acknowledge the
decisions of the SFRY Presidency, on 5 October 1991. 242
235 B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], .p 68.
236 Ibid., p 371.
237
238 Ibid., pp. 371, 382-383, 385-387, 391-392, 394, 402-403.
Ibid., pp. 349-350.
239 Counter-Memorial, para. 523.
240 Counter-Memorial, para. 526.
241 Counter-Memorial, para. 529.
242 Counter-Memorial, para. 527.
Volume 3.indd 84 12/14/2010 2:20:17 PM 85
(b) The Takeover of Other Federal Institutions by Serbia
3.103 As stated above, the leadership of the Republic of Serbia had taken
controlofthefederalinstitutionsoftheSFRY,includingthePresidency,which
was located in Belgrade, and was directing the activities of the JNA. These
developments, culminated on 4 October 1991 with President Mesić being de-
posed by the members of the Presidency from Serbia, Montenegro, Vojvodina
and Kosovo. 243 They had called a meeting in Belgrade which they knew Mr
Mesić, who was in Zagreb, would be unable to attend because of the fighting
in Croatia. Subsequently, after expelling Slovenia from the Presidency and in
that way obtaining a 4:3 majority in the Presidency, Branko Kostić of Monte-
244
negro then chaired the Presidency in his capacity as vice-president.
3.104 By the time President Mesić had been deposed widespread fighting
had erupted in Croatia and Serbia’s genocidal campaign was well underway.
By that time the JNA was under the control of Serbia, Serbian paramilitary
groups had been established to engage in armed activities in Croatia, and by
an order of 13 September 1991, those paramilitary groups including units of
the regular TD of Serbia and Montenegro, had been formally incorporated
into the JNA. A genocidal campaign was underway in Banovina and Eastern
Slavonia. 245
3.105 Despite facts to the contrary, the Respondent continues to maintain
that the JNA did not lose its Yugoslav character and was not “Serbianised”, 246
even when there were direct clashes with the Croatian armed forces. These
claims are refuted in the following Chapter.
3.106 WithrespecttotheroleoftheJNA,theRespondent’sapproachiscon-
tradictory and even confused. This aspect will be fully addressed in Chapter
4. For the present purposes it is sufficient to note, by way of example, that
while the Respondent states that the relationship between the leadership of
the JNA and Serbia was “tense, precarious, even conflicting”, it nevertheless
admits that the
“JNAleadership and the Serbian leadership were political allies during
the armed conflict in Croatia.”
3.107 The Respondent argues that the JNA was not a de facto organ of the
Serbian leadership but was a de jure organ of the SFRY. 247 Firstly, these two
243
Memorial, para. 2.110. On 4 October 1991 the Serbian controlled members of the SFRY
Presidency had purported to declare a state of emergency or “war danger” in contravention
of the procedures laid down in the Constitution, described in Stjepan Mesić, Kako je srušena
Jugoslavija [How Yugoslavia was Brought Down], Mislav Press Zagreb 1994, at pp. 268-
269.
244 Memorial, para. 2.110. He was appointed to the post by his own vote and that of the three
Serb members of the Presidency representing Serbia, Vojvodina and Kosovo.
245 Memorial, para. 2.112. See also Chapter 4, paras. 4.108-110, infra.
246
247 Counter-Memorial, paras. 531-532.
Counter-Memorial, para. 533.
Volume 3.indd 85 12/14/2010 2:20:18 PM 86
positions are not mutually exclusive. Secondly, even this argument is shown
to be false in the light of Jović’s diary entries. Thirdly, while the details of the
relationship of the leadership of the JNA and Serbia has already been touched
upon and will be further demonstrated in Chapter 4, one also needs to look
at the rank and file membership of the JNA and its Serbian character. Jović’s
diary entries show that Serbia was careful not to rush into the open because of
international factors. Instead it sought to implement its plans under the cloak
of the JNA. Finally, from late June 1991 all the Republics except Serbia and
Montenegro refused to send conscripts and money to the JNA and therefore
the JNA was dependant on only those two Republics.
3.108 The Counter-Memorial also seeks to establish the “Yugoslav charac-
ter” of the federal organs through the functioning and ethnic composition of
the Constitutional Court of Yugoslavia. 248While it is true that the Constitu-
tional Court declared unconstitutional the legislative acts of all the Republics,
this is completely irrelevant for the purposes of the facts of this case. It is
noteworthy that the Constitutional Court failed to declare as unconstitutional
the Decision of the Presidency of the SFRY dated 18 July 1991 on the with-
drawal of the JNA from Slovenia. This decision violated the Constitution of
the SFRY as well as three other laws. The Constitutional Court did not initiate
proceedings to question its constitutionality and legality since the decision
249
was not duly promulgated in the Official Gazette of the SFRY.
(3) h u m N R i g Ts vi o lTi oNs iNC Ro aTi a
3.109 The Respondent’s silence with respect to the United Nation’s con-
demnation of human rights violations and ethnic cleansing in Croatia speaks
250
volumes. The UN monitored the situation of human rights in the former
SFRY on a regular basis throughout the crisis, 251and the Memorial referred to
some of the key resolutions and reports adopted during this period. The Me-
morial referred to various reports of the UN Commission on Human Rights’
Special Rapporteur to investigate the situation on human rights in the former
Yugoslavia - the former Polish Prime Minister, Tadeusz Mazowiecki. In his
report on 28 August 1992 he noted amongst other things that ethnic cleansing
was “the cause of most such violations”. 252 He continued to monitor the situ-
248
249 Counter-Memorial, para. 535.
All the relevant decisions, regulations and similar acts of the federal state were published
in the Official Gazette of the SFRY. (Constitution of the Socialist Federative Republic of
Yugoslavia, Official Gazette of the SFRY, Belgrade, 1974, Article 269.) This is yet another
indication that the SFRY did not even function at a paper level. See also Milovan Buzadžić,
Secesija bivših jugoslovenskih republika u svetlosti odluka ustavnog suda Jugoslavije: Zbirka
dokumenata s uvodnom raspravom [Secession of the Former Yugoslav Republics in the Light
of the Decisions by the Constitutional Court of Yugoslavia: A Collection of Documents with
the Introductory Discussion], Official Gazette of the SFRY, Belgrade, 1994, pp. 236-237.
250 Memorial, paras. 2.130 et seq.
251 Reference was made to UN reports of specific incidents and human rights violations in
Chapters 3, 4 and 5 of the Memorial.
252 See Report on the situation of human rights in the territory of the former Yugoslavia, E
CN.4/1992/S-1/9, at para. 6.
Volume 3.indd 86 12/14/2010 2:20:18 PM 87
ation in the former SFRY and in particular investigated the situation in the
United Nations Protected Areas (see infra) and the plight of ethnic Croats and
other non-Serbs in these areas. In his 1994 report, for example, the Special
Rapporteur noted continuing human rights violations against Croats and other
non-Serbs in parts of Sectors South and East. 253
3.110 AsstatedintheMemorial,boththeUNCommissiononHumanRights
and the General Assembly, in condemning the practice of ethnic cleansing in
the former SFRY, found that the Serbian leadership in the territories under
their control, the JNA and the political leadership of the Republic of Serbia
254
bore “primary responsibility for this reprehensible practice”.
3.111 Non-governmental organizations were also active in monitoring hu-
man rights violations throughout the conflict. The Memorial referred particu-
larly to the August 1992 Helsinki Watch Report which noted that:
“During the war in Croatia, Serbian forces engaged in practices which
closely resemble those used to “cleanse” areas of non-Serbs in Bosnia
255
and Herzegovina”
It went on to state that:
“InCroatia,Serbiancivilian,paramilitary,policeandmilitaryauthorities
have systematically expelled non-Serbs from their homes in Serbian-
256
occupied areas of the country”.
The worsening situation of the Croats in the occupied areas is dealt with in
Chapter 10, infra.
3.112 Significantly, since the filing of the Memorial, the ICTY has rendered
a number of judgments that are relevant to these proceedings. The relevance
of findings of the ICTY has been discussed in Chapter 2, at paragraphs 2.25-
33, and the findings themselves are considered further in Chapters 5 and 6.
Some of these findings are set out here, in brief, to demonstrate the nature of
the abuse suffered by the Croats.
1. Milan Babić pleaded guilty to the crime against humanity of
persecutions on political racial and religious grounds committed while
he was President of the MunicipalAssembly in Knin, and also President
of the Serbian National Council and the Executive Council of the ‘SAO
253See Report E/CN.4/1994/110, paras. 107-109. See also Chapter 10, paras. 10.34-38, infra.
254 nd
Memorial, para. 2.133. See also Commission on Human Rights, 2 special session,
Resolution “The situation of human rights in the territory of the former Yugoslavia” 1992/S-
2/1of1December1992,para.3,endorsedinUNGeneralAssemblyResolutionA/RES/47/147
of 26 April 1993, para. 16; and UNGA Resolution A/RES/47/147 of 26 April 1993, adopted on
18 December 1992 at para. 3 (Memorial, Annexes, vol. 4, annex 5.)
255 Memorial, para. 2.135, (citing the Helsinki Watch Report on the former SFRY, August
1992, p. 52).
256Ibid.
Volume 3.indd 87 12/14/2010 2:20:18 PM 88
Krajina’. The basis of the plea was that Serb forces had taken control of
towns, villages and settlements in the ‘SAO Krajina’and had
“established a regime of persecutions designed to drive the Croat
and other non-Serb civilian populations from these territories.
The regime, which was based on political, racial or religious
grounds, included the extermination of murder of hundreds of
Croat and other non-Serb civilians... the prolonged and routine
imprisonment and confinement of several hundred Croat and
other non-Serb civilians in inhumane living conditions … the
deportation and forcible transfer of thousands of Croat and other
non-Serb civilians….” 257
The acts he was accused of started on or about 1 August 1991
and continued until June 1992. 258He was sentenced to 13 years of
imprisonment, affirmed on appeal.
2. Milan Martić was convicted of 16 counts of crimes against humanity
(including persecutions, murder, imprisonment, torture, inhumane acts,
deportation and forcible transfer) and war crimes (including murder
and torture) and sentenced to 35 years’ imprisonment. The Appeals
Chamber upheld convictions on each of the 16 counts and added further
convictions for crimes against humanity. It also upheld the sentence
of 35 years’ imprisonment. 259 During the relevant time, Martić was a
senior figure in the leadership of the ‘SAO Krajina’, later the ‘RSK’,
culminating in his election as ‘President’of the ‘RSK’in January 1994.
He was
‘’considered one of the most important and influential figures in the
SAO Krajina and the RSK governments.’’ 260
3. Goran Hadžić, as President of the Government of the “SAO of
Slavonia, Baranja and Western Sirmium” and, later, President of the
RSK, was charged with the crimes against humanity of persecutions,
exterminations, murder, imprisonment, torture, inhumane acts and
deportation, as well as numerous counts of war crimes, mostly in the
Eastern Slavonia. Hadžić is one of only two outstanding fugitives from
the ICTY. 261
3.113 In addition to setting out the nature of the genocidal acts perpetrated
against the Croats, which are dealt with comprehensively in the Chapters that
follow, the ICTY case law also establishes many of the facts on which the
257
258 Babić, para. 15.
259 Ibid., para. 16; see also para. 34.
Martić, Case IT-95-11, Appeals Chamber Judgment, 8 October 2008.
260 Martić, para. 449.
261 Press Release, 19 July 2004, JP/P.I.S./872-e, quoted in Chapter 9, para. 9.93, infra.
Volume 3.indd 88 12/14/2010 2:20:18 PM 89
Applicant relies and that are pertinent to this case, including the existence
of a joint criminal enterprise within the Serbian political and military infra-
structure to eradicate ethnic Croats from the regions under consideration in
the claim: this is addressed in more detail in Chapters 5, 6 and 9. ICTY case
law also establishes “beyond reasonable doubt” that from at least August 1991
there was a common political objective to unite Serb areas in Croatia and in
Bosnia and Herzegovina with Serbia in order to establish a unified Serb State,
through the establishment of paramilitary forces, and by the use of a JNA,
largely purged of its non-Serbian elements. 262
***
3.114 The Respondent alleges that with the outbreak of the war in 1991,
Serbs suffered systematic violations of their human rights both in areas where
the fighting took place, as well as violations that were not directly connected
263
with the fighting. While all these allegations will be dealt with subsequent-
ly, some preliminary points may be made here. Firstly, this Section of the
Counter-Memorial is full of statements like the following:
“There is evidence of numerous extrajudicial executions and
disappearances of Serbs in Croatia, in particular during 1991-1992.
Mostofthesecrimeshavenotreceivedproperinvestigationnorhave
the perpetrators been punished, although the Croatian authorities
have resolved some of these cases in recent years. Evidence reveals
that massive killing campaigns against Serbs were conducted in
severalCroatiantownsin1991and1992bylocalmilitaryorpolitical
officials. The relationship of the central Croatian government and
these campaigns remains to be determined, but it is already clear
that, at least in some cases, the government was aware of what was
going on but did nothing to stop the killing.” 264(emphasis added)
3.115 This very serious allegation is not supported by any evidence. There
is no credible evidence presented of the alleged numerous executions and dis-
appearances or the massive killing campaign against the Serbs. There is no
evidence that any crimes that may have been committed were not investigated
and prosecuted. There is no evidence that these alleged acts were carried out
by local military and political officials. In addition, Serbia admits that the
“relationship of the central Croatian government and these campaigns
remains to be determined”.
Finally there is no evidence presented to support the allegation that the gov-
ernment was aware of “what was going on but did nothing to stop the kill-
ing.” These allegations, made without credible evidence, are a characteristic
feature of several sections of the Counter-Memorial.
262See inter alia Martić, paras. 122-129.
263Counter-Memorial, para. 538
264Counter-Memorial, para. 540.
Volume 3.indd 89 12/14/2010 2:20:18 PM 90
3.116 Several of the allegations set out in this section claim their support
from unofficial and dubious electronic and other sources. 265 By way of ex-
ample, the Counter-Memorial quotes Hrvatski vjesnik as an example of hate
266
speech and chauvinism directed against the Serbs. This was a marginal
publication with only had 47 issues. It is noteworthy that the Respondent chal-
lenges Croatia’s evidence, including its witness statements, while it relies on
267
obscure and non-probative evidence that lacks any credibility whatsoever.
3.117 In any event, several of Serbia’s allegations in this regard are repeated
in its Counter Claim and are addressed in Chapters 10 and 11 infra.
SECTION IV: THE ROLE OFTHE INTERNATIONALCOMMUNITY
3.118 The Memorial describes the role of the international community fol-
lowing the escalation of fighting in Croatia. This involvement continued until
268
after 1995. That account is essentially unchallenged in the Counter-Memo-
rial.
3.119 The Respondent attempts to argue that the “major hostilities of the
1991 war in Croatia were effectively over by the beginning of December
1991”. It states disingenuously that after a series of unsuccessful cease-fire
agreements, the ceasefire agreement concluded in Sarajevo on 2 January 1992
269
was to be “generally respected” by the parties to the conflict. This is at
odds with the facts on the ground and is contradicted by its later statements
where it refers to continuing conflagrations between the different sides. These
claims are also dealt with in the Chapters that follow.
3.120 As stated in the Memorial, the UN Secretary General appointed
Cyrus Vance as his Special Representative for Yugoslavia. An agreement (the
‘’Vance Plan’’) was adopted in Geneva on 23 November 1991 and a proposal
for the deployment of a UN peacekeeping operation, pursuant to the ‘’Vance
Plan’’, was formally agreed in December 1991, and its role and functions were
set out in a Report of the Secretary General. 270The Report set out how and
where this force was to function and stated categorically that this was ‘’an
interim arrangement’’ to create the conditions for peace required for the ne-
gotiation of an overall settlement to the conflict. From its inception, it was
not intended to prejudice or otherwise affect the outcome of negotiations for a
265See e.g. Counter-Memorial, pp. 185-190.
266Counter-Memorial, p. 186, footnote 476.
267This is discussed generally in Chapter 2, paras. 2.42-45.
268
269Memorial, paras. 2.117-122 et seq.
270Counter-Memorial, para. 560.
Memorial, para. 2.124. See Report of the Secretary-General pursuant to Security Council
resolution 721 (1991), UN doc. S/23280, 11 December 1991, para. 9 et seq and Annex III;
Annex 92. Further changes to the plan were set out in the Further Report of the Secretary-
General pursuant to Security Council resolution 721 (1991), UN doc. S/23592, 15 February
1992, para. 9 et seq.
Volume 3.indd 90 12/14/2010 2:20:18 PM 91
comprehensive settlement of the conflict. 271
3.121 All sides involved in the conflict accepted this plan: the Govern-
ments of the Republic of Croatia and the Republic of Serbia, the JNA, and,
after strong pressure from Belgrade, representatives of the Serb community
272
in Croatia. The Counter-Memorial admits that the “RSK leadership” was
reluctant to accept the plan which envisaged demilitarization of the UNPAs.
It states that Milan Babić was the main opponent of the plan and that the
leadership of Serbia had to invest “enormous political capital” to procure the
consent of the rebel Serbs to the plan. 273This “enormous political capital”
involved Milošević giving the rebel Serbs an ultimatum to remove Babić and
elect new representatives. This was done. As stated in the Counter-Memorial,
the “RSK Assembly removed Babić from the office of President, and accepted
the Vance Plan”. 274 This is yet another demonstration of the effective control
exercised by the Serbian leadership over the rebel Serb authorities. Milošević
was able to dictate to the rebel Serb leadership. 275
(1) T h eiNv o l v e NTo fTh e u NiTe d N aTi oNs: uNpRofoR
3.122 The UN Protection Force (UNPROFOR) was established on 21 Feb-
ruary 1992. It deployed in those areas of Croatia where Serbs constituted the
majority or a substantial minority of the population and where inter-com-
munal tensions had led to armed conflict. These areas were designated as
“United Nations Protected Areas” (UNPAs). The idea was to stop the armed
conflict and to prevent it from spreading further. 276 The UNPAs were to be
demilitarized, with all armed forces withdrawing completely, including the
JNA. Police monitors were to control the activities of local police forces, and
stop discrimination on the basis of ethnicity. Working with UN humanitarian
agencies, UNPROFOR was also to secure the return of refugees and displaced
persons to their homes. The creation of the UNPAs was not intended to preju-
dice or otherwise affect the outcome of any political settlement in the former
SFRY. 277
271 See annex 92, Annex III, para. 1
272 As stated in the Memorial, multi-party elections were due to be held in Bosnia in December
1991.As the crisis in Bosnia deepened President Milošević, wishing to concentrate on that situ-
ation put pressure on the rebel Serbs in Knin to accept the ‘’Plan’’ for this reason. Memorial,
2.125. Borisav Jović reports a ‘’difficult and dramatic’’ meeting on 2 February 1992 attended
by Milošević during which the leadership of the ‘RSK’accepted the Vance Plan, B. Jović, Pos-
lednji dani SFRJ [Last Days of the SFRY].
273 Counter-Memorial, para. 564.
274
275 Counter-Memorial, para. 564.
For an extensive description of Milošević’s ultimatum and removal of Babić see N. Barić,
Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia] (2005), pp. 150-162.
276 Memorial, para. 2.125 et seq and Counter-Memorial, para. 566.
277 Memorial, para. 2.124 et seq.
Volume 3.indd 91 12/14/2010 2:20:18 PM 92
3.123 The UNPAs were divided into four sectors:
1. The South Sector included the hinterland of northern Dalmatia and
eastern Lika;
2. The North Sector included the area of Kordun and Banovina;
3. The East Sector included the area of Eastern Slavonia, Baranja and
Western Sirmium. These three sectors were controlled by the rebel
Serbs at that time.
4. The West Sector that included the western part of Slavonia, was
mainly under the control of the Government of Croatia. A small area
around Okučani was under the control of the rebel Serbs. 278
Under the Vance Plan, the status of the UNPAs would not be changed until an
“an overall political solution of the Yugoslav crisis” was found, an approach
which Croatia was unhappy with.
3.124 In addition to the UNPAs, UNPROFOR’s authority was extended to
the so-called “pink zones”, the term used to describe parts of Croatian terri-
tory outside the UNPAs which remained under rebel Serb control after the
cessation of hostilities in January 1992. In order to avoid the outbreak of fur-
therhostilities,CroatiaagreedtoacceptUNPROFORassistanceinreinstating
Croatian authority over these areas even though these areas were to be handed
back to Croatia unconditionally. In the end the “pink zones” effectively be-
came an integral part of the UNPAs and stayed under the control of the rebel
Serbs. 279
3.125 While the UNPAs were supposed to be demilitarized, this did not
happen. 280Secure under the protection of the UNPROFOR, the rebel Serbs to-
gether with Serbia consolidated the gains of their genocidal campaign, cleans-
ing occupied areas of non-Serbs and destroying non-Serb property (including
cultural and religious monuments) in such a way as to make conditions of life
impossiblefortheCroatandotherpopulations. 281DespiteUNPROFOR’spres-
282
ence, the rebel Serbs continued to expel Croat citizens from the UNPAs.
3.126 Serbia claims that despite considerable progress between the parties
in 1994 in establishing a permanent cease-fire and cooperating in economic
278 The UNPAs are set out in Memorial, Vol. 3, Plate 2.7.
279 Memorial, para. 2.128. See Chapter 10, infra.
280 As described in the Memorial and set out further in Chapter 4, infra, when the JNA
withdrew from Croatia towards the end of May 1992, it left much of its weaponry with the
281b Territorial Defence and police: Memorial, paras. 2.127 and 3.96.
See for example, in Security Council Resolution 757 of 30 May 1992 (which introduced
wide-ranging sanctions against the FRY/Serbia) the Security Council expressed its deep
concern at persistent ceasefire violations, at the continued expulsion of non-Serb civilians
and at the obstruction of and lack of cooperation with UNPROFOR in parts of Croatia.
282 See Report on the persecution faced by Croats and other non-Serbs in the occupied areas,
July 1993, Annex 116.
Volume 3.indd 92 12/14/2010 2:20:18 PM 93
matters, Croatia decided to resolve the problem of the ‘RSK’ by the use of
force.283This is a distortion of the facts. It was Croatia, through inter alia
the implementation of the Economic Agreement, that sought to peacefully
re-integrate the areas under Serb control, but the rebel Serbs lead by their
“President” Milan Martić, obstructed the implementation of the agreement.
Knin advocated the unification of the ‘RSK’ with the Republika Srpska (RS)
of Bosnia and rejected any solution that envisaged the future of the ‘RSK’
within Croatia. These issues are dealt with in Chapters 10 and 11 infra, as are
Serbia’s allegations of genocide allegedly committed by Croatia against the
rebel Serbs during Operation Storm, in August 1995. These allegations are
vehemently denied.
CONCLUSION
3.127 The Respondent’s account of the historical and political events is
incomplete, inaccurate and in numerous places misleading. The preceding
paragraphs, taken together with Serbia’s various admissions, set the record
straight. They establish that in the “undemocratic regime” in Serbia, prior to
October 2000, Serbian nationalism was the “leading political idea.” The Ser-
bian leadership manipulated the Serbs in Croatia by inter alia misusing recol-
lections of the past and through abundant hate speech in the state-controlled
media.
3.128 The Serbian leadership took control over the federal organs of the
SFRY, including the Presidency of the SFRY and the JNA, resulting in the
dissolution of the SFRY. The late 1980s and early 1990s witnessed the rise of
extreme Serbian nationalism, which coincided with Slobodan Milošević’s rise
to power, leading to a situation in which Croatia was essentially presented
with two options by Serbia: (i) it could remain within a federal Yugoslav state
dominated by Serbian interests, or (ii) it could become an independent state
with a sharply reduced territory, with Serbia taking control over large parts of
its territory which had been within Croatia’s borders since at least World War
II. When Croatia’s citizens opted overwhelmingly for independence in May
1991, Serbia embarked on a campaign of territorial acquisition with the object
of establishing Serbian control over parts of the Republic of Croatia.
3.129 This campaign was conducted by the Serbian leadership, which
controlled the JNA and paramilitary groups which were either incorporated
into the structure of the JNA or were under the effective control of Serbia. 284
Through a process of Serbianisation, the JNA emerged as a Serb dominated
army, with an ideological commitment to a Greater Serbia. Serbia admits that
the JNA leadership and the Serbian leadership were “political allies” and that
the JNA, together with paramilitaries co-opted by it, first covertly, and later
openly fought in alliance with the rebel Serbs and pursued the goal of “Great-
283Serbia.”
Counter-Memorial, para. 570.
284 See Chapter 4, infra.
Volume 3.indd 93 12/14/2010 2:20:18 PM 94
3.130 This campaign of “Serbianisation” of Croatian territories was accom-
panied by the commission of genocide against a significant part of the Croa-
tian population of Eastern and Western Slavonia, Banovina, Kordun and Lika
and Dalmatia. It is these acts of genocide which are the subject of Croatia’s
Application. 285
3.131 Influenced by extreme Serbian nationalistic propaganda and hate
campaignemanatingfromBelgrade,politicalrepresentativesoftheSerbcom-
munity in Croatia refused to accept the authority of the Croatian government
and, under the direction, command, and control of the leaders of the Republic
of Serbia rebelled against the Republic of Croatia by inter alia establishing
areas of Serb occupation within the territory of Croatia in order to extend Ser-
bia’s borders with a view to establishing a “Greater Serbia”. Initially this was
through the proclamations of “Serb Autonomous Regions” and finally by the
“establishment” of the ‘RSK’. Serbia admits that the illegal entity, the ‘RSK’,
enjoyed the “political and financial support of the FRY”.
3.132 This situation continued until mid 1995. The existence of the ‘RSK’
in the heart of the sovereign Republic of Croatia was a critical obstacle to the
political and economic development of the country. In the face of over 4 years
of failed negotiations, the intransigence of the rebel Serbs and the inefficiency
of the UN, the Republic of Croatia was compelled to resolve the problem
directly through the use of military force and in 1995 Croatian forces, in two
key Operations - Flash and Storm - regained control over the occupied ter-
286
ritories.
285 See Chapters 5, 6 and 9, infra.
286 See Chapters 10 and 11, infra.
Volume 3.indd 94 12/14/2010 2:20:18 PM 95
CHAPTER 4
THE JNAAND THE PARAMILITARY GROUPS
(1) In t r o d uotn
4.1 This Chapter responds to Chapter VI of the Counter-Memorial, in
which the Respondent seeks to sever the link between the FRY/Serbian au-
thorities and the activities of the JNA and the paramilitary forces involved in
actsofgenocide.Theobjectistodistanceitselffromactsofgenocideinwhich
those forces were involved. In relation to the JNA, the Respondent asserts that
1
the JNA was an army of the SFRY for which it has no responsibility, that it
was a de jure organ of the SFRY and not of the FRY/Serbia. In relation to Serb
and Serbian paramilitary forces, the Respondent asserts that it did not super-
2
vise or direct these paramilitary units.
4.2 The evidence in the Memorial shows that the JNA was directed by the
FRY/Serbian authorities and, acting in concert with Serbian TOs and Serb and
Serbian paramilitary groups, played a decisive role in the military campaign 3
in Croatia and in the commission of genocidal acts there committed. The
Applicant relied on a substantial body of evidence in support of that claim,
including witness testimony, JNA and other military orders and regulations,
extracts from memoirs of those directly involved within the FRY/Serbian po-
litical and military leadership, press articles from the official JNA newspaper
Narodna Armija and elsewhere, and videotapes. The evidence clearly demon-
strates the JNA’s direct involvement in violations of the Convention.
4.3 In this Chapter of the Reply, the following specific issues are ad-
dressed:
1. The transformation of the JNA into a Serbian Army, by
intentional Serbianisation: Serbia claims that structural
changes were not intended to achieve Serbian dominance.
The evidence in this Reply confirms that this claim has no
foundation;
2. Serb/JNA command and control over the TO of the Republic
of Serbia and over the armed forces of the ‘SerbAutonomous
Regions’: The Respondent claims that the JNA and Serbian
1
See Counter-Memorial, para. 604.
2 Other issues raised in Chapter VI include the role of ‘the Serb Army of Krajina’ (‘SVK’)
and the role of forces of the Government of Croatia, which are addressed in Chapters 11 and
12 of this Reply, infra.
3 See, in particular, Memorial: Chapter 3, paras. 3.73-99; Chapters 4 and Chapter 5 generally;
and the summary in Chapter 8, para. 8.16, and the footnotes therein, in particular footnotes
57-59.
Volume 4.indd 95 12/14/2010 2:26:58 PM 96
leadership did not command or control the ‘autonomous’
forces of these regions in Croatia, yet the evidence clearly
demonstrates that from at least July 1991 the JNA supported
rebelSerbsandthattheSerbianleadershipandJNAcontrolled
and directed the actions of the TO and forces of the Serb
autonomous regions;
3. The JNA’s role in the lead-up to the genocidal war: The
Respondent argues that the JNA acted as a neutral buffer
between Croatian forces and rebel Serbs until September
1991. This is contradicted by findings of the ICTY and other
evidence,includingareportreliedonbySerbia,whichclearly
establishes that the JNA acted as ‘Biased Peacekeeper’ from
July 1991, at least;
4. The SFRY Presidency’s lack of control over the JNA: The
RespondentarguesthattheJNAretaineditsfederal,‘Yugoslav’
character during the conflict with Croatia. However, the
lack of control over the JNA by the non-functioning SFRY
Presidencyisconfirmedbyaccountsofdiscussions withinthe
SFRY Presidency in early 1991;
5. The JNA’s engagement in the genocidal conflict: The
Respondent presents the JNA’s role as one that shifted from
‘peacekeeper’ to a defensive role in the face of attacks by
Croatian military forces. In fact, by July 1991, as the Trial
Chamber in Mrkšić et al found, the JNA became ‘actively
involvedinconqueringterritoryandnotmerelyininterposing
itselfbetweenrebellingSerbsandlocalCroatauthorities’.The
Applicant shows that this role included direct participation in
acts of genocide in concert with paramilitaries and supporting
military actions of rebel Serbs in Croatia.
4.4 The Applicant maintains the arguments put forward in the Memorial,
and the absence of a specific rebuttal to particular points made by the
Respondent should not be taken as a concession. In this Reply the Applicant
relies on additional evidence, including : the 2003 Theunens Report; 4 the
2007 Theunens Report; the 2002 ‘Balkan Battlegrounds’Report and various
military orders and other material produced by the military authorities. This
4 See Expert Report of R. Theunens, 16 December 2003, submitted by the Prosecution in
Milošević (‘Theunens Report, 2003’).
5 SeeExpertReportofRTheunens,30June2007,submittedbytheProsecutioninProsecutor
v. Jovica Stanišić and Franko Simatović, IT-03-69 (‘Theunens Report, 2007’).
6 ‘Balkan Battlegrounds: A Military History of the Yugoslav Conflict, 1990-1995’ Volume
I, Central Intelligence Agency, Office of Russian and European Analysis, Washington, DC
20505, May 2002 (“Balkan Battleground’ Report’).
Volume 4.indd 96 12/14/2010 2:26:59 PM 97
evidence shows there are no grounds to question the clear relationship of
control exercised by FRY/Serbia over the JNA, the Serbian TO forces, the
Serb and Serbian paramilitary forces or volunteers, and the rebel Serb forces
in Croatia. Subsequent findings and analysis, in particular by the ICTY, have
strengthened the evidence in support of that crucial relationship.
4.5 The evidence presented in the Memorial, supplemented by this new
evidence, confirms that the JNA directly participated in acts of killing and
other acts of genocide that violated Article II of the Convention, for example
in relation to the killings of Croats at Aljmaš, Ilok, Lovas, Petrova Gora and
Vukovar. At other times, the JNA’s involvement took the form of securing or
blockading the area in which atrocities took place, for example at Orlovnjak,
Joševica and Sotin. Furthermore, Serbia provided support to Serb paramilitary
forces in the form of financing, training, logistical support and provision of
equipment. Much of this support was provided through the JNAand some was
directed through other organs of the FRY/Serbian state, including the Ministry
of the Interior (‘MUP’), the Secret Police and the intelligence ▯services.
4.6 In Chapter VI of the Counter-Memorial, the Respondent places great
reliance on a Report entitled ‘Balkan Battlegrounds: A Military History of
the Yugoslav Conflict, 1990-1995’.’ 8It does so to persuade the Court that the
JNA played a neutral role in the conflict. Yet the Report states that personnel
from the Serbian State Security Department and its Special Operations Unit
“almost certainly helped plan” many of the military operations undertaken by
9
break-away Croatian Serbs in 1991.
4.7 The Respondent seeks to persuade the Court that Serb paramilitaries
operated independently of the authorities of the Republic of FRY/Serbia. It
argues that certain local Serb paramilitary forces operated under the command
10
and control of local Serb authorities. And it denies that Serb paramilitary
groups, including those headed by Vojislav Šešelj and Arkan, acted under the
control of the JNA. 11
4.8 These claims are not supported by the evidence, which confirms the
control exercised by FRY/Serbian authorities over Serb paramilitaries. For
example, an expert report presented to the ICTY in 2003 indicates that Serbia
integrated paramilitary forces involved in the commission of acts of genocide
12
into the JNA itself: see the Order dated 10 December 1991. A 2007 report
7
See Chapters 5 and 6, infra.
8 ‘Balkan Battlegrounds’ Report, Vol.I, p. 90.
9 Ibid..
10 See Counter-Memorial, paras. 610-615 and 622-636.
11 See Counter-Memorial, paras. 641-652.
12 Theunens Report, 2003, p. 20 of Part II, para. 6. The Order stated: “In all zones of combat
operations all units of the JNA and TO, as well as volunteer units agreeing to be placed
under that command and to wear JNA and TO insignia, are to be put under the control of the
most senior JNA officer. All other armed groups are to be regarded as paramilitary and are
Volume 4.indd 97 12/14/2010 2:26:59 PM 98
confirms that Serb paramilitary groups - including Arkan’s Tigers and those
operating under ‘Captain Dragan’ - were ‘controlled’ by the MUP of the
13
Republic of Serbia.
4.9 In Mrkšić et al, the ICTY Trial Chamber found that the JNA was
commanded to establish ‘full control’ within its various zones and that at
all levels, all armed units, whether JNA, TO or volunteers ‘must act under
14
the single command of the JNA.’ The position was confirmed in other JNA
orders. 15In Mrkšić et al, the Trial Chamber found that the typical system
of attack employed by the JNA in Eastern Slavonia included the following
stages: building up military presence around a Croatian village; shelling for
several days; issuing ultimata to the villagers, followed by the entry of Serb
16
paramilitaries.
4.10 The pro-Serb role of the JNAas early asAugust 1991 is confirmed by
the Trial Chamber in Martić:
“166. On 26 August 1991, the Croat village of Kijevo, situated
15 kilometres east of Knin, was attacked because the MUP of
Croatia had established an SJB in the village... The decision to
attack Kijevo was taken by Milan Martić in coordination with the
JNA and followed an ultimatum issued by him to the Croatian
SJB [Police Station] …..
167. Units of the JNA9th Corps in Knin, the Milicija Krajine and
the local TO participated in the attack. The evidence establishes
that there was coordination between the JNA and the MUP, and
that the JNAwas in command of the participating forces.”
4.11 As regards the relationship with the Serb paramilitary forces, the
17
Respondent alleges that the Applicant has ‘bundled together’ the different
Serb volunteer units into one group (“Serb paramilitary groups”) without
providing data on the individual groups. The Respondent argues that the
to be disarmed and removed from zones of combat operations.”, 1st Administration of the
General Staff of the SFRY’s Armed Forces, strictly confidential No. 2256-2, 10 December
1991, Directive.
13 Theunens Report, 2007, pp. 6-7, paras. 9-10; and see Part 1: Section Three, Part 5 of the
Report, pp. 89-104. See also the Except of Transcript from “The Unit”, Serbian Television
Documentary (B92 Network), Annex 114.
14
15 Mrkšić et al, para. 101.
Under a similar Order from Major-General Špire Niković, dated 19 October 1991, TO units
that were part of the Zone Staff of TO (ZnŠTO) Banija and Kordun, i.e., of District Staffs of
TO (OpŠTO) Dvor na Uni, Kostajnica, Petrinja, Sisak, Glina, Vrginmost and Vojnić, had also
officially been re-subordinated to “JNA units – the 1st Operational Group Command” and in
their subsequent operations were used “as organic constituents of the JNA units in combat
zones where the JNA units are stationed.”
16
17 Mrkšić et al, para. 43.
Counter-Memorial, paras. 572-573, 607-608.
Volume 4.indd 98 12/14/2010 2:26:59 PM 99
Applicant tries in this way to link all the paramilitary groups with the JNA,
without providing evidence.
4.12 This is wrong and distorts the Applicant’s case. The Applicant
acknowledges that there were a range of different paramilitary forces and
‘volunteer’ units operating in Croatia during the time of the genocidal
campaign. At paragraphs 3.47-49 of the Memorial, for example, reference is
made to the estimation by Croatian intelligence sources that there were 32
such groups operating in Croatia in the period 1990-97. The Memorial refers
totheclassificationofparamilitaryforcesoperatinginCroatiausedintheFinal
Report of the United Nations Commission of Experts established pursuant
18
to Security Council Resolution 780 (1992), identifying four categories of
paramilitary forces: special forces (operating with substantial autonomy under
the command of an identified leader), militias (members of former TO forces),
paramilitary units (operating under the command of a local leader) and police
augmented by armed civilians (operating under local leadership reportedly
under the control of the Ministry of Interior or other political organisations).
4.13 Whereverpossible,intheMemorialtheApplicantidentifiedthespecific
forcesorgroups involvedinviolationsoftheConvention:inDalj,paramilitary
Serb formations from Vojvodina (paragraph 4.32); in Ilok, detachment of the
TO fromTitovo Užice, Serbia (paragraph 4.71); inTovarnik, theWhite Eagles
(paragraphs 4.95 and 4.105); in Lovas, the Dušan Silni (paragraph 4.119),
led by Ljuban Devetak (paragraph 4.123); in Vukovar, Arkan’s tigers, the
Šumadija Squad and the Dušan Silni as well as other volunteer units identified
by town of origin in Serbia (paragraph 4.143), Donji Čaglić, local Serb
paramilitaries (paragraph 5.49), Đulovac, White Eagles (paragraph 5.51),
Petrinja, the police of the SAO Krajina (paragraph 5.95), Kordun and Lika,
local Serb paramilitary police units (paragraph 5.128), Vaganac, Martić’s
paramilitaries (paragraph 5.175). Identification is sometimes difficult because
19
the forces wore JNAuniforms given to them by the JNA. TheApplicant does
not argue nor does it need to in order to establish its claim, that there was only
one Serb paramilitary group operating in Croatia in 1991. It has shown that
Serbian authorities, acting through the JNAand other state organs, and as part
of an overall policy, supported, directed and controlled these various forces,
even to the extent of integrating them into the JNAat certain points in order to
effect its genocidal campaign in Croatia.
4.14 It is notable that in judgments of the ICTY, it has not always been
possible to specifically identify precisely which paramilitary groups were
20
involved in specific atrocities. This has not prevented the Tribunal from
18See Chapter 3 of the Memorial, para. 3.49.
19See for example Memorial, para. 3.56. See also Martić, paras. 245-246.
20 See for example Mrkšić et al, para. 608, in which the Trial Chamber concluded that:
“The evidence demonstrates that the prisoners were murdered by TOs with some paramilitary
support,althoughitisthecasethatoneormoreJNAsoldiersmayhavebeendirectly involved
Volume 4.indd 99 12/14/2010 2:26:59 PM 100
reaching conclusions as to the individual criminal liability of the accu▯sed.
4.15 The use of the phrase ‘Serb paramilitary force or group’ in the
Memorial in no way undermines the Applicant’s case: where the identity of
the group is known, it is stated in the evidence. Further, there is clear evidence
of an overall policy of the FRY/Serbian authorities to use the paramilitary
forces in the genocidal campaign. The Order of 13 September 1991 which
deals with the acceptance of ‘volunteers’ into the JNA was the basis for the
integration of paramilitaries into the army. 21
(2) th et r a n s f o r anto ft h eJna In t oas e r Ia na r m y
4.16 In the Memorial, theApplicant showed that the JNAwas deliberately
transformed by the Serb leadership from a Yugoslav federal army, serving the
22
interest of the SFRY, into a Serb dominated army. The domination of Serbs
and Montenegrins in the ranks of the JNAwas one of the reasons why the JNA
supported the ‘Greater Serbia’policy promoted by the Serb Government. The
Respondent seeks to rebut this evidence, to present the JNA as an organ of
the SFRY that acted at least until September 1991 as a neutral buffer between
Croatia and rebel Serbs and was not engaged in pursuing the political goal of
a Greater Serbia, which formed the political basis of the genocidal camp▯aign.
4.17 In relation to the issue of the ethnic composition of the JNA, the
Respondent asserts that this only started to change in 1991. 24 It presents
data on the relative proportions of Serbs and Croats in the JNA from 1987
to 1990 that differs from the Applicant’s data. Even if the data presented in
the Counter-Memorial was correct, it nevertheless confirms that Serbs were
disproportionately represented in the JNAand Croats under-represented. This
is acknowledged by the Respondent, noting that Serbs constituted 56% of
the JNA Officer corps, but only 36% of the population of the SFRY. The data
to which the Applicant had access in 2000, which gave an overview of the
JNAofficer corps from 1984 onwards, showed that there were 63% of Croats
and 136% of Serbs in relation to the population. The data confirms that the
on their own individual volition.” The Trial Chamber subsequently refers to some specific
paramilitary groups which were involved in the murder of prisoners: para. 613.
21See 3rd Administration of the General Staff of the Armed Forces of the SFRY, Confidential
No. 2391-1, 13 September 1991, Instructions on the Admission of Volunteers into the JNA.
See paras. 4.108-110, infra.
22
23 Memorial, Chapter 3, paras. 3.02-42.
Counter-Memorial, paras. 580-606.
24 Counter-Memorial, para. 579 et seq.
25 See Counter-Memorial, para. 580.
26In relation to which it should be noted that Serbia appears to have relied on archival records
of the JNA which it holds and to which Croatia has had no access; further evidence in itself of
the Serbian state’s control over the JNA.
27 Counter-Memorial, para. 581.
28 Presidency of the SFRY, Strictly Confidential No. 418/7-4, 26 October 1984, Information
of the Federal Secretariat for People’s Defence on Personnel Issues in the JNA.
Volume 4.indd 100 12/14/2010 2:26:59 PM 101
proportion of Serbs in the JNA officer corps was much greater than in the
general population in the period before 1991.
4.18 The Respondent asserts that the ratio between Serb and Croat officers
29
had not altered from that which existed in the period 1987 to 1990. This is
unsustainable.At the beginning of the transformation of the JNA, the number
of Croats at the command level of the military district and the corresponding
command posts of the Military-Naval District and the Air Force and Anti-
Aircraft Defence was high – as many as four. By the end of 1990 only one
Croat held a command post of that level (A. Tus). Moreover, at the lower,
operativelevels(corps,brigade–regiment)andhighertacticallevels(brigades
and regiments), there was no ethnic balance between Serbs and non-Serbs/
Croats. 30
4.19 An example which supports the Applicant’s contention that JNA
officers who supported the idea of a ‘Greater Serbia’ were elevated through
31
the ranks is provided by the promotion of General Života Avramović, a
Serb from southern Serbia, who was appointed commander of the 3 Military rd
District (south-eastern Serbia, Montenegro, Kosovo and Macedonia). In early
th
July 1991 he took over the 5 military district. By contrast, the removal of
Admiral B. Grubišić in the summer of 1990 from the post of Commander of
the Military-Naval District can be viewed as the removal from an important
post of anAdmiral who was not trusted by the political and military leadership
in Serbia. Reference can also be made to an admission by the former Minister
of Defence of the SFRY, Admiral Branko Mamula, that Serbs from Serbia
started to occupy the highest command posts in the 1980s. 32 In a 2010
interview,Admiral Mamula stated that participation in the 1941-1945 war was
later rewarded and that the significant influence that the Serbs from Croatia
had in the JNA was due to the fact that they used to be a key segment of
partisan personnel during the 1941-1945 war. In late 1990, not a single Croat
commanded an Army corps in the territory westwards from the Drina River.
The only A brigade commanded by a Croat until July 1991 was stationed in
Ilirska Bistrica.34
4.20 Notwithstanding the Respondent’s assertion that the ethnic structure
of the JNA remained unchanged between the 1980s and 1991, the ethnic 35
composition of the JNA never corresponded to the ethnic composition of the
29 Counter-Memorial, para. 580.
30 See the Letter from the Council for Succession to Military Property to the Ministry of
Justice, 23 November 2010, Annex 108.
31 As set out in para. 3.21 of the Memorial and the references therein.
32
33 B. Mamula, Slučaj Jugoslavija [Yugoslavia Case], p. 153.
Denis Krnić, Mamula: Dubrovnik je trebao biti prijestolnica Crne Gore [Mamula:
Dubrovnik was to be the capital of Montenegro], Slobodna Dalmacija, 10 April 2010, p. 13.
34 See the Letter from the Council for Succession to Military Property to the Ministry of
Justice, 23 November 2010, Annex 108.
35 Counter-Memorial, para. 584.
Volume 4.indd 101 12/14/2010 2:26:59 PM 102
populationoftheSFRY.ThisisadmittedbytheJNA. TheSFRYConstitution
required the ethnic make-up of the commanding personnel to be coordinated
with the representation of the republics and autonomous provinces. This was 37
38
not achieved.
(a) The Restructuring of the JNA to secure Serbianisation
and the pursuit of Serbian political goals
4.21 The Respondent treats the Applicant’s assertions that the 1988
restructuring of the JNAwas ‘a further shift towards the promotion of Serbian
interests’ as mere ‘conjecture’. It asserts that the restructuring was done
pursuant to a decision taken by the SFRY Presidency. 39
4.22 This misrepresents the facts. The 1988 restructuring of the JNA was
40
achieved by avoiding the SFRY Constitution: the changes approved by the
RepublicswerenotthoseimplementedbytheJNA.Whenseekingapprovalfor
the restructuring, the JNA argued that there would be no significant changes
in the existing relations within the defence system. However, a confidential
study on the existing situation and future directions, drafted in 1989, shows
that the JNA did not act in accordance with the proposals presented to the
Republics: it centralised the constitutionally decentralised defence system
to the detriment of the constitutional rights of the Republics. The essence
of the restructuring under the name Jedinstvo (Unity) was to subordinate the
TO to the commands of the JNA. The second important implication of the
restructuring was that, after twenty years, the JNA’s ‘republican’structure was
terminated.
4.23 AlthoughitiscorrectthatthechangesintheJNAwereacceptedwithout
objection from any Republic other than Slovenia, the proposal which the
36
Kadrovi i kadrovska politika [Personnel and Personnel Policy], Internal document, edition
Razvoj oružanih snaga SFRJ 1945-1985 [The Development of the Armed Forces of the SFRY
1945-1985], Belgrade, 1989.
37 Constitution of the Socialist Federal Republic of Yugoslavia, 1974, Article 242.
38 Kadroviikadrovskapolitika,338;PresidencyoftheSFRY,StrictlyConfidentialNo.418/7-4
dated 26 October 1984, Informacija SSNO o kadrovskim pitanjima u JNA [Information of the
Federal Secretariat for People’s Defence on the Personnel Issues in the JNA].
39 See Counter-Memorial, paras. 585-587.
40 As discussed in Chapter 3 of the Memorial, paras. 3.02-42.
41 Savjet za narodnu obranu Predsjedništva SFRJ [People’s Defence Council of the
Presidency of the SFRY], DT br. 274-2 od 21. listopada 1986 [State secret No. 274-2, 21
October 1986], Informacija o predlogu modernizacije sistema rukovođenja i komandovanja
oružanim snagama SFRJ [Information on the Proposal to Modernise the System of Managing
and Commanding the Armed Forces of the SFRY].
42 Komanda 5. VO [Command of the 5th Military District], Strictly Confidential No. 29-
2/1989; I uprava GŠ OS SFRJ [I. Directorate of the General Staff of the Armed Forces of the
SFRY], Strictly confidential No. 532-1, 14 March 1989, Dogradnja i razvoj rukovođenja i
komandovanjauoružanimsnagama[FurtherDevelopmentoftheManagementandCommand
System in the Armed Forces]
43 Counter-Memorial, para. 586. See Predsjedništvo Socijalističke Republike Hrvatske
Volume 4.indd 102 12/14/2010 2:26:59 PM 103
Republics approved differed from the changes actually implemented within
theJNA.TheSloveneshadcertainobjectionsbecausetheycametounderstand
the JNA’s true intentions in time. Even Montenegro had certain objections. 44
This is explained by the fact that the JNA guaranteed that the restructuring
of the armed forces would not infringe the rights of the Republics to the TO,
whereas in the final stages of the crisis it became evident that the opposite was
the case so far as Croatia was concerned.
4.24 The JNA controlled the Croatian TO, as was evident during 1990-
1991 when the General Commander of the TO, Lieutenant-General Zdravko
Novoselić, faithfully executed the orders of Generals Kadijević and Adžić
received from Belgrade.
4.25 The Respondent refers to the view presented in the ‘Balkan
Battlegrounds’ Report, that the JNA acted as a force for integration in
Yugoslavia. 45ThesuggestionthattheJNAwasanintegrativefactoristrueonly
with respect to the period before the JNA’s adoption of the Unity structure.
However, from that point onwards, the JNA sided with Serbia and served its
interests. The Report is not an official document.
4.26 The true role played by the JNA is conceded to some extent in the
report, which states that in the summer of 1991 the JNA was “acting in the
46
name ofYugoslavia but irresistibly biased towards Serbia.” The report refers
to the JNA as ‘biased peacekeepers’. It notes that “even when the JNA was
clearly hewing to its mandate of restoring peace and acting as a buffer, after
Serb forces had captured an area from the Croatians, the JNA’s intervention to
halt the fighting usually left the Serb forces occupying their objectives… .” 47
4.27 As discussed below, theApplicant does not accept the portrayal of the
JNA’s role as a ‘peace-keeper’, but it is significant that even this document, on
which the Respondent places reliance, does not support the contention that the
JNA played a non-partisan peace-keeping role. In this regard, Jović testifies
extensively to the rapprochement between the JNAand Serbia. 48
(b) The Senior Command of the JNA in the Build Up to Genocide
4.28 The Respondent contends that the Applicant’s arguments about
[Presidency of the Socialist Republic of Croatia], No. DT [State Secret]-19/1-86, 21 November
4486.
Admiral Mamula wrote about this in his memoirs: B. Mamula, Slučaj Jugoslavija
[Yugoslavia Case], Podgorica, 2000, pp. 64-65.
45 See Counter-Memorial, para. 587.
46 ‘Balkan Battlegrounds’ Report, Vol.I, p. 90.
47 Ibid., pp. 91- 92.
48 B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], see pp. 45, 68, 139-143, 176, and,
in relation to meetings of the “Group of Six“, see pp. 371, 382-383, 385-387, 391-392, 394 and
402-403.
Volume 4.indd 103 12/14/2010 2:26:59 PM 104
the “Serbianisation” of the JNA’s commanding personnel in June 1991 are
unfounded, on the basis that some ‘top positions’ were held by non-Serbs in
49
early 1991. The Counter-Memorial cites the examples of Veljko Kadijević,
Stane Brovet,Anton Tus, and Zvonko Jurjević.According to the Respondent,
General Kadijević, for example, should not be referred to as a ‘Serbian’
general.
4.29 The Respondent’s argument that the senior ranks of the JNA were
ethnically balanced 50 is wholly unpersuasive. In 1989 the Croat commanders
st th
of the 1 and the 5 military districts retired, to be replaced by Aleksandar
Spirkovski, a Macedonian, (the 1 military district) and Konrad Kolšek, a
Slovene, (the 5 thmilitary district). Both are mentioned in Annex 30 of the
Counter-Memorial. Kolšek was replaced in early July 1991 and Spirkovski
in late September or early October 1991, purportedly on the basis of poor
performance. Yet they faithfully executed everything that General Kadijević
demanded of them.
(c) Further Evidence of Serbianisation of the JNA
4.30 In response to the Respondent’s assertions about the Applicant’s
‘misleading interpretation’ of events leading up the war, it is necessary to
highlight some instances where the JNA’s orientation towards Greater Serbian
political goals is plainly in evidence.
JNAAquiescence to Changes to the Serbian Constitution
4.31 In contrast to the position it took in relation to changes to the
constitutions of other republics, including Croatia, the JNAdid not react to the
changes to the Serb Constitution in September 1990.The Serbian Constitution
usurped three basic competences of the federation: external relations, people’s
defence and state security and, most importantly, contained a provision that
52
Serbia would respect federal laws only when that served its interests. The
Constitution provided for the President of the Republic to discharge the duty
53
of Supreme Commander in peace and war. This silence continued following
the enactment of the Law on Defence of the Republic of Serbia in July 1991,
which authorised the President of the Republic of Serbia to “manage the
54
armed forces in war and peace”, including the TO. The JNA’s bias towards
49 Counter-Memorial, para. 582.
50 Ibid..
51 Counter-Memorial, paras. 588-605.
52 S. Popović, “How we defended Yugoslavia, Milošević vs Yugoslavia”, Helsinki Committee
for Human Rights in Serbia, Belgrade, 2004, pp. 26-27.
S. Popović, Kako smo branili Jugoslaviju [How We Defended Yugoslavia], pp. 26-27.
53 B. Mamula, Slučaj Jugoslavija [Yugoslavia Case], p 178; Slobodan Inić, Predsjednička
54emoć [Presidential Omnipotence], Borba, 23 August 1990, p. 2.
Ukaz o proglašenju zakona o odbrani, [Decree on Promulgation of the Law on Defence],
Volume 4.indd 104 12/14/2010 2:26:59 PM 105
Serbia is also evident from its conduct towards its supreme commander, the
Presidency of the SFRY, even before the elections in Slovenia and Croatia.
From mid-November 1989, Kadijević was a permanent guest of the Serbian
member of the SFRY Presidency, he presented him with detailed analyses of
the JNAsince he did not want, as testified by B. Jović, “to present them to the
55
entire Presidency for understandable reasons”.
The JNA’sActions During 1990
4.32 In its attempt to present the JNA as a neutral force, at least until
September 1991, the Respondent alleges that the JNA’s actions in 1990 were
supported by the entire Yugoslav Presidency, including the decision to place
all material of the TO under control of the JNA.
4.33 This assertion is directly contradicted by the diary of Borisav Jović,
the Serbian member of the Yugoslav Presidency. On 17 May 1990 (13 days
beforetheHDZassumedpowerinCroatia),hewrotethatmeasuresweretaken
for the JNA to remove weapons from the TO in Slovenia and Croatia against
the wishes of the two republics:
“We are taking measures to take the weapons from the civilian
depots of the TO in Slovenia and Croatia and to transfer them
into the military depots. We shall not allow that they misuse the
weaponsoftheTOinpotentialconflictsorforsecessionbyforce.
We have virtually disarmed them. Formally, this has been done
by the Chief of the General Staff but actually this has been done
on our order. The Slovenians and Croats responded strongly but
they have no alternative.” 57
4.34 In September 1990, Croatia sought material from the JNA to equip
its police force. The JNA did not reject Croatia’s request, but declared that
the amount of material that Croatia sought could not be delivered before the
58
end of 1991. This was a puzzling response to a relatively moderate request
given Yugoslavia’s position as a major world arms exporter. 59The JNA aimed
to put off resolution of the issue of the supply of weapons until late 1991,
because the JNA and Serbia hoped it would solve the “problem” of Croatia
Službeni glasnik Republike Srbije [Official Gazette of the Republic of Serbia], Belgrade, 27
July 1991, p. 1.
55 B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], Belgrade, 1996, p. 68.
56 See Counter-Memorial, para. 589.
57 B. Jović, Poslednji dani SFRJ, [Last Days of the SFRY], Belgrade, 1996, p. 146.
58 Ugovor možete odmah zaključiti [You Can Conclude the Contract Right Away], Narodna
59mija, 26 January 1991, p. 14.
Confirmation that the SFRY, i.e., the JNA was a major exporter of weapons and military
equipment is provided in the book by Aleksandar Stamatović, Vojna privreda druge
Jugoslavije 1945-1991 [Military Economy of Second Yugoslavia 1945-1991], Belgrade, 2001,
pp. 72, 120.
Volume 4.indd 105 12/14/2010 2:26:59 PM 106
during 1990, or at least by May 1991, when B. Jović would be President of the
Presidency of the SFRY. Jović wrote inAugust 1990 that while on holiday he
had talked to Kadijević and Milošević and their estimate had been:
“The Yugoslav political crisis needs to be resolved while I (B. Jović)
am at the head of the Presidency of the SFRY.After this, we would be
completely helpless. For this reason, we need to make moves in that
direction”. 60
4.35 AnticipatingthepossibilityofacommunistelectoraldefeatinCroatia,
the JNAtook preparatory measures. This began in 1990 with the second stage
of the Unity plan to be implemented from 1991. Based on the plan Jedinstvo-2
(Unity-2) and the JNA intervention in the anticipated political crisis, a new
61
plan Jedinstvo-3 (Unity-3) was adopted on 26 February 1990. This would
phase out or degrade parts of the units. According to the plans, obsolete
arms and equipment should have been withdrawn by mid July 1991, so as to
procure new equipment and armament. In the second half of February 1990,
the commands of the military districts were familiarised with the Unity-3 plan.
At the time, it was claimed that the plan was being adopted because of the risk
that Hungary, following the break-up of the Warsaw Pact, would link itself to
64
NATO. This threat was used to justify the development of the armed forces.
4.36 The credibility of this explanation was short-lived. In a speech
delivered on 13 March 1990, before a group of the highest-ranking JNA
officials, Kadijević admitted there was no possibility of external aggression
65
against Yugoslavia. Aday later, on 14 March 1990, the Chief of the General
Staff of the Armed Forces, General Adžić, signed an order stipulating that,
in the course of implementing the Unity-2 and Unity-3 plans, priority should
be given to restructuring units in “sensitive regions”. At a session of the
Military Council of the Federal Secretariat for People’s Defence held on 27
April 1990, it was decided that JNA units should be classified on the basis
60 B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], pp. 175-176.
61 I. Directorate of the General Staff of the Armed Forces of the SFRY, State Secret NO. 1487-
135/89, 26 February 1990, Order. In the well-known interview to the Zagreb weekly Danas,
Kadijević said that the Army was trying to realise its plans for its five-year downsizing by
the end of 1990. Miroslav Lazanski, Jugoslavija neće biti Libanon [Yugoslavia Will Not Be
Lebanon], Danas, 4 December 1990, p. 12.
62 I. Directorate of the General Staff of the Armed Forces of the SFRY, State Secret No. 11-1,
17 April 1990, Working Material.
63 Command of the 5th Military District, Confidential No. 38/87-24, 26 April 1990, Order
64nfidential No. 392-1 of the Federal Secretary for People’s Defence.
I. Directorate of the General Staff of the Armed Forces of the SFRY, State Secret No. 1487-
136/89, 26 February 1990, Starting Point For Further Development of the JNA.
65 Speech by the Federal Secretary for People’s Defence, General of the Army, Veljko
Kadijević at a meeting with the most responsible commanding personnel of the JNA on 13
March 1990.
66
I. Directorate of the General Staff of the Armed Forces of the SFRY, Strictly Confidential
No. 527-, 14 March 1990, Order.
Volume 4.indd 106 12/14/2010 2:26:59 PM 107
of the paramount need to be ready for combat in crisis situations within the
67
country.
4.37 This decision made the new policy official for the first time although
the entire Unity plan was predicated on the need to deal with emergencies in
the country: “sensitive regions” meant in fact the areas of Zagreb and Knin.
The changes in the structure of the JNA in that period were crucial to the
transformation of the JNAinto a Serbian army, to pursue the aims of a Greater
68 69
Serbia. This is confirmed by the testimony of senior JNA officers. Colonel
Vaso Predojević, a high-ranking officer from the Command of the 5th Military
District. Colonel Vaso Predojević is a Serb from Bosnia and Herzegovina
who gives first-hand testimony about General Kolšek’s absolute obedience to
Kadijević and Adžić’s orders. As soon as Kolšek showed that he could not,
or would not, work on Kadijević’s orders, Kadijević illegally removed him.
4.38 The ‘Balkans Battleground’Report on which the Respondent relies in
order to demonstrate the supposedly impartial role played by the JNA in the
conflict notes that:
“The Army became increasingly Serbianized after the eruption
of the Slovenian Ten-Day War as conscripts began deserting
and the other republics refused to send their biannual intakes of
71
conscripts to the JNA.”
(3) se r /Jnac o m m a ndn dc o n t r olv e rt haer m e f o r c o ft h e
s e r a u t o n o m r e gIo n s
4.39 The Respondent seeks to sever the link of command and control
between FRY/Serbia and the armed forces of the ‘autonomous Serb regions’
to avoid the attribution of responsibility of genocidal acts committed by those
forcestoFRY/Serbia.TheRespondentallegesthattheTOandMUPunitsinthe
‘Serb autonomous regions’ in Croatia were “under the command and control
of the local Serb authorities, or the regional authorities...” and could only be
67 Command of the 5th Military District, Personal Office of the Commander, Strictly
Confidential No. 2/55-50 dated 18 May 1990, Conclusions and Tasks.
68
69 D. Marijan, Slom Titove Armije [The Collapse of Tito’s Army], pp. 156-164.
Konrad Kolšek, Spomini na začetek oboroženoga spopada v Jugoslaviji 1991, Obzorja,
Maribor, 2001. A supplemented Serbian edition of the book was published four years later
under the title Prvi pucnji u SFRJ: Sećanja na početak oružanih sukoba [The First Shots in the
SFRY: Reminiscences of the Beginning of the Armed Conflict], Dan Graf, Belgrade, 2005.
70
Vaso Predojević, U procjepu [In the Cleft Stick], Dan Graf, Belgrade, 1997; Slobodan
Maksimović, Petrinjski dani teku [Petrinja Days are Passing], Radnička štampa, Belgrade,
2000.
71 ‘Balkan Battlegrounds: A Military History of the Yugoslav Conflict, 1990-1995’
Volume I, Central Intelligence Agency, Office of Russian and European Analysis,
Washington, DC 20505, May 2002, p. 93.
Volume 4.indd 107 12/14/2010 2:27:00 PM 108
72
subordinated to the JNA“on the basis of a decision of the local authorities”.
The Respondent seeks to present the ‘RSK’ and other rebel Serb forces as
legitimate armed forces established by legitimate autonomous authorities. 73
The illegal nature of the ‘RSK’and its dependence on the government of FRY/
Serbia was addressed in Chapter 3. 74
4.40 SincethedraftingoftheMemorialmoreover,theICTYTrialChamber
in Martić has held that:
“142. The SFRY Federal Secretariat of National Defence of the
JNA (“SSNO”) made unit and personnel changes within the
SAO Krajina armed forces…There is evidence that beginning
after the summer of 1991, the SAO Krajina TO was subordinate
to the JNA… There is also evidence of operational cooperation
between the JNA and the armed forces of the SAO Krajina.
Any resubordination of MUP units to the JNA for temporary
assignment required prior approval of the Minister of Interior of
the SAO Krajina… When resubordinated, the MUP unit would
be under the command of the JNA unit commander. However,
if the MUP unit was merely acting in cooperation or concert
with the JNA unit, it would remain under the command of the
MUP commander… After the completion of a mission where
it had been resubordinated, the MUP unit would return into the
structure of the MUP… For the purpose of combat operations,
TO units could also be resubordinated to JNA units… When
resubordinating, the largest unit of either the TO or the JNA
would command, which would normally be the JNA unit in a
given area. Such resubordination of TO units would be carried
out by the JNA.”
4.41 The ICTY in Mrkšić et al confirmed that, consistent with the SFRY
constitutional arrangements, there was unity of command over the TO units
and the JNA and that, during the conflict in 1991, the TO units from Serbia
(and paramilitaries) were operating under the command and control of the
JNA. The Trial Chamber noted in Mrkšić et al that: “Pursuant to the Law
on All People’s Defence, the [TO] was one of the two constituent elements
75
of the armed forces of the former Yugoslavia, the other being the JNA”.
The Trial Chamber noted that the Law on All Peoples’ Defence allowed for
the possibility in time of war or other emergencies for the armed forces to
76
be reinforced by volunteers. The Tribunal noted that volunteers were often
72
73 Counter-Memorial, para. 615.
Counter-Memorial, paras. 610-614 and 616.
74 Chapter 3, paras. 3.76-80
75 Mrkšić et al, para. 83.
76 The relationship between the JNA and the TO was governed by the 1974 Constitution of
the SFRY; the Law on All People’s Defence from 1982 and two documents: the 1983 Strategy
Volume 4.indd 108 12/14/2010 2:27:00 PM 109
referred to as ‘paramilitaries’ and states that it will use that term at times in
the judgment. Both the JNA and the TO were subordinated to the Supreme
Defence Council.
4.42 As noted by the Tribunal in Mrkšić et al:
“in situations when JNA and TO forces were engaged in joint
combat operations, these units were subordinated to the officer in
chargeofcarryingouttheoperation.Thisprinciplewasreiterated
at brigade level in rule 108 of the JNA Brigade Rules …issued
by the Federal Secretariat for National Defence in 1984, which
stated that integration of command is achieved “through joint
efforts by the brigade command and commands of the brigade’s
subordinate and other units and staff of the TO operating in
coordination [with] the brigade […].” Rule 108 continued by
making it clear that this integration of command is achieved
“on the basis of unity of command and subordination”. The
principle of unity or singleness of command, therefore, required
that in a zone of operations, in combat action, one commander
was responsible for commanding all military units in that area,
includingTOandvolunteerunits,andthatallsubjectsinthearea,
i.e. all units and their individual members, were subordinated to
the one Commander. This is further reflected at the ba78alion
level in the rules of Battalion Manual… of 1988.”
4.43 In the light of this, the Tribunal was able to conclude that:
“it is clear that, in practice, at least at the time relevant to the
Indictment,theofficersincommandofalljointcombatoperations
wereJNAofficers.Anexampleofhowtheprincipleofsingleness
of command was implemented in practice is the general moral
guidance circular of General Adžić, the Chief of the General
Staff, of 12 October 1991, which in its last paragraph reiterated
that at all levels all armed units, whether JNA, TO or volunteers,
must act under the single command of the JNA. Further, on 15
October 1991 the command of 1 MD issued an order to all units
subordinated to it, including OG South, to establish “full control”
within their respective zones of responsibility. Pursuant to this
order, paramilitary units which refused to submit themselves
under the command of the JNA were to be removed from the
territory.
of the Armed Struggle (military strategy) and the 1987 Strategy of General People’s Defence
77d Social Self-Protection (national security strategy).
78 Mrkšić et al, para. 83.
Ibid., para. 84.
Volume 4.indd 109 12/14/2010 2:27:00 PM 110
The effect of this lawfully established structure was, in the
Chamber’s finding, that in respect of the joint combat operations
fortheliberationorcaptureofVukovar,inthezoneofresponsibility
of OG South, between 8 October 1991 and 24 November 1991
when Mrkšić and his command withdrew from Vukovar, Mrkšić
as the commander of OG South, had the sole command of all
JNA and all TO including volunteer or paramilitary units.
Accordingly, he had de jure authority to issue orders to all JNA,
TO and paramilitary units in the zone of responsibility of OG
79
South in combat operations…” (emphasis added).
4.44 The Trial Chamber stated that the Circular of 12 October 1991 and
the Order of 15 October 1991 confirmed the de facto reality of complete
command and full control by the JNA of all military operations. This reality
80 81
was enforceable. Thus, contrary to the claims of the Respondent, the JNA
had de jure and de facto control over all TO and volunteer or paramilitary
units in the zone of responsibility of OG South. This control derived from
the constitutional arrangements in place in the SFRY and which persisted
into the conflict in Croatia in 1991. Under these arrangements, the JNA and
the TO were two components of the unified armed forces of the SFRY, with
equal rights. Their mutual relationship was elaborated in the 1983 Strategy
of the Armed Struggle. In wartime, there was a potential for overlapping of
authority of commanders of the JNA and TO, so there was a principled view
that a JNA commander would command armed forces on the front, while a
TO commander would command armed forces in the temporarily occupied
82
territory. This arrangement remained in place until the second half of the
1980s and the adoption of the Unity Plan.
(4) th eJna’ s r o l eIn t hle a -u pt og e n o Icd e
4.45 The Applicant’s position is that the JNA played a direct role in the
genocide in Croatia. The Respondent seeks to present the JNA as playing a
neutraland(fromSeptember1991)adefensiverole,initiallyatleastindefence
of the idea of SFRY. The Respondent seeks to undermine the Applicant’s
case by highlighting alleged inconsistencies in the Memorial, as regards the
Applicant’s identification of the point at which the Serbian leadership took
83
over full control of the JNA. The Respondent argues that the Memorial
does not prove that the JNAand the Yugoslav Presidency were de facto under
Serbia’s control.
4.46 On the basis of the evidence presented below, including factual
79
Ibid., paras. 85-86.
80 Ibid., para. 89.
81 Counter-Memorial, para. 622.
82 The 1983 Strategy of the Armed Struggle, [Strategija oružane borbe], pp. 149-150.
83 See Counter-Memorial, paras. 591, 603 and 606.
Volume 4.indd 110 12/14/2010 2:27:00 PM 111
findings made by the ICTY, it is beyond doubt, that by July 1991 the Republic
of Serbia/emergent FRYclearly assumed control over the JNA, which became
de facto its military force. Several months prior to that, a secret armament
of the rebel Serbs by some Serb servicemen of the JNA had also taken place
(discussed infra). This indicates that the process of disintegration within the
JNA, its “porosity” and the definite domination of national standpoints over
a federal ‘Yugoslav’ orientation among the military leadership took place in
stages, culminating in Kadijević’s agreement to act in Serbia’s interests, from
July 1991.
4.47 The difficulty of establishing the actual moment when control
definitively passed from the federal level to Serbia can be explained by the
inherent difficulty of identifying precisely decisions which were generally
covert (in relation to Croatia) and by the fact that there was a period during
which lip-service was paid to federal control by the Presidency. But the reality
is that within the JNA decision-making structure had shifted from the SFRY
Presidency to Serbia. As shown below, the JNA provided support to rebel
Serbs in Croatia even before the clear agreement of the JNA leadership to
follow the direction of the Serbian leadership. Jović’s diary shows that the
alliance between the JNAand the Republic of Serbia started in the summer of
1989. The JNAdid not have this sort of alliance with the other republics (with
the possible exception of Montenegro, which was part of the Serbian project).
This distinction in relationship between the JNA and the various republics
serves to undermine the portrayal of the JNA as inherently ‘Yugoslav’ from
that period onwards.
4.48 Contrary to the assertion of the Respondent, 84 as early asAugust 1990
85
the JNAsupported the rebel Serbs in Croatia. In earlyApril 1991, Milošević
and Jović demanded from Kadijević, and eventually obtained, his promise
that the JNA would protect the Krajina. 86On 5 July 1991, Milošević and
Jović demanded from Kadijević, and secured his promise, that the JNAwould
‘defend’the Serb population of Croatia. From then until the end of 1991 and
the end of Kadijević’s command over the JNA, Serbia was demanding support
from the JNAand getting what it demanded.
4.49 The Respondent fails to mention the detailed chronology of
conspiratorial agreements between Serbia’s political leadership and the JNA’s
leadership in the summer of 1989, outlined in Jović’s diary. 88 Under the
pretence of acting lawfully and fighting for a unified Yugoslavia, they sought
to create a state for all the Serbs. When it was no longer possible for Serbia
and the JNAto impose, through the SFRYPresidency, Serbian interests on the
84 Counter-Memorial, paras. 589-597 et seq.
85 Memorial, paras. 2.90-91.
86 B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], pp. 349-350.
87 Ibid., pp. 349-350.
88 Counter-Memorial, paras. 592-595.
Volume 4.indd 111 12/14/2010 2:27:00 PM 112
other Republics, they set out to redraw the borders of Croatia and, in 1992, of
Bosnia and Herzegovina. There is nothing contentious in describing ‘Greater
Serbia’ as a state which provides for “the protection and defence of the Serb
people outside of Serbia and the gathering of the JNAinside the borders of the
future Yugoslavia”, as Kadijević put it. 89
4.50 Lawfuluseofthearmedforcesrequiredtheagreementoffivemembers
of the Presidency of the SFRY. However this was not always adhered to. In
early May 1991, Kadijević arbitrarily gave combat missions to parts of the
JNA in the form of the engagement of several armoured battalions that were
brought (or were to be brought) to Croatia from Serbia and from Bosnia and
Herzegovina. Kadijević raised the combat readiness of the JNA, ordered
mobilisation of the JNA and TO, relieved commanders of military districts
of their duty and gave combat missions to the JNA and TO. The four votes
of Serbia and the Serbian influenced members in the Presidency of the SFRY
were sufficient to protect him from any sanctions as demanded by members of
the Presidency coming from other republics.
4.51 Since the drafting of the Memorial, a number of other sources have
confirmed that the point at which it became clear that army was pursuing Serb
aims and objectives was around July 1991.
4.52 In the Theunens Report, 2003, it is stated that:
“Fromlatesummer1991onwards,....ordersandinstructionsfrom
what remained of the SFRY Presidency, the Supreme Command
and the Supreme Command Staff indicated that at least de facto
the JNA moved towards ceasing to be the ‘SFRY Army’ and
instead gradually developed into a mainly Serb force, serving
Serbian goals...” 90
4.53 In Mrkšić et al the Trial Chamber found that:
“From July 1991, after the war in Slovenia, the JNA became
actively involved in conquering territory and not merely in
interposing itself between rebelling Serbs and local Croat
authorities as it had been in the early stages of the conflict.”91
4.54 WhilsttheApplicantdoesnotacceptthischaracterisationoftheJNA’s
role as an ‘interposing’one in the earlier stage of the conflict, it is evident from
this finding and the other evidence referred to above, that by July 1991 at least,
the true role of the JNAwas clear.
89 V. Kadijević, “As I See the Disintegration – An Army without a State”, p. 114: Memorial
Annexes, Vol.5, Appendix 4.1.
90
91 See Theunens Report, 2003, para. 8; Theunens Report, 2007, p. 19.
Mrkšić et al, para. 31.
Volume 4.indd 112 12/14/2010 2:27:00 PM 113
4.55 The Trial Chamber in Martić held that:
“The evidence shows that beginning with the armed attack on
the predominantly Croat village of Kijevo in August 1991, the
SAO Krajina MUP and TO forces cooperated with the JNA. As
of this point in time, the JNA was firmly involved on the side
of the SAO Krajina authorities in the struggle to take control of
territory in order to unite predominantly Serb areas…” 92
4.56 The role of the JNA was also clear to the US Government. Before
the start of the session of the SFRY Presidency on 12 July 1991, President
Mesić was handed a letter from the US Ambassador in Belgrade, Warren
Zimmermann:
“My Administration has ordered me to convey to you the
serious concern of the United States ofAmerica over the current
mobilisation of the JNA. Certain aspects of this mobilization are
especially disturbing and might help create the impression in
Washington that a military action in Croatia is being planned.We
are aware of the fact that the JNAhas gathered large forces – two
motorized divisions numbering around 20 thousand people – at
thefringeofEasternSlavonia,inwesternVojvodinaandnorthern
Bosnia. There are reports that the JNAis coordinating operations
inVojvodina with units of the SerbianTO.An action of this kind,
together with the formation of Serb reserve troops, the filling of
vacancies left behind deserters of other nationalities and reports
of replacement of non-Serb officers by Serbs in the 5th (Zagreb)
Military District, point to an increasingly Serb orientation within
the JNA… .” 93
4.57 The ‘Balkan Battlegrounds’Report, on which the Respondent places
such reliance in relation to the JNA’s purported peace-keeping role, notes
that:
“after the war in Slovenia began, the JNA dispatched large
numbers of troops to the border with Easter Slavonia and
elsewhere in Croatia to intimidate Zagreb into backing away
94
from secession…” .
‘Biased Peacekeepers’: the Role of the JNA
92 Martić, para. 443. See also ‘Balkan Battlegrounds’ Report, Vol. II, pp. 90-91.
93 S. Mesić, Kako smo srušili Jugoslaviju [How we destroyed Yugoslavia], Zagreb, 1992, p.
94.
‘Balkan Battlegrounds’ Report, Vol. I, p. 92.
Volume 4.indd 113 12/14/2010 2:27:00 PM 114
4.58 As discussed above, the Respondent seeks to rely on the ‘Balkan
Battlegrounds’Report which, it claims, asserts that in the summer of 1991 the
96
JNAacted as a “neutral peace-keeper” between Croats and Serbs. According
to the Respondent, the Report states that, although the Croats kept attacking
the JNA during the summer of 1991, the JNA tried “conscientiously” to
remain an unbiased federal force in Croatia97This reliance on the Report is
misplaced for the reasons set out above. The Report also states that the JNA
was “irresistibly biased toward Serb interests” and that some commanders
even provided weapons to Serb Croatian forces. It is difficult to see how the
Respondent can maintain its position that the JNA played a genuinely neutral
peace-keeping role when the very report it relies upon in support of this
contention itself highlights the pro-Serb bias of JNAoperations at this time.
4.59 The ICTYTrial Chamber in Martić found that:
“330. … At the end of the summer 1991 and coinciding with
the attack on Kijevo, the JNA became an active participant in
Croatia on the side of the SAO Krajina. According to the SFRY
FederalSecretaryforDefence,GeneralVeljkoKadijević,thetask
of the JNA became one of protecting “the Serb people in Croatia
in such a way that all regions with a majority Serb population
would be completely freed from the presence of the Croatian
army and the Croatian authorities”. Veljko Kadijević also noted
that among “the principal ideas” behind the deployment of the
JNA during the second phase was “full co-ordination with Serb
insurgents in the Serbian Krajina”.
331.On3October1991,VeljkoKadijevićstatedthattheobjective
of the JNAin the conflict was “to restore control in crisis areas, to
protecttheSerbianpopulationfrompersecutionandannihilation”.
On12October1991,GeneralBlagojeAdžić,ChiefoftheGeneral
Staff of the JNA, stated that the main task of the JNA was to
prevent “the spread of interethnic conflicts and the recurrence of
genocide against the Serbian people in Croatia.” On 25 October
1991, at a meeting of, among others, Slobodan Milošević, Veljko
Kadijević and Blagoje Adžić, Slobodan Milošević stated that
“we have helped [the Serbs in Croatia] abundantly and [we] will
continue to do so until the end.” (emphasis added)
This finding by the ICTY confirms the non-neutral role of the JNA from the
summer of 1991.
4.60 In the spring and summer of 1991 the JNA purportedly acted in
95 See para. 4.6, supra.
96 Counter-Memorial, para. 597.
97 See paras. 4.6 and 4.25, supra.
Volume 4.indd 114 12/14/2010 2:27:00 PM 115
conformity with the guidelines on the use of the armed forces in extraordinary
circumstances. According to secret internal documents, a state of emergency
was understood as an armed or other activity immediately jeopardising the
independence of the SFRY, its sovereignty and territorial integrity and the
99
constitutionallydefinedsocialorder. Theplantobeadoptedinsuchacasewas
as follows: first, the police would act, followed by the TO and finally, should
thisnotresolvethesituation,theJNAwouldbeengaged.Thecodeforthistype
th
of action was “Radan” and one such plan of action adopted by the 9 Corps
of the JNAfrom Knin in earlyApril 1991 was included in the Memorial. 100In
Croatia however, the JNA did not act in line with the guidelines set out in the
strictly confidential 1988 Manual for the Work of Commands, Headquarters
and Units of the Armed Force of the SFRY in Extraordinary Circumstances.
When the Serb rebellion in Croatia broke out, the JNA purported to separate
“the warring sides”. In conclusion on this point, the Applicant would argue
101
that in the light of the evidence presented in the Memorial and in this Reply,
it is clear that from August 1990, the JNA in Croatia made impossible the
restoration of peace and order in the regions.
4.61 The Respondent denies that the JNA withdrew from Slovenia in line
102
with the idea of creating a Greater Serbia and argues that the JNA was
merely acting upon the Decision of the Presidency of the SFRY made on 18
July 1991, when the majority of its members were in favour of withdrawal. In
fact, this decision violated the Constitution of the SFRY, the General People’s
Defence Law, the Conscription Law and the Law on the Service in theArmed
103
Forces. This decision was a result of actions of the political leadership of
Serbia, as testified by Jović in his diary entry for 5 July 1991. 104Compliance
with this order indicates that (1) the Presidency of the SFRY was a tool of
Serbian interests, and (2) that the JNAobeyed those orders that suited it.
4.62 The Respondent claims that the JNA’s military preparations for the
attack on Croatia, made in and around Croatia during the summer of 1991,
were prudent because the JNA was “subjected to constant harassment and
98
See Strategija općenarodne obrane i društvene samozaštite SFRJ [Strategy of General
People’s Defence and Social Self-Protection of the SFRY]; and Priručnik za rad komandi,
štabova i jedinica oružanih snaga SFRJ u vanrednim prilikama [Manual for the Work of
Commands, Headquarters and Units of the Armed Force of the SFRY in Extraordinary
Circumstances], Strictly Confidential, General Staff of the Armed Forces of the SFRY, 1988,
99nex 48.
StrategijaopćenarodneobraneidruštvenesamozaštiteSFRJ[StrategyofGeneralPeople’s
Defence and Social Self-Protection of the SFRY], p. 133.
100 Command of the 9th Corps, DT. 1-4, 5 April 1991, Order for Defence, Operations No. 1,
Memorial, Annexes, Vol. 2(III), annex 401.
101 See Memorial, paras. 3.24-31, 3.38-39 and 3.54 et seq.
102
103 Counter-Memorial, para. 598.
Milovan Buzadžić, Secesija bivših jugoslovenskih republika u svetlosti odluka ustavnog
suda Jugoslavije: Zbirka dokumenata s uvodnom raspravom [Secession of the Former
Yugoslav Republics in the Light of the Decisions by the Constitutional Court of Yugoslavia:
A Collection of Documents with the Introductory Discussion], Službeni list SFRJ; Belgrade,
1994, pp. 236-237.
104 B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], pp. 349-350.
Volume 4.indd 115 12/14/2010 2:27:00 PM 116
attacks” in Croatia. 105The Respondent claims that on 5 July 1991, Milošević
and Jović demanded that Kadijević concentrate forces within 2-3 days along
the line running from Karlovac to Plitvice in the west, from Baranja, Osijek
and Vinkovci to the Sava in the east, and along the Neretva in the south, thus
gaining control over all the territory where Serbs lived. Kadijević agreed to
106
the request, and ordered his subordinates to carry out the task. On 8 July
1991, the Command of the 1 Military District ordered the implementation of
its partof the task.Theplanprovidedfor theemergenceof severalmechanised
brigades onto the Virovitica – Pakrac – Kutina axis, which roughly coincided
107
with the border implied by Serbia’s territorial aspirations against Croatia.
In view of the fact that at that time parts of the TO in Serbia were being
mobilised, there are grounds to assume that they too had their plan of action
in the aggression against Croatia. 108 The Order of 8 July 1991 was not carried
out, presumably out of fear that it would provoke international condemnation.
At the end of July, the military leadership drew up a directive specifying the
tasks of each military district in the future conflict. 109According to this plan, a
general offensive on Croatia was launched in the latter half of September.
4.63 From the beginning of July 1991 to the beginning of September 1991,
the Command of the Croatian National Guard issued a number of orders to
avoid fighting between its forces and the JNA. Fighting was tolerated only in
cases when the JNAattacked first, which it regularly did. 110The TO of Serbia
and the part of Bosnia and Herzegovina with a majority Serb population was
mobilised from the end of June 1991.
105 Counter-Memorial, para. 599.
106 B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], p. 349.
107 Command of the 1 Military District, Order for the Engagement of Forces of the 1 st
108itary District in Slavonia, 8 July 1991, Annex 50.
Petar Bošković, Izdaja nam otvorila oči [Treason Opened Our Eyes], Narodna armija
[People’s Army], 13 July 1991, pp. 20-21.
109 1 Administration of the General Staff of the Armed Forces of the SFRY, DT No. 53-1,
25 July 1991, Directive for the Enforcement of the SFRY Presidency’s Decision on the
JNA’s Withdrawal From the Territory of the Republic of Slovenia. The text of the Directive
demonstrates once again how ambiguous the JNA’s jargon was and how questionable the
interpretation of the SFRY Presidency’s illegal decision on the JNA’s withdrawal from
Slovenia was. It cannot be concluded from the SFRY Presidency’s decision itself and its
appeal for peace that the JNA was given permission to withdraw with weapons from Slovenia,
110necessary.
Command of the Croatian National Guard, Class: 8-01/91-01/01, Reg. No. 512-03-91-1 of
7 July 1991, Order (issued to the forces in Osijek); Command of the Croatian National Guard,
Class: 8/91-01/01, Reg. No. 512-03-91-2 of 11 July 1991, Order (a circular to all the forces);
Command of the Croatian National Guard, Class: 119-01/91-01, Reg. No. 512-03-91 of 24
July 1991, Order (for Dalmatia); Command of the Croatian National Guard, Class: 8/91-01/03,
Reg. No. 512-91-03-1 of 5 August 1991, Order (issued to the forces in Dalmatia); Command
of the Croatian National Guard, Class: 801-01/91-01/08, Reg. No. 5120-03-91-1 of 30 August
1991, Order (a circular to the majority of formations); Command of the Croatian National
Guard, Class: 8/91-01/17, Reg. No. 512-03-91-1 of 3 September 1991, Order (a circular to all
the formations).
Volume 4.indd 116 12/14/2010 2:27:00 PM 117
4.64 It is clear that Slobodan Milošević in his role as supreme commander
of Serbia’s armed forces directed this mobilisation. The Applicant does not
have access to his order for mobilization but his appointment as supreme
commander was, by itself, in violation of the SFRY Constitution. From mid-
May 1991 to 7–8 July 1991 the SFRY Presidency did not hold any meetings.
Therefore, mobilization could be ordered only by someone who requested
that the JNA be deployed along the borders to which Serbia laid claim and
within which large parts of Croatia were included. This was what Jović and
Milošević requested from Kadijević on 5 July 1991.At that meeting Kadijević
asked them to assist with the mobilization and to mobilize the TO. 111
(5) t h esfry p r eId e n ’s la c ko fc o n t r olv e rt hJna
4.65 The Applicant’s position is that the SFRY Presidency ceased to have
controlovertheJNAinoraroundJuly1991:fromthentheJNAwascontrolled
by the Serbian leadership, implementing Serbia’s genocidal plan to create a
Greater Serbia. 112The Respondent seeks to present the JNAin quite a different
light, arguing that the JNA was a de jure organ of the SFRY and under the
political control of the Presidency of the SFRY. 113 Both issues are addressed
in the Memorial. 114
4.66 The Respondent presents the JNAas retaining its Federal, ‘Yugoslav’
115
character during the conflict with Croatia. However the lack of control over
the JNA by the non-functioning SFRY Presidency is evidenced by accounts
of discussions within the SFRY Presidency in early 1991. For example, after
the release of a secretly made film on the arming of the Croatian police in the
second half of January 1991, the Slovenian member of the Presidency, Janez
Drnovšek, raised the issue of the relationship of the JNA and some members
of the Presidency at the Presidency’s session. Drnovšek became aware, on the
basis of a note of a conversation between the President of the Presidency of
the SFRY, Jović, and the US Ambassador Zimmermann on 17 January 1991,
that Jović knew about the film, as did the Presidency. However, it turned out
that at least three members of the Presidency (from Croatia, Slovenia and
Bosnia and Herzegovina) did not know of the film before its release.This gave
ground to the President of the Presidency of Slovenia, Milan Kučan, to ask the
following question: “Who is the Yugoslav Presidency? Are there two sorts of
members of theYugoslav Presidency and what is the relationship between the
Presidency and the JNA?” 116Asimilar question at the same session was asked
111B. Jović, Posljednji dani SFRJ [Last Days of the SFRY], pp. 349-350.
112
113See Memorial, para. 3.33 et seq.
114See Counter-Memorial, para. 604.
In relation to the former, see Memorial, Chapter 8, in particular paras. 8.47-8.55 and in
relation to the latter see Memorial, Chapter 3, in particular, paras. 3.24-3.33, 3.39-3.41 and
3.77.
115See Counter-Memorial, paras. 531-533.
116 Presidency of the SFRY, No. 03-10 dated 3 February 1991, Shorthand Notes of the 93rd
Session of the Presidency of the SFRY held on 31 January 1991, pp. 10-12.
Volume 4.indd 117 12/14/2010 2:27:00 PM 118
by President Tuđman. He asked the Presidency of the SFRY the following:
“WhosepolicyisitthattheArmyisimplementing,isitthePresidency’spolicy
as its supreme commander? It is clear, if that was a decision of the Presidency
as a collective organ, then a representative of Croatia could not take part in
such an organ, since will is imposed on the Croatian people by force, by armed
force.”117
4.67 At the same session, commenting on Jović’s mode of operation,
Tuđman said: “Moreover, Mr Jović, President of the Presidency of the SFRY,
you say “we told you hundreds of times”. Who is we and whom did you tell?
Here is the member of the Presidency from Croatia who does not agree with
you”. 118Representatives of Serbia defended the JNA. Milošević asserted that
the role of the JNAin the preceding period had been crucial for a peaceful and
democratic way of settling the Yugoslav crisis. Jović also denied that the JNA
had the task “of preparing a new constitutional order”. 119
4.68 The Applicant notes that the transcripts of some SFRY Presidency
sessions and some personal diary entries demonstrate the extent to which
Jović was operating in the interests of the Serbian leadership. At the session
of the Presidency of the SFRY held on 21 March 1991, Tuđman told Jović
that he had disregarded the view of the majority and was representing only his
views. 120
4.69 Making his diary entries public, Jović admitted the extent to which he
abused his position as President of the Presidency of the SFRY.This is evident
in this diary entry for 5 April 1991, noting his and Milošević’s conversation
with Kadijević andAdžić:
“WearediscussingthesituationinwhichthePresidencyofSFRY
founditselfnowwhenitnolongerhasthenecessarymajorityand
is not capable of making decisions on the use of the army as an
armed force. All decisions on the use of the army can from now
on be made only if the Army is not commanded to operate. We
canget[a]sufficientnumberofmembersofthePresidencySFRY
solely for that. It is clear that respecting the view that theArmy is
not allowed to use arms would be a disaster for the Serb people
in Croatia, who did not arm themselves since they counted on
the protection of the JNA, while Croatia has been arming its pro-
Ustasha secessionist units…. We are not asking any decisions
from anybody, we are acting as necessary to protect the Serb
people, we are informing the Presidency about the developments.
117
118Ibid., pp. 14, 17.
119Ibid., p. 163.
Ibid., pp. 18-19.
120Presidency of the SFRY, Strictly Confidential No. 75, 22 March 1991, Shorthand Notes of
the 108th Session of the Presidency of the SFRY held on 21 March 1991, pp. 28-29, 48.
Volume 4.indd 118 12/14/2010 2:27:00 PM 119
Whoever does not like it, let him go home. It is stupid for them
too to sit on the Presidency of a state they started a war against.
TheArmy will not attack anyone but it will defend itself and the
Serb people in the Krajina.” 121
4.70 Jović noted also that Kadijević had promised that the army would
execute orders “of a group of members of the Presidency, although they do not
constitute a qualified majority”, in the event that the Presidency was “not able
to perform its functions and to make the decision on defending the country’s
122
integrity”.
4.71 The ‘Balkan Battlegrounds’ Report on which the Respondent relies
notes that, by midsummer 1991, Milošević and Jović were the JNA’s de facto
political overseers in rump Yugoslavia. It goes on to state that Kadijević
123
wavered as to whether or not the aim should be to preserve the Federation.
It is also significant that Kadijević, the then chief-of-staff of the Supreme
Command of the SFRY’s Armed Forces, commended the JNA commanders
wholedtheattacksonVukovar.Amongthosehepraisedwasalsotheconvicted
war criminal Mile Mrkšić. 124
4.72 The evidence discussed above confirms and reinforces the evidence
presentedintheMemorial:byearly1991theSFRYPresidencyhadlostcontrol
over the JNA and the Serbian leadership had entered into a close relationship
with the JNAcommand, by-passing SFRY constitutional requirements.
(6) th e Jna’ s e n g a g e m entt h eg e n od a lc o n fc t
4.73 The Respondent seeks to present the JNA’s role in the war as one
that shifted from ‘peacekeeper’ to a defensive role in the face of attacks by
Croatian military forces. 125This is not supported by the evidence before the
Court.TheApplicant will here outline, in general terms, the role played by the
JNAandtheSerbianTO(togetherwiththeTO’sofMontenegroandofSerbian
areas of Bosnia and Herzegovina) once the conflict was fully underway in July
126
1991. It is clear from the evidence that the JNA took on an expansionist
and aggressive role, and that the Serbian TO played an integral part in the
operation under the direction of the Serb authorities and the JNA.
4.74 By July 1991, as theTrial Chamber in Mrkšić et al found, the JNAhad
121
B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], p 317.
122B. Jović, Poslednji dani SFRJ [Last Days of the SFRY], p 162.
123‘Balkan Battlegrounds Report, Vol. I, p.96.
124See Memorial, Annexes, Vol. 2(I), annex 104 (paragraph 3 of the Order).
125See for example Counter-Memorial, para. 597.
126
Details of specific incidents and acts of genocide in which the JNA was involved, directly
or indirectly are set out in Chapters 5 and 6 of this Reply and Chapters 3, 4 and 5 of the
Memorial.
Volume 4.indd 119 12/14/2010 2:27:01 PM 120
become‘activelyinvolvedinconqueringterritoryandnotmerelyininterposing
127
itself between rebelling Serbs and local Croat authorities’. Building on the
evidence in the Memorial, 128the Applicant will show that this role included
direct participation in acts of genocide and supporting the military actions of
rebel Serbs in Croatia, including through secondment of personnel, training,
financial and logistical support and operational support. Details of the JNA’s
involvement in specific acts of genocide are contained in Chapters 5 and 6 of
this Reply.
4.75 The military support given by the JNA to rebel Serbs in Krajina and
in Western and Eastern Slavonia is to be seen alongside the ongoing support
offered by Serbia through the State Security Service and other state organs. 129
4.76 The JNA treated all military and paramilitary forces that fought for
the interests of Serbia as ‘TO’, including not only the official TO’s of Serbia,
Montenegro and (Serb areas of) Bosnia and Herzegovina, but also the self-
styled ‘TO’ forces of the rebel Serbs and paramilitary forces. Unlike the
Croatian TO, the TO’s of Serbia, Montenegro and (Serb areas of) Bosnia and
Herzegovina were not disarmed by the Serb leadership/JNA; the participation
of the former in Croatia confirms that their arms were restored by the JNA, see
below.
4.77 These Serbian and Montenegrin TO forces were armed and directed
against Croatia. For this to happen lawfully, a decision of the Presidency of
the SFRYwould have been required.Adecision of the rump Presidency of the
SFRY was taken in early October 1990 mobilising the TO forces in readiness
for war. Theunens makes reference to the control exercised by the JNA over
the Serbian TO forces in his Expert Report submitted to the ICTY during the
trial of Slobodan Milošević:
“Documentary evidence indicates that (local) Serb(ian) TO units
andstaffoperatedundersingleunifiedcommandandcontrolwith
the JNA. The JNA established Operational (OG) and Tactical
Groups (TG) to restore and/or maintain unified and single
command and control during the operations, involving the JNA,
130
local Serb TO, Serbian TO and volunteers/paramilitaries.”
(a) The role of the Serbian and Montenegrin TO
4.78 In writing its Memorial, Croatia was not fully aware of the role of the
TO of Serbia and this issue was therefore not addressed in detail. Gradually,
more information on the engagement in Eastern Slavonia of the Serbian
127
Mrkšić et al, para. 101.
128 See in particular Memorial, Chapters 3, 4 and 5.
129Theunens Report, 2007, paras. 9-10; and see pp. 89-104.
130Theunens Report, 2007, p. 7.
Volume 4.indd 120 12/14/2010 2:27:01 PM 121
TO has emerged and findings of the ICTY have enhanced the Applicant’s
understanding of the events. It appears that at least two detachments of theTO
of Serbia (Šumadija and Lepenica), that were engaged in a part of the front
between Vukovar and Vinkovci, were wrongly described in the Memorial as
‘Serbian volunteerunits’. 131 In early July 1991, parts of theTO’s of Serbia and
of Bosnia and Herzegovina were mobilised. In Serbia, such a decision could
not have been made without the agreement of President Milošević. Indicative
in this respect, is a news item published on 3 July 1991 in the daily Politika,
where Milošević was said to have met with commanders of the TO of Serbia
and the headquarters of all zones: “It was stated that the TO of Serbia was
well organised, trained and armed with modern equipment for successful and
132
efficient completion of all tasks”. Following the publication of this article,
JNA forces arrived at the border between Serbia and Croatia, but some units
133
of the TO of Serbia were mobilised as well.
st
4.79 The Directive of the Command of the 1 Military District of 19
September 1991 refers to several units of the TO that were to take part in the
134
aggression against Croatia. According to a Directive of the Command of
the 1 Military District dating 19 September 1991, the TO of Serbia was sent,
again without the approval of the SFRY Presidency as Supreme Commander
of the Armed Forces of the SFRY, to take part in an operation in Slavonia.
Daily reports of the General Staff of the SFRYArmed Forces reveal that some
of these units were indeed deployed, including in the area of Vukovar. 135 The
136
most important overview from this period dates from 16 November 1991.
The overview specified units, their deployment, manpower and subordination
to the JNA commands. There were 9,289 people in 29 different units of the
TO. 137
4.80 Taken together, these documents provide clear evidence of Serbia’s
role, acting both through the JNA and the TO forces, in the genocidal
campaign.
131 Memorial, para. 3.82.
132 Milošević sa komandnim sastavom Teritorijalne odbrane Srbije [Milošević with
133manders of the TO Serbia], Politika, 3 July 1991, p. 1.
Petar Bošković, Izdaja nam otvorila oči [Treason Opened Our Eyes], Narodna armija, 13
July 1991, pp. 20-21.
134 Command of the 1 Military District, Strictly Confidential No. 5-89, 19 September 1991,
Directive of the Commander of the 1 sMilitary District for Operation in Slavonia.
135
For example: According to the Daily Report of 26 September 1991, “on 25 September,
from 17:30 to 17:50 hours, a company (č) of the 1st Novi Sad partbr (Partisan Brigade in
the area of the village of Bršadin was exposed to fierce fire”, Operational Centre of the 1st
Administration of the General Staff of the SFRY Armed Forces, SP no. 1-269, 26 September
1991, Daily Report. The Daily Report of 28 September 1991 also specifies that “on 26/27
September and throughout the day, the Panonnian part. br. (Partisan Brigade) of the TO in
the area of Trpinje – Borovo Selo was exposed to enemy mortar and sniper fire”, Operational
Centre of the 1sAdministration of the General Staff of the SFRY Armed Forces, SP no. 1-271,
28 September 1991, Daily Report.
136 Command of the 1 Military District, Strictly confidential, No. 1614-162, 16 November
1991, Overview of the Composition of Forces.
137 Ibid..
Volume 4.indd 121 12/14/2010 2:27:01 PM 122
4.81 As interpreted by the Serbian lawyer, Srđa Popović, the Constitution
of the Republic of Serbia usurped the competences of the Federation in
138
internationalrelations,people’sdefenceandstatesecurity. UndertheSerbian
Constitution, the President of the Republic of Serbia had the right to “manage
armed forces in war and peace and people’s resistance in war”. 139 Under the
Law on Defence of the Republic of Serbia, adopted in July 1991, the President
of the Republic of Serbia was authorised to “manage armed forces in war and
peace,includingtheauthoritytoresolveorganisationalandpersonnelissuesin
theTO”. 140The term “armed forces” in the Serbian Constitution is not defined,
nor are their functions specified, but the phrase clearly encompasses the TO.
In the 1982 Law on All-People’s Defence of the SFRY, there was a provision
that all armed units and formations outside the JNA and Milicija were parts
141
of the TO. This is consistent with the Law on Defence of the Republic of
Serbia passed in July 1991. 142
4.82 The JNA did not appear to find anything objectionable in those
provisions in Serbian legislation in the period between 1990 and 1991; it made
no adverse public comment about the unconstitutionality of these provisions
under the Constitution of the SFRY, in contrast to its stance on other matters.
4.83 Findings made by the Trial Chamber in Mrkšić et al illustrate the
extent to which TO’s were an integral part of the Serb armed forces during
the conflict with Croatia. The ICTYTrial Chamber described the formation of
Operation Group South as a “temporary formation, set up in order to carry out
a specific task…to unify all military units acting in a geographic zone around
143
and to the south of Vukovar under a single command”. The Trial Chamber
also found that:
“As of 1 October 1991 units subordinate to [Operation Group
South] included the [Guards Motorised Brigade], the TO unit
th
Petrova Gora and the armoured battalion of the 544 Motorised
Brigade of the JNA…” 144
4.84 The Trial Chamber in Mrkšić et al goes on to note that, pursuant to
orders of the Federal Secretary for National Defence, the command of OG
South was subordinated to, and reported one level up to, the command of the
138
Srđa Popović, Kako smo branili Jugoslaviju, Milošević vs Jugoslavija , [How we defended
Yugoslavia, Milošević vs Yugoslavia], Serbian Helsinki Committee for Human Rights,
Belgrade, 2004, pp. 26-27.
139 Constitution of the Republic of Serbia, 1990, Article 83.
140 Serbia, Law on Defence, Službenik glasnik Republike Srbije, Article 5, Belgrade, 27 July
1991.
141SFRY, Law on All- People’s Defence, Article 102.
142
Serbia, Law on Defence, Službeni glasnik Republike Serbije, Article 25, Belgrade, 27 July
1991.
143Mrkšić et al, para. 69.
144 Ibid..
Volume 4.indd 122 12/14/2010 2:27:01 PM 123
1 Military District. The Commander of the 1 Military District was General
Panić, who in return reported up to General Adžić, the Chief of General
Staff, General Kadijević being, in 1991 the Federal Secretary of National
Defence. 145
(b) Relationship between the JNA and the armed forces in Rebel Serb Areas
in Croatia
4.85 TheRespondentcriticisestheMemorialforassertingthatallSerbunits
fighting against Croatia were “paramilitary groups” and thus connected as a
whole to the JNA and the FRY. The Counter-Memorial refers to the Milicija
and the TO forces of the ‘Serb autonomous regions’ and strives to show that
they stood under the control of the Serb authorities of those ‘autonomous’
146
regions. According to the Respondent, when the JNA “started” to fight
the Croatian side (having previously been a “peacekeeper”), it cooperated
147
with the Milicija and the TO forces of the ‘Serb autonomous regions’. As
discussed below, this representation of the rebel Serb forces as a distinct and
independent armed force, subject only to the control and direction of the rebel
Serb authorities, is wrong.
4.86 The emergence of Serb paramilitary groups in Croatia and the support
given to such groups by the JNA and the Serbian leadership is described in
148
Chapter 3 of the Memorial. Having disarmed the Croatian TO in May
1990, the JNA went on to make seized weapons available to rebel Serbs.
The purported ‘buffer role’ played by the JNA allowed the Serbs to organise
themselves into paramilitary groups. This was a prelude to the JNA’s direct
support for and then reliance on paramilitary groups. 149 Some paramilitary
groups evolved into the ‘TO’ of the RSK and subsequently into the ‘army of
the RSK’. After the formal proclamation of the FRY in April 1992, the VJ
continued to provide support to the military forces of the rebel Serbs, even
beyondthedepartureoftheJNA/VJfromCroatiaon19May1992. 150Asnoted
by V. Kadijević: “The JNA represented the basis from which three armies
were formed – theArmy of the FRY, theArmy of the Republika Srpska (VRS)
and the Army of the Republika Srpska Krajina”. 151This Section of the Reply
responds to the Respondent efforts to downplay or deny the support provided
by the Republic of Serbia/emergent FRY to the rebel Serbs. 152As explained
153
in the Memorial, the rebel Serb TO units were in fact largely drawn from,
145Ibid., para. 71.
146 Counter-Memorial, paras. 610-612.
147
148Counter-Memorial, para. 613.
See Memorial, paras. 3.45-3.71.
149 See Memorial, para. 3.54.
150 See Memorial, para. 3.58
151V. Kadijević, “As I See the Disintegration – An Army without a State”, p. 163.
152 Counter-Memorial, paras. 624-634.
153
The structure of the TO of rebel Serbs is outlined in Davor Marijan, Slom Titove armije:
JNA i raspad Jugoslavije 1987.-1992. [Collapse of Tito’s Army: the JNA and Break-up of
Volume 4.indd 123 12/14/2010 2:27:01 PM 124
and inherited equipment taken from, former units of the TO of the Socialist
RepublicofCroatia. 15TheRespondentadmitsthaton10October1991theAll
People’s Assembly of Slavonia, Baranja and Western Srem made a decision
that its TO forces would become a part of JNA, but then states that there is
evidence that it was not before late October 1991 that the local TO units were
subordinated to the JNA in the fighting in Vukovar. 155The Respondent omits
to refer to the ICTYTrial Chamber Judgment in Mrkšić et al.
4.87 As noted above and in the Memorial, 156Serb paramilitary groups were
formed as a result of Serbian intervention in the internal affairs of Croatia.
In this way, the JNA gave the Serbs time and space to establish the ‘Serb
autonomous regions’ in Croatia and to organise paramilitary groups and arm
them. The breakaway Milicija was kept alive by the JNA through a system
of buffer zones and, after the attack on Glina on 26 June 1991, a concerted
action between the Milicija and the JNA started. By late July 1991, the JNA
became the chief source of instability in Croatia. Paramilitary groups, later
called ‘the TO’, mirrored the structure of the TO of the Croatia. However,
their emergence ran in parallelwith the launching of the JNAoffensive against
Croatia in September 1991. From that time on, the paramilitary TO was under
the control of the JNAand incorporated into the JNAsystem. This can be seen
in many documents of the JNAKnin Corps which effectively set it up and had
command over it. 157
4.88 In the Theunens Report, 2003, submitted to the ICTY by the
Prosecution during the proceedings against Slobodan Milošević, reference is
made to the support provided by the SFRY, the JNAand Serbia to local Serb
forces in Croatia in 1991:
“The organised nature of this support and its extent...indicate
that the assistance provided by the JNA was authorised and
endorsed by the supreme (political) command levels of the (S)
FRY...There are examples of Slobodan Milošević being involved
in the decision-making process to provide assistance to the local
Serb forces in Croatia. The local Serb leadership in Croatia
considered Milošević as a person to have influence and contacted
him during the conflict in order to help implement their requests
158
for assistance.”
Yugoslavia 1987-1992], pp. 286-288.
154 Memorial, para. 3.47.
155 Counter-Memorial, para. 614.
156 Memorial paras. 3.48-3.53.
157 Komanda 9. korpusa, Str. pov. br. 19-1441 od 16. 9. 1991., Zapovest za napad op. br.
1., [Command of the 9th Corps, Strictly confidential, No. 19-1441, 16 September 1991,
Command for Attack Op. No. 1], IKM Komande VPO – Istureno komandno mesto Komande
Vojnopomorske oblasti [Command Outpost of the Command of the Military-Naval District],
Str. pov. br. 167-1/47-911 od 20. 9. 1991., Zapovest za upotrebu snaga [Strictly confidential
No. 167-1/47-911, 20 September 1991, Command for the Use of Forces].
158 Theunens Report, 2003, p. 7; Theunens Report, 2007, p. 8.
Volume 4.indd 124 12/14/2010 2:27:01 PM 125
4.89 Further evidence that rebel Serbs were subordinated to the JNAin the
battle for Vukovar is provided by the Croatian State Attorney’s Office, which
has collected JNA documents issued at the time of the battle for Vukovar,
from the case Mrkšić et al. From the very first battle command issued by
Mile Mrkšić on 1 October 1991, it is evident that the rebel Serbs were under
the command of Operation Group South. 159 On 20 September 1991, the JNA
strengthened Serb rebel forces with its own personnel. Many officers and
junior officers of the JNA were appointed and sent to Croatia to lead Serb
160
rebels there. Based on a decision of the Federal Secretariat for People’s
Defence, the “Headquarters of the TO SAO Krajina was set up”. That HQ
became operational on 30 September 1991. 161 The 2 Operation Zone was
established for the area of Lika, while Kordun and Banovina were merged
into the 3 rdOperation Zone. 162 A new commander of the HQ of the TO SAO
163
Western Slavonia was appointed. HQ of the TO Zone Eastern Slavonia,
Banovina and Western Srem was set up as late as December, following the
164
merger of the rebel regions into one whole, the ‘Republic of Serb Krajina’.
Prior to its existence, there was the HQ of TO of Slavonia, Banovina and
Western Srem that had been commanded by Radovan Stojčić – Badža, a
165
member of the security service of the Republic of Serbia. This confirms
Serbia’s direct control over the armed forces of the rebel Serbs.
4.90 The ‘Balkan Battlegrounds’Report on which the Respondent relies in
the Counter-Memorial states that:
“[In June–September 1991] The political and military leadership
of the three SAO’s almost certainly with strong support from
the Serbian SDB and its Special Operations Unit had a clearer
understanding of their war aims and the strategy they intended
to use to achieve their objectives. In addition the SDB had
thoroughly armed the TO forces of all three autonomous regions,
ensuring that in general, Serb forces outmanned and outgunned
159 Command of the Guards Motorised Brigade, No 15-1, 1 October 1991, Annex 62.
160 See the 6 Orders from 20 September 1991 to send persons to Territorial Defence of the
SerbianAutonomousDistrict(SAO)Krajina(4examplesforpersonssenttothe2 ndOperational
rd
Zone, Lika; 1 example for persons sent to the 3 Operational Zone, Banovina and Kordun; and
1 example for persons sent to the Headquarters of the TO of the Serbian Autonomous District
Krajina), Annexes 53-58.
161 Decision of 2nd and 3rd Operation Zone for Banija and Kordun, No 9, 3 October 1991,
Annex 65.
162 SAO Krajina, HQ of the TO II. Operation Zone Lika, Strictly Confidential No. 88/1,
26 January 1992, Presentation by the Commander of the Command HQ of TO Lika; SAO
Krajina, Government, President, Confidential 1/1-91, 5 October 1991; Decision of 2nd and 3rd
Operation Zone for Banija and Kordun, No 9, 3 October 1991, Annex 65; SAO Krajina, HQ of
the TO, No 85/91, Order No 24-272, 26 November 1991, Annex 73.
163 SAO Krajina, HQ of the TO, No 85/91, Order No 24-272, 26 November 1991, Annex 73.
164IntroductoryremarksbytheCommanderoftheMainHeadquartersoftheTORSKDuring
165ort to the Government of RSK on Combat Readiness of the TO, 27 July 1992.
SAO SBWS, TO Order No. 3/91, 23 September 1991, Annex 59.
Volume 4.indd 125 12/14/2010 2:27:01 PM 126
their Croatian opponents….The deployment of the elite SDB-
raised Special Police from Knin (most likely aided by the
SDB’s Special Operations Unit) in key situations was critical to
bolstering the [quantitative] superiority of the TO forces against
regular Croatian troops…” 166
4.91 Volume II of the same Report describes how the SDB prepared Martić
to be the Krajina Serb military leader and organised the Serbian Volunteer
167
Guard under Arkan. The Report notes that in May 1991, the SDB (now
renamed the RDB) formed its Special Operations Unit at Golubić in the
Krajina under Captain Dragan’s command, overseen by Simatović, and states
168
that “The unit operated jointly with the Kninjas”. The Report states that the
Kninjas and the SDG were to serve as ‘elite mobile units’, and confirms the
direct support given by Serbia to the military forces of the rebel Serbs, as well
as the control exercised by Serbian state organs including the SDB.
4.92 The Respondent claims that the armed forces of the SerbAutonomous
Region of Krajina, and later of the ‘RSK’, and of other ‘Serb autonomous
169
regions’were ‘independent’. The Counter-Memorial criticises theApplicant
for trying to create the responsibility of the FRY for the actions of the SFRY
organs and the JNA. 170
4.93 As discussed in Section 2 of Chapter 3 of the Memorial, there is
extensive evidence that Serbia supported the ‘RSK’ militarily in a range of
ways: Serb and Serbian paramilitary groups were financed, armed, supported,
organized and controlled by Serbia, and carried out their activities in close
cooperation with the JNA and then the Yugoslav Army of the FRY. On
occasion, they were formally integrated into the command structure of the
JNA, including as volunteers. 171Notwithstanding the Respondent’s claims to
the contrary, the Krajina Serbs had neither the strength nor the capability to
act independently of Serbia militarily, and Serbia and the JNAarmed the rebel
Serbs in those areas. The JNA provided them with senior military personnel
and commanded them, maintaining the position which had applied to the
Armed Forces of the SFRY. Finally, the entire structure of theTO of the ‘RSK’
was set up by the JNA: including the organisational structure, armament,
the placement of commanding officers and operational planning. There is
extensive official documentation issued by the JNA and by rebel Serbs that
172
evidences this relationship.
166‘Balkan Battlegrounds’ Report, Vol. I, p. 94.
167‘Balkan Battlegrounds’ Report, Vol. II, p. 26.
168
169Ibid, pp. 26-27.
See Counter-Memorial, paras. 616, 618, 621 and 623.
170Counter-Memorial, para. 636.
171Memorial, para. 3.71 and the preceding section.
172See for example Memorial, paras. 3.62-3.71.
Volume 4.indd 126 12/14/2010 2:27:01 PM 127
173
4.94 The Respondent criticises theApplicant’s reliance on a Decision of
the ‘President of the Government of the SerbAutonomous Region of Krajina’,
MilanBabić,ontheappointmentoftheCommandantoftheTOofthe‘Serbian
AutonomousRegionofKrajina’. 174TheRespondentcontendsthatthisDecision
undermines the Applicant’s position since it shows that the authorities of the
‘SerbAutonomous Region of Krajina’appointed commanding officers in their
TO themselves. As discussed below however, the Respondent’s argument
misrepresents the facts.
4.95 Milan Babić appointed General Ilija Đujić as Commander of the
175
TO of the Serb Autonomous Region of Krajina on 30 September 1991. A
memorandum issued by the Headquarters of the Operation Zone 2 and 3 for
Banovina and Kordun of 3 October 1991 states that “the Headquarters of the
TO of the Serb Autonomous Region of Krajina” was formed by a decision of
the Federal Secretariat of People’s Defence and that retired Colonel-General
176
Ilija Đujić was appointed Commander of the HQ of the TO of Krajina.
The memorandum repeats the wording used in a copy of an undated circular
letter signed by Milan Babić. Further evidence of the Serbian state’s leading
role in the operation of the TO of the ‘Serb Autonomous Region of Krajina’
is provided by an Order of the Head of the Personnel Administration of the
Federal Secretariat for People’s Defence of 20 September 1991, under which
many JNA officers and non-commissioned officers were sent to the Main
Headquarters of the TO of the ‘Serb Autonomous Region of Krajina’ to staff
the headquarters and take over the command of the TO of the rebel Serbs.
That Order refers to the appointments in the Headquarters of the TO of the
‘Serb Autonomous Region of Krajina’ and the rest to Operation Zones 2 and
3, comprising Lika, Kordun and Banovina. 177The position was the same in
178
WesternSlavoniawheretheTOcommanderwasalsoappointedbytheJNA.
The only exception was Eastern Slavonia, Baranja and Western Srem, where
the military commander of the rebel Serbs was a high-ranking official of the
179
Ministry of the Interior of Serbia (Radovan Stojičić Badža), appointed
by the Minister of the Interior of Serbia. These documents clearly refute the
Respondent’s claim.
4.96 The Respondent largely admits that the JNA supplied the Krajina
180
forces with arms in late 1991 and in 1992. However, it asserts that this must
be viewed within the “context” of the JNA’s withdrawal from the UNPAs
173 Counter-Memorial, para. 624.
174 Memorial, Annexes Vol. 4, Annex 101.
175 Memorial, para. 3.81.
176
Decision of 2nd and 3rd Operation Zone for Banija and Kordun, No 9, 3 October 1991,
177ex 65.
SAO Krajina, HQ of the TO, No 85/91, Order No 24-272, 26 November 1991, Annex 73.
178 Ibid..
179SAO SBWS, TO Order No. 3/91, 23 September 1991, Annex 59; Confirmation Document,
Supreme HQ of the SAO SBWS TO, 13 December 1991, Annex 74.
180 See Counter-Memorial, paras. 628 and 630.
Volume 4.indd 127 12/14/2010 2:27:01 PM 128
and the need to leave behind “obsolete military equipment”. The Respondent
argues that the provision of arms and military equipment does not amount
to proof of control over the forces of Krajina Serbs. The Counter-Memorial
claims that the SFRY “assisted” in the restructuring of the TO of the Krajina.
According to the Respondent, the restructuring of the TO and the Milicija was
eventually completed without the participation of the JNA.
4.97 In addition to the evidence presented in Chapter 3 of the Memorial,
theApplicant has identified further evidence to confirm that the JNAplayed a
decisive role in setting up and operating the TO of the rebel Serbs. In relation
to the Respondent’s claim that the JNA was forced to ‘abandon’ equipment
when it withdrew from Croatia, theApplicant notes that the JNAdid not leave
obsolete arms and equipment in Macedonia. In Macedonia, the JNA left only
some very ancient T-34 tanks.
4.98 The Respondent admits that the Army of Yugoslavia ‘accepted’
conscripts of the SVK before they were sent to the RSK. 181However,
according to the Counter-Memorial, this does not represent the deployment
of conscripted soldiers from the FRY to the occupied territory of Croatia, as
claimed by theApplicant.
4.99 The Respondent seeks to downplay the subordination of the ‘RSK’
armed forces and police force to the JNAand Serbia, and alleges that the ‘Serb
Autonomous Region of Krajina’ and the subsequent “RSK” had exclusive
command over their military and police forces. The Respondent admits that
theseforcescooperatedwiththeJNAfromthemomenttheJNAhadabandoned
the role of a “peacekeeper” and begun fighting the Croatian forces. There are
many examples, however, showing that the approval of the ‘RSK’authorities
was neither sought nor considered necessary by Serbia. As the ICTY held in
Mrkšić et al, the Respondent’s contention that the cooperation between the
JNA and rebel Serbs started only in mid-September 1991 is fals182There is
clear evidence of their “cooperation” as early as July 1991.
(c) Volunteers and paramilitary formations
4.100 TheApplicant’s position is that the JNAintegrated paramilitary forces
or ‘volunteers’into its forces during the war and the genocidal acts committed
by these paramilitary forces were a full part of the JNA’s campaign. The
Respondent claims the information on volunteers and volunteer groups is
“inadmissible, insufficient and inaccurate,” 183and contends that allegations
thatthesegroupswerepartoftheJNAmustbeestablishedineachspecificcase.
181 See Counter-Memorial, para. 632.
182 Evidence of cooperation between rebel Serbs and the JNA is specified in Slom Titove
armije: JNA i raspad Jugoslavije 1987.-1992 [The Breakdown of Tito’s Army: the JNA and
183integration of Yugoslavia], Zagreb, 2008, by Davor Marijan, pp. 269-273.
See Counter-Memorial, paras. 637, 638 and 641.
Volume 4.indd 128 12/14/2010 2:27:01 PM 129
These objections have no foundation, as ICTY findings and other evidence
confirms, as noted in Chapters 2, 5, 6 and 9 of this Reply.
4.101 The ICTY Trial Chamber in Mrkšić et al described the typical
system of attack employed by the JNA as one which culminated in the entry
into Croatian villages by Serb paramilitaries, once these villages had been
surrounded and shelled by the JNA. 184This confirms the evidence provided in
the Memorial.
4.102 The Respondent notes that there are a number of missing paragraph
references in Chapter 3 of the Memorial where it refers to the Final Report of
the United Nations Commission of Experts established pursuant to Security
Council resolution 780 (1992). 185 These missing references are set out below
(all initial paragraph references are to Chapter 3 of the Memorial):
1. Paragraph3.48,footnote109,themissingparagraphreference
is to Introduction (3 rd paragraph) of Annex IIIA of the
Report;
2. Paragraph 3.49, footnote 110, the reference is to Section IIIA
of the Report, ‘The military structure of the warring factions
and the strategies and tactics they employ’;
3. Parathaph 3.49, footnote 111, the reference is to Section IIIA,
12 paragraph;
4. Paragraph 3.49, footnote 112, the reference is to Section IIIA,
th
10 paragraph;
5. Paragraph 3.49 footnote 113, the reference is to Section IIIA,
th
13 paragraph;
6. Paragraph 3.49 footnote 114, the reference is to Section IIIA,
11thparagraph;
7. Paragraph 3.51 footnote 119, the reference is to Annex III A,
Section II D.I, 2ndparagraph;
8. Paragraph 3.52, footnote 127, the reference is toAnnex IIIA,
Section II,D.2 (Section onArkan);
9. Paragraph 3.56, footnote 133, the reference is toAnnex IIIA,
Section III.C (Section on White Eagles).
184Mrkšić et al, para. 43.
185
FinalReportoftheUnitedNationsCommissionofExpertsestablishedpursuanttoSecurity
Council resolution 780 (1992), S/1994/674/Add.2 (Vol. I), 28 December 1994.
Volume 4.indd 129 12/14/2010 2:27:01 PM 130
4.103 The Applicant notes the role of the Ministry of the Interior of Serbia
in Croatia, an example of which is evident from a statement given before the
MilitaryCourtinBelgradebyGeneralAleksandarVasiljevićin1999,confirming
the links between the JNAand three key paramilitary groups, including Dušan
Silni and Arkan’s group. From 1991 to 1992 General Vasiljević was Head of
the Security Service of the Armed Forces of the SFRY, and he confirms that
Radovan Stojičić Badža was commander of a brigade of the Ministry of the
Interior of the Republic of Serbia consisting of three detachments: (1) the
“Dušan Silni” detachment [Dušan the Mighty] with mainly members of the
Serbian People’s Defence of Mirko Jović, (2) the “Crnogorac” detachment
[Montenegrin] that was formed with the personnel from the area of Fruška
186
Gora and (3) Željko Ražnatović (Arkan’s) detachment.
4.104 The Respondent also claims that the Memorial does not adduce
reliable evidence that Vojislav Šešelj received official support from Belgrade
to send volunteers to Croatia. 187The Respondent argues that those claims are
founded on the statements that Šešelj gave but then retracted.
4.105 The connection between Šešelj, his volunteers and the Serbian
authorities was made through the JNA. The Belgrade weekly Intervju states
that two battalions of Vojislav Šešelj’s Serbian Radical Party took part in
the fight for Vukovar. 188Šešelj himself claimed that the first arms shipments
arriving in Borovo Selo in Croatia derived from a depot of the TO of the
Republic of Serbia and were transported by the Milicija of the Republic of
Serbia. 189The close relationship between the JNAand MUPand Šešelj and the
Serbian Radical Party is also discu190d in the ‘Balkan Battlegrounds’Report,
on which the Respondent relies.
4.106 In the Martić case, the Trial Chamber found as a fact that Šešelj was
party to the joint criminal enterprise alleged in that case. Šešelj has also been
indictedbytheICTYProsecutorasbeinginvolvedinajointcriminalenterprise
together with Slobodan Milošević and others, alongside members of the
JNA, the Yugoslav Army (‘VJ’), the Serb TO of Croatia and of Bosnia and
Herzegovina, the army of the ‘RSK’(‘SVK’) and the Army of the Republika
Srpska (‘VRS’), amongst others.
4.107 The Respondent contends that the Applicant has also failed to
provide reliable evidence that Željko Ražnatović (Arkan), with his unit, was
closely connected to the authorities of Serbia and the FRY. 191It claims that a
186
187 Witness Statement of Aleksandar Vasiljević, Annex 26.
188 Counter-Memorial, paras. 642-645.
Dobrovoljci ne ratuju za stranke [Volunteers are not Fighting for Political Parties], Intervju,
24 January 1992, pp. 6-8.
189 Veći sam nego ikada [I am Greater Than Ever], Velika Srbija, May 1994, p. 37.
190 ‘Balkan Battlegrounds’ Report, Vol. II, p. 199.
191 Counter-Memorial, paras. 646-647.
Volume 4.indd 130 12/14/2010 2:27:02 PM 131
photograph taken in 1997 at the funeral (of Radovan Stojičić Badža) showing
Arkan and Milošević together cannot be used as evidence to substantiate the
Applicant’s claims. In fact, the close connection betweenArkan and the FRY/
Serbia is evidenced by many sources:
1. The Security Service of the Headquarters of the TO of the
Republic of Serbia stated that Arkan is “paid especial
attention to by a larger number of ministers and other officials
in the Government of Serbia and enjoy a specially privileged
192
treatment”;
2. The Security Service of the Command of the 1 Military st
District dated 19 October 1991 found out from an informer
who was in contact withArkan on several occasions that “that
they are receiving armaments, ammunition and MES (mines
and other explosive devices) from the Ministry of the Interior
and the Ministry of Defence of the Republic of Serbia and
that he is distributing them to the Headquarters of the [TO] of
Erdut, Sarvaš and Borovo Selo”; 193
3. The Security Service of the 12 Corps of the JNA dated 1
January 1992 stated that Arkan was openly “supported by the
Ministry of the Interior, the TO and the Ministry of People’s
Defence of the Republic of Serbia, but it is claimed that this
is so on direct orders of the highest leadership of the Republic
of Serbia”. It also reports that Arkan was “taking part in
meetings of the Command of the 1 stMilitary District together
194
with the Corps Commanders”;
4. In his statement given in 1999 before the Military Court in
Belgrade, General Aleksandar Vasiljević stated that Arkan
was commander of a detachment that was part of a brigade
of the Ministry of the Interior of the Republic of Serbia
commanded by Radovan Stojičić Badža; 195
5. The 2002 Balkan Battlegrounds Report on which the
Respondent relies states:
“AfterVukovar fell, General Panić moved his powerful
192
Security Organ of the Republic’s Headquarters of the TO of the Socialist Republic of
Serbia, Strictly Confidential No. 254-1/9, 13 October 1991, Notification (ICTY Doc No. 0340-
4870-0340-4871).
193 The Security Organ of the Command of the 1 Military District, Strictly Confidential No.
68-443, 19 October 1991, Information (ICTY Doc No. 0340-4872-0340-4873).
194 th
The Security Organ of the Command of the 12 Corps, 1 January 1992, Information
(ICTY No. 0340-4884-0340-4887).
195 Witness Statement of Aleksandar Vasiljević, Annex 26.
Volume 4.indd 131 12/14/2010 2:27:02 PM 132
forces into position to continue the strategic offensive
th
which Vukovar had delayed for two months. JNA 12
Corps troops, spearheaded by Arkan’s Tigers, began
their effort to break through the key Osijek-Vinkovci
st
defense line defended by the Croatian 1 Osijek…”
(emphasis added) 196
4.108 The Memorial makes clear that volunteer paramilitary groups were
integrated into the JNA by an order of the Federal Secretariat of People’s
197
Defence dated 13 September 1991. This order confirmed that Serbia
had, through the JNA, effective control over Serbian paramilitary forces. 198
The Respondent claims that volunteers were integrated into the JNA on an
‘individual’basis, 199and contends that theApplicant has not identified specific
instances in which volunteers who committed crimes had been integrated into
the JNAor acted under JNAcommand.
4.109 This is clearly established by the evidence, including findings of fact
of the ICTY on the status and action of volunteers or paramilitaries: 200
“Serb “volunteers” in Lovas had attacked specific homes on
201
10 October 1991 killing 22 Croats and one Serb.”
The Trial Chamber has confirmed that:
“The principle of unity or singleness of command, therefore,
required that in a zone of operations, in combat action, one
commander was responsible for commanding all military units in
that area, including TO and volunteer units, and that all subjects
in the area, i.e. all units and their individual members, were
subordinated to the one commander.” 202
And it has affirmed the degree of control over volunteers or paramilitaries by
the JNA:
“ThecircularoftheChiefoftheGeneralStaffof12October1991
and the order of the command of 1 MD of 15 October 1991 …
go even further than has been discussed in these last paragraphs.
They serve to confirm that what had been established as the de
facto reality, not only in the zone of operations of OG South,
196 ‘Balkan Battlegrounds’ Report, Vol.I, p. 101; Vol.II, p. 196.
197 Memorial, para. 3.80.
198
Theunens Report, 2003, para. 7: Theunens refers to the Serbian and SFRY 1991 Orders for
the Registration and Acceptance of Volunteers into the Serbian TO and JNA.
199 Counter-Memorial, paras. 648-652.
200 Mrkšić et al, para. 83, cited at para. 4.41, supra.
201 Mrkšić et al, para. 47.
202 Ibid., para. 84.
Volume 4.indd 132 12/14/2010 2:27:02 PM 133
but, generally, in the Serb military operations in Croatia, was the
complete command and full control by the JNA of all military
operations. This, in the Chamber’s finding, reflects the reality of
what had been established. It was a reality, which the JNA had
the military might to enforce, even though it may well have been
reluctant to be too heavy handed in doing so, against TO and
203
volunteer or paramilitary units fighting in the Serb cause...”
204
4.110 Under the rules operating in the SFRY, a ‘volunteer’ was a minor
or a retiree. Kadijević’s order of 13 September 1991 confirmed that the JNA
had given up its former “code of conduct” in direct response to the decision of
early July 1991 to call for volunteers. The great majority of these volunteers
were Serbs, so it is not surprising that the JNA was perceived as a ‘Serb’
army. There is evidence that volunteer groups were fighting together with the
JNA, even independently of this Order, as was the case with two battalions of
Šešelj’s Chetniks in Vukovar. 205 Other examples include:
1. A command of Colonel Mile Mrkšić of 21 November 1991
showingthatthevolunteerdetachmentof“Šešeljevci”[Šešelj’s
people] was under the command of the JNAOperation Group
South; 206
2. An order of the Command of the 1st Military District
of 9 October 1991 informing the subordinates that new
volunteer and other units were coming and should be readily
accepted; 207
3. An order of the Command of the 1 Military District of 15
October 1991 that the JNA units should remove from the
territory all paramilitary detachments “which refuse to put
208
themselves under the command of the JNA”.
4.111 In one of his analyses for the ICTY OTP, R. Theunens identifies links
between paramilitary formations and the Ministry of Interior of the Republic
of Serbia. These links were illegal under both the SFRY Constitution and the
209
Constitution of Serbia, but continued to exist.
203
Ibid., para. 89.
204 See the Expert Report of the ICTY Military Analysis Team in Mrkšić et al: Operational
Group South of the SFRY Armed Forces and the Operations in SBWS. This Report was
published in the book Vukovarska tragedija 1991: U mreži propagandnih laži i oružane moći
JNA [Vukovar Tragedy of 1991: Entangled in Propaganda Lies and Military Power of the
205], Helsinki Committee for Human Rights in Serbia, Belgrade, 2007, Vol. II, pp. 830-831.
See Counter-Memorial, paras. 642.-645.
206 Command of OG South, Strictly Confidential, No 464-1, 21 November 1991, Annex 72.
207 Command of the 1 MD, No 160-15, 9 October 1991, Annex 66.
208 Command of the 1 MD, Strictly Confidential No 1614-82 27, 15 October 1991, Annex
209
Vukovarska tragedija 1991: u mreži propagandnih laži i oružane moći JNA [Vukovar
Volume 4.indd 133 12/14/2010 2:27:02 PM 134
4.112 Inthe1982FederalLawonAllPeople’sDefence,therewasaprovision
210
that theTO comprised all armed units outside the JNAand Milicija. This did
notincludeSerbvolunteerandparamilitaryunits.Theissueofvolunteersinthe
armed forces was also regulated by the 1982 Law onAll People’s Defence, 211
which defined ‘volunteers’ as individuals who did not have to serve in the
army and who volunteered in the armed forces. It is, in any case, clear that
volunteer units as such were not meant to exist, whatever the basis for their
organisation.
4.113 Paramilitary units operate outside the law. There were references to
them in 1990 when Croatia was accused of preparing a paramilitary army, and
in January 1991, the Presidency of the SFRY ordered their disarmament. The
order was never withdrawn and the JNA was obliged to execute it, regardless
of who formed the units or the basis on which they were formed. During the
siegeofDubrovnik,theJNAinvokedthisorderandorderedtheCroatianforces
to surrender their arms. Yet the same was not required from Serb voluntary
units fighting the JNA.
4.114 There is overwhelming evidence that Serbia permitted the
organisation of paramilitary forces on its territory and also armed and trained
these organisations. Reference can be made to an article in the Belgrade daily
Borba on 16-17 November 1991 which stated that some hundred volunteers
of the Serbian Radical Party came to help members of the paramilitary TO
of Podravska Slatina. The volunteers “who call themselves Chetnicks [...]
signed for their uniforms in the Belgrade “4. juli” barracks” on the basis of an
agreement “between the leadership of the Serbian Radical Party and General
Simović, Serbian War Minister”. 212
4.115 Further evidence of the integration of paramilitary forces into the JNA
can be adduced from a report by the European Union monitors, published in
1991intheBelgradeweeklyIntervju,whichstatedthattheoverallactivitiesof
the JNA and volunteer units were “a part of the plan designed to gain control
over the territory in the areas inhabited by the Serb population particularly
following the line Virovitica – Hungarian border – Sisak – Karlovac to Zadar
and the Dalmatian coast”. 213
Tragedy of 1991: Entangled in Propaganda Lies and Military Power of the JNA], Helsinki
Committee for Human Rights in Serbia, Belgrade, 2007, Vol. II, p. 821.; see also Expert
Report of R. Theunens, submitted by the Prosecution in Mrkšić et al, “SFRY Armed Forces
OG South and the operations in Slavonia, Baranja and Western Srem (SBWS) (August –
November 1991)”, September 2005.
210 SFRY, Law on All People’s Defence, Article 102.
211 SFRY, Law on All People’s Defence, Article 119.
212 Saveznici na slavonskom frontu [Allies on the Slavonian Front], Borba, 16-17 November
1991.
213 Izveštaj evropskih posmatrača [Report of the European Monitors], Intervju, 25 October
1991.
Volume 4.indd 134 12/14/2010 2:27:02 PM 135
4.116 The ‘Balkans Battlegrounds’ Report relied upon by the Respondent
states that:
“It was during this second battle [for Vukovar in September/
October 1991] that the JNAintroduced a new force into the war-
volunteerunits.ThesewererecruitedtofillthegapsintheArmy’s
ranks that should have been occupied by trained reservists who
had failed to appear for mobilisation.The men for these company
–and battalion sized detachments, recruited with the assistance
of the Serbian MUP, came primarily from Serbian nationalist
political parties and clubs…The untrained volunteers were often
motivated by xenophobic zeal against the Croats…who suffered
numerous atrocities at their hands…” 214
4.117 In Mrkšić et al the ICTY Trial Chamber found that the command of
OG South of the JNA exercised direct command authority over up to five
assault detachments in respect of their combat operations and that these
detachments included TO and volunteer or paramilitary units. 215 The Trial
Chamber also noted that the paramilitary unit Leva Supoderica was included
in the 1 Assault Detachment and that it was the strongest such detachment
precisely because of the size of TO and volunteer units attached to it. 216The
Trial Chamber held that:
“Other volunteer units present in the Vukovar area in the zone
of operations of OG South included Novi Sad Volunteers
Company, which was also part of 1AD (see below), 2 nd
Volunteers Company, Smederevska Palanka, Sarajevo and
Belgrade volunteers’platoons” . 217
(d) Illegal arming of Serb rebels by the JNA
4.118 The Applicant’s position is that FRY/Serbia, acting through the JNA,
armed the rebel Serb forces in Croatia. The Respondent seeks to play down
theextenttowhichtheJNAarmedrebelSerbsinCroatia.TheMemorialrefers
to a letter written by the Colonel of the Security Service of the army of rebel
Serbs in Croatia, Dušan Smiljanić 218and the Respondent tries to present it as
an isolated example of action taken by an individual officer. 219An analysis of
Smiljanić’s lettershows that theApplicant’s position is correct.As Lieutenant-
Colonel and Head of Security in the 10th Corps of the JNA, Smiljanić armed
the rebel Serbs. He organised the distribution of some 15,000 arms, a quantity
sufficient to arm anArmy division or four brigades.
214
215‘Balkan Battlegrounds’ Report, Vol. I, p. 100.
Mrkšić et al, para 98.
216Ibid., paras. 99 and 101-104.
217Ibid., para. 94.
218Memorial, para. 3.32, footnote 70.
219Counter-Memorial, para. 596.
Volume 4.indd 135 12/14/2010 2:27:02 PM 136
4.119 In his letter to General Mladić dated 15 October 1994 , Smiljanić
states:
“At the beginning of August 1991, the Operations team
PROBOJ-2wasformedrequestedbytheSecurityAdministration
andundermycommanding[sic].ItwascomposedoftheSecurity
Department of the various branches with the following task:
- arming of the Serbian people,
- the central task: the help and participation in the military
organisation tasks,
- resisting the Croatian service in the areas of Lika, Banija
and Kordun.
- this team worked until the end of 1991. I was a subordinate
to the Security Administration (UB) and I used to submit
a report to the Head of the 2 nd Military Region, Air Force
[(RV)] and theAnti-Aircraft Defence [(PVO)]. Besides that
IwasalsoconnectedwiththeMinistryofDefence[(MO)]of
the Republic of Serbia, concerning the role of this Ministry
221
in the war conducting [sic] at that time...”
4.120 Having armed the Serbs in Lika, Kordun and Banovina– with the full
th
knowledge of the head of security of the 5 Military District, Colonel Boško
Kelečević–SmiljanićarrangedasimilaractioninJuly1991inBanjaLukaand
Bosanski Novi. Over 20,000 arms and weapons were transported to Čelinac
222
andDrvar. B.MamulareferstoSmiljanićasoneofthepeoplewhoorganised
the ‘People’s Front’, one of many participants in a larger undertaking. 223This
was not an isolated incident.
4.121 This illegal arming of rebel Serbs by the Republic of Serbia/emergent
FRY continued during the conflict. The Trial Chamber in Martić held that:
“140. As early as August 1990 and through the summer of
1991, officials of the MUP of Serbia, including the Chief of the
SDB, Jovića Stanisic, and an official thereof, Franko “Frenki”
Simatović, met with the SAO Krajina leadership, in particular
with Milan Martić, concerning the provision of financial,
logistical and military assistance. From January 1991, Milan
Martić went on occasion to Belgrade to meet with these officials
and with Radmilo Bogdanović, the Minister of the Interior of
Serbia, concerning the provision of support to the SAO Krajina.
220
Memorial, Annexes, Vol.4, annex 65.
221Ibid., pp. 162-163.
222 Pomoćnik K-za bezbed.-obaveštajne poslove GŠ SVK od 15.10.1994, Provera podataka i
razgovor [Counter-Intelligence Agency: Assistant Commander for Security and Intelligence
of the General Staff of the Serb Army of Krajina, 15 October 1994, Verification of data and
conversation].
223 B. Mamula, Slučaj Jugoslavije [Yugoslavia Case], p. 238.
Volume 4.indd 136 12/14/2010 2:27:02 PM 137
141. The SAO Krajina budget was very small as a result of
Croatia having ceased to provide budget allocations to Serb
municipalities in May 1991. The SAO Krajina government,
including Milan Martić, sent requests to the government of
Serbia for military assistance and the evidence shows that these
requests were frequently met. The police of the SAO Krajina
were mainly financed with funds and material from the MUPand
SDB of Serbia. Moreover, there is evidence that weapons were
sent from Serbia by Radmilo Bogdanović via Bosanski Novi,
BiH, to the SAO Krajina. Beginning at the end of April 1991,
DušanSmiljanić,ChiefofSecurityoftheJNA10 thZagrebCorps,
made contact with leading figures in the SDS in the SAO Krajina
and provided large amounts of infantry and artillery weapons to
Serbs in Krajina from JNAdepots.”
4.122 A further specific example of JNA distributing arms to rebel Serbs is
provided by security officers of the II Detachment of the Counter-Intelligence
Group of the Air Force and Anti-Aircraft Defence located in the building of
the Command of the 5th Corps of the Air Force and Anti-Aircraft Defence
in Zagreb. The operation had a cover name ‘Proboj 1’ (Breakthrough 1) and
its centre was at the Bihać airport. Local officials of the Serbian Democratic
224
Party assisted in arms distribution. In some territories along the Kupa
River, arms were distributed on the basis of the membership in the League
of Communists – the Movement for Yugoslavia. Some of the group opposed
225
the distribution. According to one source, the League of Communists –
Movement for Yugoslavia, as a political emanation of the JNA, distributed
226
some 13,000 ‘long arms’ in Eastern Slavonia. A further example is that of
Lieutenant-Colonel Milan Škondrić from the 944 Logistic Base in Karlovac,
who started to supply the rebel Serbs in the area of Plaški with arms in early
227
July 1991. A sizable quantity of JNA arms was transported to Gorski Kotar
in late July and earlyAugust 1991. 228
224Witness Statement of M.Č., Memorial, Annexes, Vol.2(III), annex 339.
225MUP RH – Ministarstvo unutarnjih poslova RH [Ministry of the Interior RC], Služba za
zaštitu ustavnog poretka [Service for Protection of the Constiturional Order], 3 May 1994,
Statement by R.R..
226
Dobrila GAJIĆ-GLIŠIĆ, Srpska vojska – iz kabineta ministra vojnog, [Serbian Army-
From the Cabinet of the Defence Minister], Marica and Tomo Spasojević, Čačak, 1992, p
146.
227 Ratni put Plašćanske brigade [The War Path of the Plaško Brigade], Pod zastavom
otadžbine [Under the Homeland’s Banner], Informativni list 70. pešadijske brigade, Plaški,
1/1995,1 [The Information Bulletin of the 70th Infantry Brigade].
228Štab odbrane Gorskog kotara, Br. 9 od 18.05.1994., Kratak pregled najvažnijih događaja
u radu predstavništva Srba i Štaba odbrane Gorskog kotara [Defence Headquarters of Gorski
kotar, No. 9 dated 18 May 1994, A brief overview of the most important events in the work of
the representative body of Serbs and the Defence Headquarters of Gorski kotar] A portion of
these arms was surrendered to the Croatian authorities in mid-1992], N. Barić, Srpska pobuna
u Hrvatskoj 1990-1995. [The Serb Rebellion in Croatia, 1990-1995], pp. 325-326.
Volume 4.indd 137 12/14/2010 2:27:02 PM 138
4.123 There were similar cases in Western Slavonia: Colonel Nikola Marić
and other officers provided Serbs with arms and equipment from the Doljani
depot in the vicinity of Daruvar on 3 July 1991.Also in July 1991, Lieutenant-
Colonel Stevanović from the Požega barracks “transported in ten lorries arms
229
and ammunition to Serbs in the mountains”. From 1 June to 17 August
1991, Stevo Prodanović (an Ensign of the JNA) organised the removal of
some long arms from the JNA barracks in Daruvar and their transportation to
230
rebel Serbs.
4.124 A confidential document of November 1992 reveals that, at the start
of July 1991 a JNA officer being recommended for promotion was arming
the Serbs in Slavonia, and refers to the arming of Serbs by the JNA in the
area of Okučani in early July 1991. This at a time when according to the
Respondent, the JNA was still acting as a ‘peacekeeper’. This was done with
th 231
the approval of the head of the Security Service of the 5 Military District.
TheCommandoftheMotorisedJNABrigadefromtheLogorištebarracksnear
Karlovac distributed arms and equipment to rebel Serbs in the municipalities
ofVrginmost andVojnić and organised training for 346 rebel Serbs from those
municipalities. 232
4.125 The rebel Serbs in the area of Hrvatska Kostajnica were armed and
equipped in July 1991 by the JNA Banja Luka Corps, whose commander,
Lieutenant-Colonel-General Nikola Uzelac “showed full understanding for
our problems and I can well say that he met all our demands in terms of the
required matériel and equipment. Thus, we were reputed to be one of the best
equipped Headquarters in Banovina and Kordun at the time”. 233A document
from the ICTY archives sets out the equipment the Banja Luka Corps (later
the 1 Krajina Corps of the VRS) distributed to Serbs in Croatia. 234
4.126 The area of Northern Dalmatia also received arms from Serbia. In
one case, a tanker transporting petroleum and arms arrived in Knin on 28
July 1991. From there, Lieutenant-Colonel Borislav Đukić, Commander of
229
A. S. Jovanović, Poraz – koreni poraza [The Defeat – the Roots of Defeat], pp. 152-153,
176.
230 RSK, Recommendation for Extraordinary Promotion, Stevo Prodanović, 23 November
1992, Annex 76.
231RSK, Recommendation for Extraordinary Promotion, Dušan Saratlić, 23 November 1992,
Annex 77.
232
Vojna pošta br. 5512 Karlovac, Pov. br. 1-3 od 14.11.1991., [Military Post Office No. 5512
Karlovac, Confidential No. 1-3, 14 November 1991], Izvešće[Report].
233 Izvještaj o radu i aktivnostima predsjednika Skupštine opštine [Kostajnica] za protekli
period. [Report on the work and acitivities of the President of the Municipal Assembly of
Kostajnica for the past period]. The Report is not dated and it covers the period from the
democraticelectionstoearly1992andprobablyalsoaspeechbytheMayoroftheMunicipality
234nko Dmitrović, whicstcan be concluded from its content.
Command of the 1 Krajina Corps, Strictly Confidential No. 18-168/1, 31 August 1992,
Review of Distributed Arms (ICTY Doc. No. 00959772-00959773).
Volume 4.indd 138 12/14/2010 2:27:02 PM 139
the Motorised Knin Brigade ensured its safe passage to the Cetina River. 235
A conversation about arming the rebel Serbs in Obrovac by the Benkovac
Garrison was recorded on 1 August and broadcast on 19 August 1991 on the
Zadar Radio Station. 236
4.127 A report submitted on 28 July 1991 by deputy head of the State
Security Service of the Republic of Serbia, Franko Simatović, confirms the
involvement of the JNA leadership and Serbia in the organisation of the Serb
armed rebellion in Croatia:
“On 28 July 1991 a road tanker that besides oil derivatives,
was transporting weapons for the voluntary units of the SAO
Krajina arrived in Knin. Upon arriving in Knin, transportation
escort Musa Jovičić contacted lt. col. Đukić who provided for
his unobstructed passage through the Cetina area…The quantity
of weapons does not satisfy the needs of the Cetina area. A part
of them was intended for the arming of the SAOK “Guard” that
should be formed as the SDS’s party militia. The weapons were
sent following the agreement between Babić and General Špiro
Niković. We estimate that an uncoordinated distribution like this
one would lead to a rift in the, until now, tightly-knit Krajina
defence and that the actions of the party militia would disturb the
equilibriumthatwealreadyhavetroublepreserving. …Thebasic
conception as well as the elements of compactness of Krajina’s
defence might be jeopardized if the troops formed by Babić,
which are under the exclusive control of the SDS, were armed in
such a manner. Should such a situation create disturbances in the
237
defence, we shall react and stop such activities on time.... ”
4.128 In a Recommendation dated 23 November 1992, by the Zone Staff of
TO Western Slavonia for the promotion of major Dušan Saratlić, it is noted
that Saratlić, commander District Staff TO Okučani:
“organized with [Radoslav] Narančić and [Đorđe] Damjanović and
with the approval of the Security Service of the 5 Military District,
colonel Boško Kelečević, the supply and distribution of weapons to
235
Frenki Simatović’s Report of 28 July 1991, published in “Republic of Croatia
and Homeland War 1990.-1995: Documents: Armed Rebellion of Serbs in Croatia
and Aggression of Armed Forces of SFRY and Serbian paramilitary to Republic of
Croatia”, Book 1, Croatian Memorial-Documentation Center of the Homeland War,
236reb, pp. 208-209. th
Dnevnik Organa bezbednosti 9. korpusa [Diary of the Security Organ of the 9 Corps],
entry at 12.35 p.m., 19 August 1991; Jadranko Kaleb, Zadar u Domovinskom ratu 1990. –
1991., [Zadar in the 1990-1991 Croatian Independence War], Udruga hrvatskih veterana
Domovinskog rata Zadarske županije [Association of Croatian Independence War Veterans
of the Zadar County], Zadar, 1999, p 73.
237 Book of Documents RSK 1, Doc. No. 98.
Volume 4.indd 139 12/14/2010 2:27:02 PM 140
thepopulationoftheOkučaniterritory.Until8August1991conducted
trainingofconscriptsfromthisterritoryonPsunj,distributedweapons
and formed units. After having been notified that the Ministry of the
Interior Nova Gradiška has information on activities of JNA officers
relating to the arming of the population of Okučani, he returned to his
home 513 rdEngineer Brigade in Zagreb. ..” 238
4.129 By way of further confirmation of the JNA’s role, theApplicant notes
General Kolšek’s admission that
“the Serb population in Krajina and other areas, inhabited by the
Serb population in Croatia, was armed in different ways, inter alia,
from the depots of the 5 thMilitary District. Some of the most senior
th
officers from the Command of the 5 Military District participated
in those actions. Arms were also transported by helicopters to secret
locations.”239
(7) c o n c l sno
4.130 This Chapter establishes that the Serbianisation of the JNA started
in the late 1980’s, and that it then emerged as a Serb-dominated army with
an ideological commitment to a Greater Serbia.Additional evidence obtained
since the Memorial confirms this. Such additional evidence also confirms the
extent to which the SerbTO forces were subordinated to the JNA, including in
the course of the conflict itself; in this regard the ICTY’s judgment in Mrkšić
et al is dispositive.
4.131 The relationship between the rebel Serb forces and the JNA has also
become clearer. As confirmed by the ICTY’s judgment in Martić, the rebel
Serbs could not have operated as they did without the support of the Serbian
state and the JNA, in terms of personnel, financing, logistical, materiel and
operational support: see further, Chapter 9, at paragraphs 9.62-79.
4.132 Finally,itisevidentthatSerbia,throughtheJNA,hadeffectivecontrol
of paramilitary forces in the run up to and during the genocidal conflict in
Croatia, in particular in the autumn of 1991. These forces were integrated into
theJNAbytheOrderdated13September1991.FindingsoftheICTYinMrkšić
et al and Martić confirm the extent to which paramilitaries and members of
the JNAacted in concert in committing acts of genocide in Croatia.
238RSK, Recommendation for Extraordinary Promotion, Dušan Saratlić, 23 November 1992,
Annex 77. There are similar Recommendations in respect of, for example, Stevo Prodanović,
Annex 76; and Marko Vujić, Annex 78.
239K. Kolšek, Prvi pucnji u SFRJ, p. 126.
Volume 4.indd 140 12/14/2010 2:27:02 PM 141
4.133 In sum, there can be no doubt that the evidence confirms the central
role played by the JNA in the genocidal conflict conducted in Croatia. This is
conclusively established.
Volume 4.indd 141 12/14/2010 2:27:02 PM 142
Volume 4.indd 142 12/14/2010 2:27:02 PM 143
CHAPTER 5
GENOCIDALACTIVITIES IN EASTERN SLAVONIA
(1) Pr e l i m ir b s e r v aOtnis
(a) Introduction
5.1 In this Chapter, the Applicant responds to paragraphs 654-748 of
Chapter VII of the Counter-Memorial, concerning the genocidal activities
which took place in Eastern Slavonia, primarily in 1991-1992. Chapter 6
addresses the remainder of Chapter VII of the Counter-Memorial and follows
the same approach as this Chapter.
5.2 ChapterVIIoftheRespondent’sCounter-Memorialfollowaconsistent
pattern:
• ItsummarisestheallegationsandevidenceintheMemorialinamisleading,
inconsistent and incomplete manner, often to create an unfounded basis for
subsequent criticism;
• It erroneously criticises the evidential sources relied upon by theApplicant
as being inadequate;
• ItignoresmanyofthemethodsbywhichtheApplicantallegesthegenocide
was perpetrated, concentrating primarily (and incorrectly) on killings▯;
• It fails to respond to many of the principal allegations and evidential
sources relied on by theApplicant, including by failing to contest many of
the killings which theApplicant alleges.
5.3 Perhaps the most striking feature of the Respondent’s approach is its
abject failure to advance any positive case in relation to any of the allegations
made by the Applicant. The Respondent provides none of its own evidence
about the atrocities committed on the territory of Croatia, notwithstanding the
abundance of material which it must have in its possession. Instead, it elects to
criticise theApplicant’s evidence, often by making insubstantial observations
about details of particular witness statements.
5.4 The effect of the Respondent’s approach is that the Court is left
without a response to many of the factual allegations made by the Applicant.
In those circumstances, it is submitted that the appropriate course is for the
Court to accept those aspects of theApplicant’s case as unchallenged.
5.5 The evidence relied upon by the Applicant in this Reply reaffirms
the case advanced in the Memorial about the pattern of conduct which took
Volume 5.indd 143 12/14/2010 2:30:26 PM 144
place throughout the geographical areas with which the Claim is concerned
(see, in particular, paragraphs 4.08-11 and 8.11-15 of the Memorial). The
pattern included: killing; rape and sexual violence; torture; ethnically
derogatory language; conduct designed to debase and humiliate; subjection to
a subsistence diet; systematic expulsions from homes; hindering of essential
medical treatment and supplies; the identification of Croats by the use of white
bands and crosses; denial of food, water, electricity and medical treatment;
movement restrictions; looting and destruction of cultural monuments.
(b) The Structure of Chapters 5 and 6
5.6 This Chapter and the following Chapter focus on the specific factual
issues arising in relation to geographical areas, addressed in the sequence that
they appeared in the Memorial. Many of the Respondent’s general criticisms
about evidential sources are addressed in Chapter 2, as follows:
• Hearsay evidence, paragraph 2.44;
• Single witness evidence, paragraph 2.45;
• Unsigned witness statements, paragraphs 2.42-43;
• Documents emanating from Croatian official bodies, paragraphs
2.55-57.
(c) The ICTY Case Law
5.7 Since the preparation of the Memorial, the ICTY has indicted and
tried numerous members of the Serbian political and military infrastructure
for crimes committed against ethnic Croats between 1991 and 1995 in the
territory of Croatia. It is beyond doubt as a consequence of that case law that
there was a joint criminal enterprise orchestrated by the Serbian government
to eradicate the Croat population from significant parts of Croatia. In this
section, the Applicant sets out a summary of the relevant cases to illustrate
the nature and extent of the actions committed pursuant to that policy. The
details of the particular allegations in each relevant geographical location are
considered at the appropriate points later in this Chapter and in Chapte▯r 6.
(d) The Serbian Case Law
5.8 In addition to the findings of the ICTY, the Belgrade District Court
War Crimes Chamber has prosecuted and continues to prosecute individuals
for their involvement in the crimes committed against ethnic Croats in Croatia
during the relevant period. The Belgrade Court has rendered verdicts in cases
concerning the Vukovar massacre at Ovčara Farm and one concerning Slunj
Volume 5.indd 144 12/14/2010 2:30:26 PM 145
1
in Kordun. All resulted in convictions for war crimes, the details of which
are considered in the relevant sections below. In addition, there is an ongoing
2
prosecution of 14 individuals for war crimes in Lovas, Eastern Slavonia. The
indictment alleges that the “parties to the conflict were the JNA forces with
3
otherarmedgroupsundertheircommandandcontrol”. Sixoftheaccusedwere
members of a volunteer armed group, “Dušan Silni”, four were local civilian
and military leaders, and four were members of the TO then subordinated to
the 2 Proletarian Guards Motorised Brigade of the JNA. All were said to
have acted in concert in committing atrocities in Lovas, including killings and
torture. The details of the allegations are again set out in the relevant section
below.
(e) Additional JNA Documents
5.9 The Applicant notes that the Respondent does not comment on or
specifically dispute the Applicant’s assertions that the JNA was involved in
the attacks on the villages and towns of Eastern Slavonia. The Respondent
does, nonetheless, assert that there can be no attribution of genocidal intent to
the Serbian state.
5.10 SincepreparingtheMemorial,theApplicanthasobtainedanumberof
significant documents originating from the JNA which reinforce the conclusion
thattheattacksinEasternSlavoniawerepartofacoordinatedplantoeradicate
the Croat population from the region, emanating from the Serbian state and
carried into effect by the JNA, in coordination with the TO and paramilitary
4
forces. The documents repeatedly refer to the capturing of areas, followed
by a “mop up” of the terrain, and the “cleansing” of villages. The orders 6
also refer to an objective of preventing “possible retreat of Ustasha forces”
by blocking roads, thus evidencing an intention to “create preconditions for
8
total destruction of the Ustasha forces.” The terminology used is not only
1 Vujović et al, KV 4/2006; Sireta et al, KV 9/2008; Pašić, KV 4/2007 (see also the Supreme
Court of Serbia decision in the same case: Kz I r z 2/08).
2 Devetak et al, Indictment, 28 November 2007.
3
4 Ibid..
Operational Group South Command, Decision to Continue the Attack Operation Vukovar,
15 October 1991, Annex 68; Operational Group South Command, Decision of Colonel Mile
Mrkšić, 18 October 1991, Annex 69; Operational Group South Command, Decision to Continue
the Attack Operation Vukovar, 29 October 1991, Annex 70; 1 stProletarian Motorised Guard
st
Division Command, Order for Combat of the 1 PGMD Artillery Commander, 29 October
1991, Annex 71.
5 See, for example, Operational Group South Command, Decision to Continue the Attack
Operation Vukovar, 15 October 1991, Annex 68; Operational Group South Command,
6ecision to Continue ste Attack Operation Vukovar, 29 October 1991, Annex 70.
See, for example, 1 Proletarian Motorised Guard Division Command, Order for Combat of
the 1stPGMD Artillery Commander, 29 October 1991, Annex 71.
7 Operational Group South Command, Decision to Continue the Attack Operation Vukovar,
15 October 1991, Annex 68.
8
Operational Group South Command, Decision of Colonel Mile Mrkšić, 18 October 1991,
Annex 69.
Volume 5.indd 145 12/14/2010 2:30:26 PM 146
inconsistent with legitimate military targeting, but is also demonstrative of
an intent to destroy the entirety of the local Croat population by whatever
means necessary. That intent was manifested in coordinated action by JNA,
TO and paramilitary groups: one order entitled “Decision to continue the
attack operation Vukovar”, issued on 29 October 1991 by Mile Mrkšić,
st
refers to “Assignment for the units” before listing “JOd-1 formation: 1 mtb
… Leva Sudoperica to Petrova Gora, Volunteers’ Company Novi Sad, one
tank M-84…, part of TO… continue the attack and in coordinated action with
JOd-2 with the insertion of forces crush the Ustasha units in ‘Cvetno naselje’
and ‘Pionirsko naselje’ … use the auxiliary forces to crush the Ustasha forces
in the area of the housing estate…”. 9
5.11 The intent in the documents is corroborated by the evidence of JNA
soldiers serving in Vukovar. For example, J.Đ. served in the JNA in
1991. He recalls receiving a lecture on strategy and a short tactical training
session on behaviour at the front line: “The officers told us again that Ustashas
in Croatia committed horrible crimes, massacres and rapes and we had to
fight them for this reason. Here, every squad obtained guide from the lines
of the Serbs from Slavonia. My group was assigned a Serb from Bogdanovci.
He told us how Ustashas had evicted him from his house and set it on fire,
and that the ‘pest should be killed off’ by all means necessary.” 10 Similarly,
th
a “Plan of measures and activities in the units of the 134 light brigade on
developing motivation and determination of units, soldiers and commanders
for the execution of combat missions” approved by Lt Col Dražić referred
to the need to “develop wish for revenge, hatred towards the enemy”. The
“methodology” identified included “When talking about the enemy use words
such as: genocide, Ustashe, murderers of children, butchers, mercenaries,
unorganised mob, traitors etc.” The “executing authority” was identified as
“company commanders, commanders of autonomous platoons and all other
commanders during their contacts with soldiers and commanders”, to be
assisted by “commanding staff of brigade, assistant to the brigade commander
11
for moral education”.
(f) Exhumation Data
5.12 In Annexes 164-167 to the Memorial the Applicant set out the
information then available about bodies which had been exhumed from
numerous mass graves. Since that data was prepared, nearly 10 years ago,
many more bodies have been located and exhumed. Annex 43 to this Reply
sets out a summary of all the bodies which have been exhumed from locations
9 Operational Group South Command, Decision to Continue the Attack Operation Vukovar,
29 October 1991, Annex 70.
1 Witness Statements of J.Đ., Annex 12.
1 Plan of Measures and Activities in the Units of the 134th Light Brigade on Developing
Motivation and Determination of Units, Soldiers and Commanders for the Execution of
Combat Missions, Annex 80. See further, Chapter 3.
Volume 5.indd 146 12/14/2010 2:30:26 PM 147
which were the subject of detailed analysis in the Memorial. In addition,
bodies have been exhumed from many locations in Eastern Slavonia, Western
Slavonia, Kordun and Lika, Banovina or Dalmatia which were not the subject
of detailed analysis in the Memorial: seeAnnex 44. TheApplicant relies upon
thesefurthersitesasshowingthecontextandbreadthofthekillingscommitted
by the Serbian forces.
5.13 Annex 46 sets out the function of the various participants (Croatian,
Serbian and international) in the exhumation process which has given rise
to the data contained in Annexes 43 and 44. Each exhumation has been
carried out pursuant to an Order of the competent County Court, following an
investigation based on evidence collated by the Count State Attorney’s Office:
see Annex 46. Samples of the data collected during the exhumation process
appear atAnnex 45.
(2) te n j a
5.14 At the outset of its response on Tenja, the Respondent sets out an
inaccurate and incomplete summary of the Applicant’s case: Counter-
Memorial, paragraph 659. It entirely ignores the serious bodily and mental
harm caused to Croats through arbitrary arrests and torture (paragraph 4.27);
the deliberate infliction on Croats of conditions of life designed to bring
about their physical destruction, including withholding medication from
Croat patients (paragraph 4.23), compelling Croats to undertake forced
labour (paragraph 4.25), restriction of movement (paragraph 4.26), listing all
Croatian residents, recording their sex, age, and other statistics in order to
search their houses under the pretext of looking for weapons (paragraph 4.24)
and forced exile of the Croat population (paragraph 4.30). Since the Memorial
wasprepared,theApplicanthasobtainedupdatedexhumationdataforTenja. 12
This data confirms that 4 bodies have been exhumed from various sites in the
area (not including those bodies removed from Tenja and buried at other sites,
e.g. Ćelije, Orlovnjak).
5.15 The Respondent asserts that the Applicant’s witness statements “do
not support the Applicant’s claims”, because only four witnesses have direct
knowledge of murders and each of them only about one murder (Counter-
Memorial, paragraph 661). That is a misleading summary of the Applicant’s
evidence: Z.M. refers not to one, but to six killings: Stevo Bačić,
Mato Mikolaš, Ivo Prodanović, Joža Božičević, Matko Nađ and a man known
as ‘Herceg’. 13 The Applicant specifically referred to this at paragraph 4.28 and
footnote 32 of the Memorial.
5.16 In addition, a number of witnesses describe numerous Croats being
12
See List of Exhumed Bodies prepared by the Directorate for Detained and Missing Persons,
Annex 43. See further, paras. 5.12-13, supra.
13 Memorial, Annexes, vol 2(I), annex 15.
Volume 5.indd 147 12/14/2010 2:30:26 PM 148
taken away and not being seen subsequently. L.R., a TO member in
Tenja, gives an account of five Croats (A.H., the P. couple, ‘M’
the postman, and a 25 year old man) being beaten whilst being transported
in a truck. He asked the man who was beating them where he was taking
them and was told “to Borovo Selo where they would be exchanged”. L.
R. did not see the five Croats again. Đ.B., who guarded a jail in
the cinema hall in Tenja, corroborates R.’s account: he describes seeing
H., the P. couple, ‘M’, the two V. brothers, M.C.
and K.K. at the jail one day, but missing the next. Đ.B. also
refers to personally burying 5 or 6 killed persons at the Ćelije cemetery, after
their bodies had been found dead in the canal near Topolik, wrapped in black
nylon bags and transported by tractor. Equally, I.I. describes nine
named people being taken and “probably killed”: M.N., J.Š., J.M.,
a man whose surname was B., M.M., A.G. and
Đ.K. The Respondent is accordingly wrong to refer to his statement
as containing only a ”general allegation” in relation to people buried in the
cemetery (Counter-Memorial, paragraph 661).
5.17 Since the Memorial was prepared, the Applicant has obtained further
evidence corroborating the accounts of the witnesses relied upon in the
Memorial. P.B. was the Assistant Pathologist in Tenja from July
to 31 December 1991, as a result of which he examined the bodies of 59
deceased persons. He kept a diary noting the time and date of death of all
bodies he examined and, for those who died a violent death, sketches. He
gives the following evidence: 17
• On 8 July 1991 he was called by Jovan Rebrača to go to the cinema
courtyard to inspect two bodies, which he recognised to be Đuro Kiš and
Antun (Ante) Golek. He concluded that they had died a violent death at
a different location and had been moved subsequently. Đuro Kiš had 3
entry gunshot wounds on his back in parallel position from right to left
with exit wounds in the abdomen. The wounds were probably caused by
an automatic weapon. Antun Golek had a gunshot wound to the head and
an amputation of the lower left leg, attached only by skin. P.B.
submitted his record of the inspection to the Registrar’s Office in Tenja and
informed the duty investigative judge in Osijek by telephone of the event.
He was then ordered by Jovo Rebrača to remove the bodies, which he did
with the assistance of M.M. The bodies were taken in the first
instance to the courtyard of the house of Đuro Kiš’s mother in the Pušinci
area of Tenja.
• On 16 July 1991 P.B. received a call from the Militia Station to
14 Memorial, Annexes, vol 2(I), annex 17.
15 Memorial, Annexes, vol 2(I), annex 18.
16 Memorial, Annexes, vol 2(I), annex 11.
1 Witness Statements of P.B., Annex 5.
Volume 5.indd 148 12/14/2010 2:30:26 PM 149
come and examine a body in the cinema’s courtyard. He identified the body
as being Mato Nađ, whom he had known personally. The body was face
down, with four gunshot wounds: one under the left arm; one on the right
side at the level of the ninth rib; one on the right side at the level of the fifth
rib; one to the back of the head. All but the head wound had exit wounds
to the front side of the body, whilst the bead shot had an exit wound at the
left side of the frontal bone. The first three wounds were probably caused
by shots from an automatic weapon, probably a rifle, whilst the shot to the
back of the head was most likely from a pistol.
• On 18 September 1991 at approximately 01:00 hours, Radoslav Podbarac
came to wake P.B. to ask him to examine a body in the village
centre which had been killed by ‘a stray bullet.’ The body was at the
crossroads of Sveta Ana Street and Vlatko Maček Street. P.B.
recognised it as the body of Stevo Bačić. The body was lying face down
in the street and in the left hand there was a handkerchief drenched with
clotted blood. On examination, the body had broken nose cartilage, and
haematoma on the left side of the back, measuring approximately 4cm x
15cm, caused most likely by a hard, blunt object. There were two gunshot
wounds to the head. One entered the right temple with an exit would to the
left temple. The second was to the right side at the back of the head. The
body was still warm, indicating that death had occurred during the past 2
hours. Two shells from a 7.65mm calibre gun, and one unfired bullet of the
same calibre, were found in the vicinity. It was known that only the Serbian
Police had guns of that calibre during that time in Tenja.
• On 25 September 1991 P.B. received a call from the Militia
Station, which was at that time located behind an old school building. He
was told to come there as there was a body behind the school, near the
gym. He arrived at the Station and was told by the officer on duty, Slavko
Babić, that the body was behind the gym. P.B. recognised the
body as that of Josip Hodak., a.k.a. ‘Ličanin’. On examination, the body
had one gunshot wound to the head with an entry would by the right ear
and an exit wound at the left ear. The injury was caused by a 9mm calibre
gun, possibly a pistol.
• P.B. also examined the body of Mato Mikolaš, who was found
in the attic of his (Mikolaš’s) house. The body was hanging on a rope with
multiple wounds, including explosive wounds caused by hand grenade
fragments, gunshot wounds, stab and cutting wounds.
• P.B. examined a number of people killed at Orlovnjak village-
farm (a short distance from Tenja), including Mato Šklebek and Emil
Dujmović, both of whom had gunshot wounds to the back, probably from
shots fired by a pistol. He conducted the examinations on 7 October 1991,
after Orlovnjak had been captured.
Volume 5.indd 149 12/14/2010 2:30:26 PM 150
5.18 P.B. created a list of the persons whose bodies he had
examined whilst coroner and had tried to submit this to the Registrar’s Office
in January 1992 so that he could be paid. He was told that he should remove
the names of persons of Croatian ethnicity from the list, but refused to do so
and as a consequence never resubmitted the list, or received payment.
5.19 Having inaccurately summarised much of the Applicant’s evidence,
the Respondent then fails to mention, even less dispute, the Applicant’s
description of Serbian paramilitary and JNA activities in the region, or their
role in the attack on the village, as set out in the Memorial, paragraphs 4.21,
4.22 and 4.29. This is a critical failure. Since the Memorial, the Applicant
has obtained a statement taken in 1995 from M.M., who completed
compulsory military service in the JNA between 15 June 1991 and 12 May
1992. He was stationed in Osijek and was aware that his units had participated
in combat actions in Tenja, Ernestinovo, Laslovo and Tordinci. 18
(3) D a l j
5.20 As before, the Respondent’s summary of the Applicant’s case, at
paragraph 665 of the Counter-Memorial, is inaccurate and incomplete. It does
not refer to the numerous ways in which the Serb forces deliberately inflicted
on Croats conditions of life designed to bring about their physical destruction,
through the means of forced labour, house arrests and random acts of violence
(paragraph 4.35). The local Catholic Church was completely destroyed
(paragraph 4.35). The Croat population was banished from the area and the
people were forced to sign statements relinquishing all rights to their property
(paragraph 4.37). Thereafter, the Respondent frequently misrepresents the
evidence relied upon by theApplicant.
5.21 The Respondent asserts, at paragraph 667, that “From the Applicant’s
description of the events in Dalj on 1 August 1991, it is obvious that an
armed conflict took place in this village, with the Croatian forces constituting
one side in that conflict.” The suggestion that the actions described in the
Applicant’s evidence are explicable as being part of a legitimate armed
conflict is misleading and ill-conceived. The Applicant’s evidence filed with
the Memorial, and the further evidence obtained subsequently, makes it clear
that the sequence of events in Dalj was as follows:
• On 1 August 1991 the JNA and paramilitary groups attacked the
PoliceStation,withtheparamilitaryforceshavingoccupiedallthe
houses in the surrounding area. JNA members used a megaphone
to call to the occupants of the Police Station saying “Come on
Ustasha,surrender.You’llgetafairtrial.”Atankwasthenusedby
the JNA to fire on the Police Station. At least two police officers
who had surrendered were nonetheless killed by the Serb forces.
1 Witness Statements of M.M., Annex 16.
Volume 5.indd 150 12/14/2010 2:30:27 PM 151
M.D. had been captured and was sent by the Serb forces
to outside the Station to tell others to surrender. He was unarmed
and in obvious distress. Having passed on the message, D.
turned and walked back towards the Serb forces, whereupon
he was shot by a bullet coming from the direction of the Serb
forces. M.L., whose full evidence is considered further,
infra, recalls collecting D.’s body from outside the Police
Station. Subsequently, a second officer, believed to be J.
G., left the Police Station with the intention of surrendering,
holding a white cloth. The officer was shot several times and fell
to the ground. J.Č. escaped the scene but was subsequently
captured, before being taken to the prison at the Headquarters of
the TO in Dalj, where he saw different paramilitary forces from
Serbia from the village of Prigrevica, whose commander was
called Nikola Puvača or Puača. Č. was then physically abused
whilst detained. He also recalls S.P. being held captive
at the same time as him, but being released with an obligation to
report daily. Č. subsequently learned that P. had been taken
by Vaso Glodić and Nikola Puača the day he was released, and
shot in the head at the Orthodox cemetery before being burned.
Č. as subsequently one of the prisoners exchanged on 15
August 1991, shortly prior to which Željko Ražnatović had come
to the detention centre and told Č. and others that they would
be exchanged. The Respondent is further critical of the absence
of any “credible support” for the claims that MUP and ZNG
members were executed after they surrendered: paragraph 667.
Again, theApplicant has obtained further evidence corroborating
the evidence cited in the Memorial. J.Č. was a reserve
police officer in Dalj at the time of the attack on the village, and
the only survivor of the attack on the Police Station. He recalls
that prior to the attack on the Police Station, the local Serbian
population was armed by the JNA, with Č. observing trucks
coming into the village laden (evident from their tyres) and
23
leaving un-laden. The JNA had also established a checkpoint
outside the village, between Dalj and Borovo Selo. Č. and
a number of others were in the Police Station at the time the
attack commenced. Serbian Militia Commander, Ž.Č.,
1 Witness Statements of J.Č., Annex 7.
20 Witness Statements of M.L., Annex 14.
2 Witness Statements of J.Č., Annex 7.
22
23 Ibid..
Ž.Č., Commander of the Dalj Militia Station, also gives a detailed account of
occasions on which weapons were supplied to Serb forces in Dalj by Serbia, including from
the Serbian village of Prigrevica. Jovo Ostojić was the principal organiser of the weapons
acquisition in 1991, and was a member of the Serbian National Renewal. He also recalls
weapons being obtained by boat from Kamarište and distributed to Serbs in Dalj during June
and July 1991: Witness Statement of Ž.Č., Annex 8.
Volume 5.indd 151 12/14/2010 2:30:27 PM 152
subsequently observed that the Police Station was “destroyed
beyond use.” 24
• After the 1 August 1991 attack, Croat civilians tried to flee
Dalj, but many were forced to return and assist with collecting
and burying the bodies of those killed in the attack. D.
P. states that he had initially tried to flee with his family
when the attack commenced on 1 August 1991, but was stopped
from doing so by JNA members near the train station. They were
then taken, with others, by bus to Bijelo Brdo on 2 August 1991,
atwhichpointSerbforcesseparatedtheyoungmenfromtheolder
men, women and children. Some of the men were subsequently
returned to Dalj in the bus, where approximately ten of them were
separated out, including D.P., R. and Ž.
L., D.P., D.P., A.A., M.
L., T.K., and A.R.. Armed men were
present at this time, including Zoran Čalošević, alias Fafrika, and
Đorđe Čalošević, alias Briga or Đoko-Briga. The men were taken
to the Police Station in Dalj, where A.A. had to drive
a tractor and trailer. They were then required to collect bodies
from various sites around Dalj in the trailer, before taking them to
the Catholic cemetery. D.P. recalls the following
bodies:
- Đuro Butorac, lying in front of the Police Station in (what
is now known as) Ivan Horvat-Bećar Street, and another
body lying in the canal along the road;
- Josip Glibušić;
- Several corpses in the cellar of the Police Station;
- Zdravko Kovčalija, along with 3-4 other persons, in the
courtyard of a house;
- Stjepan Lijić, known to be a carpenter, found dead in his
house;
- Goran Mihaljević, found in a coffin at the Orthodox
cemetery (the body of Slavko Putnik was also found in
a coffin at the Orthodox cemetery and was taken to the
mortuary);
- Andrija Ripić and other members of the Ripić family,
24
Witness Statement of Ž.Č., Annex 8.
2 Witness Statements of D.P., Annex 20.
Volume 5.indd 152 12/14/2010 2:30:27 PM 153
found in the courtyard of their home;
- Several corpses in the Elementary school, “Božidar
Maslarić”, which had lots of open wounds. Four bodies
found in the hallway were naked, and he also recognised
the body of Josip Kemenji in the hallway, with his face
disfigured;
- Two bodies at the bakery in BJ Jelačić Street, but these
were taken by the funeral company, Ukop from Osijek,
rather than being taken to the Catholic cemetery.
26
M.L. corroborates D.P.’s account,
having himself been one of the 10 men separated out in Dalj.
He was also forced to assist with collecting the bodies, fearing
for his life had he refused to do so. He recalls carrying corpses
from the courtyard and the Police Station, together with D.
P. and T.K.. The body of Josip Glibušić, a
police officer, had a bloody gunshot to his head and injuries to
the abdomen area which looked like gunshots. L. also recalls
that he found the body of Stjepan Pavić lying face down with
visible blood staining on the body and around it. As instructed
by Đoko-Briga (Đorđe Čalošević), A.A. drove the
trailer to the Catholic cemetery. On the way, they stopped at the
Elementary school, where, as described by P., several
naked male bodies were found. From the scene, L. assumed
their throats had been slit. L. also corroborates P.’s
account of finding Josip Kemenji severely disfigured, with the
right side of his face crushed and his throat slit. Đoko-Briga
made the others take the bodies to the Catholic cemetery, holding
L . and M.I. hostage until they returned. L. was
subsequently physically assaulted whilst in custody and, before
being released with a reporting requirement, was told by Serb
forces that he would be killed if he told anyone about what had
happened. Upon reporting to the TO Headquarters the next day,
L. was again beaten by a man known as Kalabić, and Savo
Glodić. He was thereafter required to report twice a day, every
day, for approximately 40 days. He was also required to carry out
forced labour, along with others.
• On 3 August 1991 the SAO SBWS Militia Station was
established in Dalj, at the former Culture Centre, next to the TO
Headquarters. 27
26 Witness Statements of M.L., Annex 14.
2 Witness Statement of Ž.Č., Annex 8.
Volume 5.indd 153 12/14/2010 2:30:27 PM 154
• On 21 September 1991 Arkan visited the Militia Station for the
first time: 2 detainees were released on his orders, and another 11
weretaken.Theirbodiesweresubsequentlyfoundatthecemetery
28
in Ćelije.
• On 4/5 October 1991 Arkan visited the Militia Station again.
Ž.Č., the Militia Station Commander, records Arkan
coming with a silenced Heckler-Koch handgun on the evening of
4 October 1991 with a large number of his troops and shooting
most of the prisoners detained there. The 3 who were not killed
were required to clean the room and load the bodies onto a truck.
ThebodiesweresubsequentlytakentotheDanube,alongwiththe
3 survivors. Silenced gunshots were subsequently heard from the
location. Č. wrote a report of the incident, listing the names
29
of some of the detainees.
5.22 The Applicant’s evidence clearly documents that Croatian civilians
were targeted and killed by the Serb armed forces during the assault on Dalj:
see, for example, the account of H.S., who saw her husband, I.
S. shot dead as he checked on damage to their house. She also describes
her (civilian) house being shot at and having an explosive device thrown at
it. Those are not actions explicable by a legitimate armed conflict, but are
evidence of the targeting of a civilian population, as alleged by theApplicant.
ThesuggestionthattheevidencerelieduponbytheApplicantcanbeexplained
by the occurrence of an armed conflict is not credible.
5.23 The Respondent also makes a number of assertions in paragraph 667
to the effect that the bodies seen by the witnesses relied on by the Applicant
cannot be identified, and their cause of death is unknown. This overlooks the
statement, referred to at paragraph 4.33 of the Memorial, made by Serb forces
during negotiations on 13 August 1991 confirming that 56-57 Croats had
28On21September1991,membersofArkan’sunitstook11imprisonedsoldiers/civiliansfrom
the Dalj Militia Station: Ivan Zelember, Zoran Anđal, Čedomir Predojević, Dražen Štimec,
Željko Filipčić, Darko Kušić, Ivan Forjan, Pavao Zemljak, Vladimir Zemljak, Pavle Beck and
Haso Brajić : see Official Note Concerning Hand-over of Prisoners from Dalj Police Station,
23 September 19 91, Annex 60. Their remains were subsequently found at the cemetery in
Ćelije: Annex 43 – List of Exhumed Bodies for Sites Referred to in the Memorial.
2 Witness Statement of Ž.Č., Annex 8. Č. listed the following persons: Zvonko
Mlinarević, Ivan Tomić, Josip Balog, Zlatko Rastika, Josip Mikić, Rudolf Jukić, Vinko Oroz,
Pero Rašić, Janoš Sileš, Stanislav Stmerčki, Ivica Krkalo, Tibor Sileš, Danijel Tomičić, Martin
Banković, Mile Grbeša. The Official Note Concerning Incidents at Dalj Police Station and
Acknowledgment of Handover, 5 October 1991, Annex 64, list the following names: Zvonko
Mlinarević, Ivan Tomičić, Josip Balog, Zlatko Rastija, Josip Mikec, Rudolf Jukić, Vinko
Oroz, Pero Rašić, Janoš Šileš, Stanislav Strmečki, Ivica Krkalo, Tibor Šileš, Danijel Tomičić,
Martin Banković and Mile Grbešić. Their bodies were subsequently thrown into the Danube.
The names identified in the above documents correlate with the names listed by the ICTY in
Annex 1 to the Milošević Indictment.
30 Memorial, Annexes, vol 2(I), annex 22.
Volume 5.indd 154 12/14/2010 2:30:27 PM 155
been killed in Dalj. TheApplicant also notes that the Respondent is critical, at
paragraph 667, of the absence of any detail about the identities of the bodies
at the Catholic cemetery, referred to by the witness H.S. Since the
Memorial was prepared, theApplicant has obtained updated exhumation data
31
for Dalj. This data confirms that 78 bodies have been exhumed from various
sites in the area, providing details of names, father’s names, places and dates
of exhumation.
5.24 At Easter 1992, Zoran Čalošević was observed by the witness, Ž.
Č., giving orders that the remaining non-Serb population of Dalj would be
displacedandbanished,inaccordancewiththeallegationssetoutatparagraph
4.37 of the Memorial (the substance of which is not directly challenged by the
Respondent). Goran Hadžic and Arkan were also involved in this process. The
property of the displaced persons was seized and managed by a committee
established within Dalj for that purpose. 32
5.25 Having misrepresented the available evidence, the Respondent does
not then deny that the JNA was involved in the attack on Dalj, and that in doing
so, it was reinforced by paramilitary Serb formations fromVojvodina (Serbia),
as asserted at paragraph 4.32 of the Memorial. Moreover, the evidence of
Ž.Č., himself a militia member, makes it clear that Goran Hadžić,
who was the de facto leader of the SAO SBWS in late August 1991, was
visiting Belgrade regularly for meetings with Slobodan Milošević and the
Serbian government, in order to consult them in relation to activities in the
SAO SBWS area. 33
5.26 The Respondent correctly observes that crimes in Dalj were included
among the charges in the indictment against Milošević but asserts that the timing
of the offences does not accord with the allegations made by the Applicant
(Counter-Memorial, paragraph 670). The Applicant does not rely upon the
Milošević Indictment for anything other than context, but it considers that
the Respondent’s assertion is factually misleading and accordingly ought to
be corrected. The Memorial deals with events in Dalj between 1August 1991
and 18April 1992. The ICTYproceedings concern alleged crimes in the same
35
period. The allegations against Milošević included:
“34. From on or about 1 August 1991 until June 1992, Slobodan
Milošević, acting alone or in concert with other known and unknown
31
See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
paras. 5.12-13, supra. See also the detail provided by Marcikić, Kraus and Marušić in “Civilian
Massacre in Dalj”, Croatian Medical Journal, 1992, Vol 33, War Supplement 1, 29-33, Annex
101.
3 Witness Statement of Ž.Č., Annex 8.
33 Ibid..
34 See further, Chapter 2, paras. 2.25-33; Chapter 9, paras. 9.31-32.
3 Prosecutor v. Slobodan Milošević, Case IT-02-54-T, Second Amended Indictment, 27 July
2004.
Volume 5.indd 155 12/14/2010 2:30:27 PM 156
members of a joint criminal enterprise, planned, instigated, ordered,
committed, or otherwise aided and abetted the planning, preparation,
or execution of the persecutions of the Croat and other non-Serb
civilian populations in the territories of the SAO SBWS...
35. Throughout this period, Serb forces, comprised of JNA units, local
TO units from Serbia and Montenegro, local and Serbian MUPpolice
units and paramilitary units, attacked and took control of towns,
villages and settlements in these territories... After the take-over, the
Serb forces in co-operation with the local Serb authorities established
a regime of persecutions designed to drive the Croat and other non-
Serb civilian population from these territories.
36. These persecutions were based on political, racial or religious
grounds and included the following:
(a) The extermination or murder of hundreds of Croat
and other non-Serb civilians, including women and elderly
persons, in Dalj, Erdut, Klisa, Lovas, Vukovar …”
50. In September and October 1991, the SerbTO forces and Militia of
the SAO SBWS arrested Croat citizens and kept them in a detention
facility in the police building in Dalj. On 21 September 1991, Goran
Hadžić and Željko Ražnatović visited the detention facility and
ordered the release of two of the detainees. Members of the TO of
the SAO SBWS led by Željko Ražnatović shot eleven detainees and
buried their bodies in a mass grave in the village of Ćelija.… 36
51. On 4 October 1991, members of the TO of the SAO SBWS led by
Željko Ražnatović entered the detention facility in the police building
in Dalj and shot twenty-eight Croat civilian detainees. The bodies
of the victims were then taken from the building and dumped into
the nearby Danube River. … 37[the incident described by the witness,
Ž.Č. 38]
53. On 9 November 1991, members of the TO of the SAO SBWS led
by Željko Ražnatović and members of the Militia of the SAO SBWS
36 The names of the victims are set out in Annex 1 to the Indictment: Zoran Anđal, Pavle
Beck, Haso Brajić, Željko Filipčić, Ivan, Forjan, Darko Kušić, Čedomir Predojević, Dražen
37imec, Ivan Zelember, Pavao Zemljak, and Vladimir Zemljak.
The names of the victims are set out in Annex 1 to the Indictment: Josip Balog, Martin
Banković, Mile Grbešić, Rudolf Jukić, Ivica Krkalo, Josip Mikec, Zvonko Mlinarević, Vinko
Oroz, Pero Rašić, Zlatko Rastija, Tibor Sileš, Janos Sinaš, Stanislav Strmečko, Ivan Tomičić,
Danijel Tomičić, Erne Baca, Elvis Hadić, Iles Lukač, Andrija Maksimović, Franjo Mesarić,
Pero Milič, Đorđe Radaljević, Karlo Raić, Pavo Šarac, Mihajlo Šimun, Ranko Soldo, Marinko
Somodvorac, and Mihaly Tollas.
38 Witness Statement of Ž.Č., Annex 8.
Volume 5.indd 156 12/14/2010 2:30:27 PM 157
arrested ethnic Hungarian and Croat civilians in Erdut, Dalj Planina,
and Erdut Planina and took them to the training centre of the TO in
Erdut where twelve of them were shot dead the following day. … The
bodies of eight of the initial twelve victims were buried in the village
39
of Ćelija and one victim was buried in Daljski Atar. …
54. On 11 November 1991, members of the TO of SAO SBWS, under
the command of Željko Ražnatović, arrested seven non-Serb civilians
in the village of Klisa [a small village between Tenja and Dalj]. Two
of the detainees who had Serb relatives were released. The remaining
five civilians were taken to the TO training centre in Erdut.After their
interrogation, the victims were killed and buried in a mass grave in
the village of Ćelija. …40
…
64. Serb military forces, comprised of JNA, TO and volunteer units
acting in co-operation with local and Serbian police staff and local
Serb authorities, arrested and detained thousands of Croat and other
non-Serb civilians from the territories specified in the following short-
and long-term detention facilities: …
(j) Police buildings and the hangar near the railway station
in Dalj, SAO SBWS run by the JNA and TO, hundreds of
detainees. …
(l) Territorial Defence training centre in Erdut, also referred
to as “Arkan’s” military base, SAO SBWS, run by members
of the TO and “Arkan’s Tigers”, approximately fifty-two
detainees.”
(4) be r a k
5.27 The Respondent’s summary, at paragraph 672, of the Applicant’s
case is factually inaccurate and incomplete. It is not correct that theApplicant
alleged 4 cases of rape committed by the “White Eagles” paramilitary group.
Three of the rapes were not alleged to have involved the “White Eagles”
(although one was said to involved a Serbian police officer). One victim,
42
P.B.*, described being subjected to a multiple and prolonged rape
by numerous JNA reservists. In the Memorial, it was incorrectly stated that
39
The names of the victims are set out in Annex 1 to the Indictment: Ivica Astaloš, Josip
Bence, Pavao Bereš, Antun Kalozi, Nikola Kalozi, Nikola Kalozi, Ivan Mihajlev, Atika Palos,
Franjo Pap, Mihajlo Pap, Josip Senaši, and Stjepan Senaši.
4 The names of the victims are set out in Annex 1 to the Indictment: Jakov Barbarić, Tomo
Curić, Josip Debić, Ivan Kučan, and Josip Vaniček.
4 See the witness statement of M.H.*, Annexes, vol 2(I), annex 30.
42 Memorial, Annexes, vol 2(I), annex 35.
Volume 5.indd 157 12/14/2010 2:30:27 PM 158
the rapists were wearing “White Eagles” marks: the correct position is that
they were JNA reservists. The summary then fails to include a number of
references to torture, physical violence and abuse (regardless of age and
gender) (Memorial, paragraphs 4.40, 4.41 and 4.42), forced labour (including
requiring victims to dig their own graves) (paragraph 4.41) and forced exile
of the Croat population involving the forced signing of statements declaring
that they voluntarily gave up their property to the Serb authorities (paragraph
4.46). The killings the Respondent does refer to in its summary were often
preceded by degradation and physical mutilation (paragraphs 4.42-43). Since
the Memorial was prepared, the Applicant has obtained updated exhumation
43
data for Berak. This data confirms that 46 bodies have been exhumed from
various sites in the area.
5.28 Again,atparagraph674,theRespondentmisrepresentstheApplicant’s
case in an apparent attempt to find some basis to be critical of it. The Respondent
asserts that “the Applicant’s allegation that bodies of approximately 44
women, older men and children, who had been detained in the basement of
D.P.’s house, were found in a mass grave is inconsistent with other
facts given by the Applicant in relation to Berak. Namely, 5 out of 10 persons
identified in the mass grave were, according to the Applicant, killed before
30 September, the day when the basement camp was allegedly established.
”The Applicant did not allege that all 44 people from the basement were
subsequently found dead in the mass grave: the Memorial explicitly states that
“Some of their bodies were eventually found in a mass grave…” (paragraph
4.41).
5.29 Similarly, the suggestion at paragraph 675 that “the Applicant failed
to support its allegation about the 44 missing persons with any type of
source” is misconceived where it is the Applicant’s clear case that some of
those missing persons were later discovered in the mass grave, evidenced by
the (undisputed) exhumation record. 44The Applicant has also subsequently
obtained a contemporaneous, record from S.P., the Deputy
Defence Commander of Berak (signed and stamped in his capacity as the head
of Tompojevci municipality) of the 87 persons detained in Berak between
2 October and 13 December 1991, recording many of them as having been
45
killed, raped, taken away or gone missing. The document accords with the
exhumation record for the mass grave, it also listing, for example, Janko
Latković (a civilian) as having been killed (entry 7). The document also lists
5 persons in a group taken away by Serb Forces and 9 others who were killed
or hurt in Berak.
4 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
44ras. 5.12-13, supra.
45 Memorial, Annexes, vol 2(I), annex 167.
List of Persons from the Village of Berak Imprisoned in an Improvised Camp in Berak,
Radićeva 6 in the Period Between 2 October 1991 and 13 December 1991, Annex 98. This
document also corroborates the allegation that Kata Garvanović was killed: see Memorial,
para. 4.40 and Couter-Memorial, para. 674.
4 See also the entries in both documents for A./A.C. and M.M.
Volume 5.indd 158 12/14/2010 2:30:27 PM 159
5.30 Equally, the Respondent asserts at paragraph 674 that the autopsy
reports for many of the bodies lead to the reasonable inference that the deaths
were “linked to combat activities.” The Applicant does not understand the
basis on which this assertion is made. Many of the victims are recorded as
dying an “unnatural, violent death”, with causes including explosive devices,
gunshots and hard, blunt objects. 47Some of the victims were females in their
seventies. The suggestion that they died whilst participating in an armed
conflict is untenable. Moreover, the Respondent has not advanced any positive
evidence of there being an armed conflict or combat activities in Berak at the
relevanttime:itistheApplicant’s(evidenced)casethattherewerenoCroatian
armed forces in the village when it was attacked and, despite JNA attempts
to provoke an armed conflict, there was in fact no resistance (see paragraph
4.40 of the Memorial).Absent any evidence to the contrary, the Respondent’s
assertion is baseless and contrary to the obvious inference to be drawn from a
mass grave containing the bodies of elderly females who had died unnatural
and violent deaths.
5.31 It is of considerable significance that the Respondent does not
challenge large parts of the Applicant’s case in relation to Berak, including
the 10 killings referred to at paragraphs 4.40-42 of the Memorial, and the
assertion at paragraph 4.39 of the Memorial that the JNA was responsible
for arming the local Serb forces or that the JNA was directly involved in the
attack on Berak. The Respondent also does not challenge the specific record
of exhumation for Berak (Annex 167).
(5) b OgDa nOv c i
5.32 The Respondent’s summary typically misrepresents the Applicant’s
case so as to create a basis for criticising it.The summary is factually incorrect
and incomplete. The assertion that the killings the Respondent included in its
summary occurred during the attacks on Bogdanovci is misconceived. Many
of the victims were in fact civilians hiding in the basements of their houses
during the attacks, only to be murdered by grenades which were thrown into
the houses (Memorial, paragraphs 4.49, 4.52 4.54 and 4.55) or killed whilst
trying to flee Bogdanovci (paragraphs 4.50 and 4.51). The Respondent then
fails to refer to instances of torture and harassment (paragraph 4.53) and vast
destruction of sacral objects and Croatian infrastructure (paragraph 4.48 and
4.55). Since the Memorial was prepared, the Applicant has obtained updated
exhumation data for Bogdanovci. This data confirms that 70 bodies have
been exhumed from various sites in the area.
5.33 TheRespondentalsoassertsatparagraph680thatthereisnoevidence
to support the assertion that 84 Croatian civilians were killed or disappeared.
47
48Memorial, Annexes, vol 2(I), annex 167.
See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
paras. 5.12-13, supra.
Volume 5.indd 159 12/14/2010 2:30:27 PM 160
That overlooks the evidence from A.C. that her husband and 60
othermenweretakenandnotseenagain,andtheexhumationofthemassgraves
in Bogdanovci, which now record 22 bodies, 21 of which were identified. 49
5.34 Significantly, and notwithstanding its attempts to undermine the case
presented by the Applicant, the Respondent does not dispute the presence or
role of the JNA in the attack on Bogdanovci, as set out at paragraphs 4.48-55
of the Memorial.
(6) Ša r e n gDa
5.35 The Respondent summarises the Applicant’s case in an incomplete
and inaccurate manner. At paragraph 683(a) it is suggested that there were 4
killings by mortar attack alleged by the Applicant. This overlooks the further
killings of civilians who had been granted permission to exit Šarengrad
during the mortar attack, only to be ambushed by Serb paramilitaries and
killed (Memorial, paragraph 4.58). Similarly, civilians who were trying leave
the area were captured by members of the Serb paramilitary groups and
transported to the concentration camps in Serbia (paragraph 4.59). During
the (undisputed) attack the JNA repeatedly fired at the local Catholic Church
until it was completely destroyed (paragraph 4.57). The suggestion that the
Applicant alleges only “one instance of rape and random beatings” is a gross
understatement of the extent and nature of torture, physical and psychological
maltreatment,humiliationanddegradationvisitedontheremaininginhabitants
of Šarengrad, including detention and forced labour (paragraph 4.60). The
Croats that remained in the village had to wear white ribbons in order to
distinguish themselves (paragraph 4.60). Croatian children were forced to
attend Serbian school, where the education was based on the “Greater Serbian
programme”, write in Cyrillic letters and speak Serbian language (paragraph
4.60). The Respondent then omits to refer to the fact that on 26 March 1992
the remaining Croats were exiled after they were forced to sign statements
that they were voluntarily leaving and were assigning all their property to
the settled Serbs (paragraph 4.61). Since the Memorial was prepared, the
50
Applicant has obtained updated exhumation data for Šarengrad. This data
confirms that 5 bodies have been exhumed from the Catholic Cemetery in
Šarengrad.
5.36 Equally, the assertion of the Respondent at paragraph 685 is ill-
conceived:“EventheApplicant’sdescriptionoftheeventsrevealsthatCroatian
forces were engaged in the fighting in Šarengrad. According to the witness
Ž.M., four out of six victims who were identified by the Applicant
died as a result of a mortar attack.” The fact that victims have died in mortar
attacks is no indication whatsoever that they were engaged in fighting and it
49
50 Memorial, Annexes, vol 2(I), annex 166.
See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
paras. 5.12-13, supra.
Volume 5.indd 160 12/14/2010 2:30:28 PM 161
is not explained how this inference is drawn. As the Memorial makes clear,
mortars were used to attack Šarengrad, killing civilians. Further evidence
obtained by the Applicant confirms that Jule Saračević was killed by a mortar
attack in Šarengrad on 4 October 1991. TheApplicant’s (evidenced) case is,
quite clearly, that the village was “seized … without resistance” (Memorial,
paragraph 4.58). The Respondent has not adduced any evidence to counter
that suggestion.
5.37 The Respondent correctly observes that conduct in Šarengrad was
included in the Indictment of Milošević. The Applicant does not rely upon
the fact of the Indictment in support of its case, but notes that the Respondent
incorrectly states that Milošević was charged with destruction of homes and
property: the actual charge was the crime against humanity of persecutions. 52
5.38 Significantly, and notwithstanding its attempts to undermine the case
presented by the Applicant, the Respondent does not dispute the presence or
role of the JNA in the attack on Šarengrad, as set out at paragraph 4.58 of the
Memorial.
(7) ilOk
5.39 The Respondent misrepresents the Applicant’s case by suggesting, at
paragraph 689(a), that there was a “voluntary exodus” of the Croat population
from Ilok on 17 October 1991. It is very clear from the Memorial that it is
the Applicant’s case that the exodus was forced, and brought about by the
conditions of life for Croat civilians in Ilok, caused by the Serb forces. The
Memorial specifically asserts that “The local Croat leaders were concerned to
avoid the degree of bloodshed that occurred in other areas” (paragraph 4.64)
and that the exodus was “forced” (paragraph 4.66). Since the Memorial was
prepared, theApplicant has obtained updated exhumation data for Ilok. This 53
data confirms that 38 bodies have been exhumed from various sites in the
area.
5.40 Again, paragraph 689(b) of the Counter-Memorial is a gross
minimisation of the extent of the ill-treatment inflicted on the Croat population
ofIlok.Thenotionof“randombeatingsandmaltreatment”doesnotencompass
the random killings of Croats who would not leave their homes (Memorial,
paragraph 4.66), the serious bodily and mental harm caused to Croats, 54
or the deliberate infliction of conditions of life intended to bring about the
5 List of Civilians Fallen in the War of Independence before 17 October 1991, prepared by
Mayor of the town of Ilok Stipan Kraljević, 7 November 1995, Annex 104.
52 Prosecutor v. Slobodan Milošević, Case IT-02-54-T, Second Amended Indictment, 27 July
2004, para. 36(l).
5 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
paras. 5.12-13, supra.
5 See, for example, the Witness Statement of B.K., Memorial, Annexes, vol 2(I),
annex 57.
Volume 5.indd 161 12/14/2010 2:30:28 PM 162
destruction of the Croats that remained in the town, who were exposed to
physical and psychological harassment, molestation, forced labour, constant
robbery and groundless imprisonment (paragraph 4.66-4.70). Croats were
compelled to undertake forced labour for days without any food or any
compensation (paragraph 4.67) and their freedom of movement was severely
curtailed (paragraph 4.70). The witness statement of J.B., dated 23
September 1993, set55out further details of the conditions of life in Ilok after
the mass exodus. J.B. describes being called an “Ustasha whore” on
a daily basis. She also recalls the killing of Ms Lončar, a.k.a. Zika, who was
burned alive in a field: her house was then inhabited by Serbs from Osijek.
Furthermore, the record of Ilok Mayor Stipan Kraljević records a number of
inhabitants of Ilok being killed in the period 1991-1995, several of whom died
56
whilst carrying out forced labour.
5.41 The Respondent notes that Slobodan Milošević was indicted for
deportation or forcible transfer of at least 5000 inhabitants from Ilok, but
again fails to recognise that the actual charge was one of crimes against
humanity. 57
5.42 Again,itisnotablethattheRespondentdoesnotdisputetheinvolvement
of the JNA in the attack on Ilok, and in particular the involvement of the 1 st
Guard Proletariat Mechanised Division, as set out at paragraphs 4.64-66 and
4.71 of the Memorial.
(8) tOmP Oj e v c i
5.43 The Respondent’s summary (Counter-Memorial, paragraph 695) of
the Applicant’s case is again misleading. The Respondent refers to “random
maltreatment” as a purported summary of the allegations of systemic, graphic
and dehumanising ill-treatment of the Croat population of Tompojevci
(Memorial,paragraphs4.77and4.80),thatincludedmartiallawbeingimposed,
movement passes being introduced, and water supplies and electricity being
cut off from the Croatian households, making daily life impossible.According
to the witness I.B.: “We were living like prisoners in our own houses,
as if we were not human. We were living in our village as prisoners in a camp
without any rights at all.” Serbian paramilitaries entered the houses to molest
the inhabitants and threatened to kill them. The local Catholic Church was
completely devastated (paragraph 4.75). On 17 March 1992 the remaining
population was expelled from the village while having to sign a statement that
55
Witness Statements of J.B., Annex 2.
56 List of Civilians Fallen in the War of Independence after 17 October 1991, prepared by
Mayor of the town of Ilok, Stipan Kraljević, 7 November 1995, Annex 105.
57 Prosecutor v. Slobodan Milošević, Case IT-02-54-T, Second Amended Indictment, 27 July
2004, para. 36(k).
58 Memorial, Annexes, vol 2(I), annex 64.
Volume 5.indd 162 12/14/2010 2:30:28 PM 163
they were voluntarily leaving the village and leaving all of their property to
the “SAO Krajina Government” (paragraph 4.80).
5.44 The Respondent also misrepresents the evidence of V.V., by
assertingthathisstatementmakesit“obviousthatCroatianforceswereengaged
in fighting over Tompojevci.” (paragraph 697). V.V.’s statement contains
the following relevant passage: “during the whole period of occupation they
were in Tompojevci, from the 3 rd of September when the population was
evacuated and the Croatian army stayed inTompojevci until 10 thof September
when the Croatian army withdrew towards Ilok, Svinjarevci and Đeletovac
because of the Chetnik impact.After that on the 10 thof September the former
JNA and the local Serbs with the Chetniks from Serbia entered the village.
They state that those Chetniks from Serbia were from Mitrovica and Valjevo
and from the inside of Serbia and the members of the former JNA were from
the composition of the so-called Novi Sad Corpus.” There is no suggestion
of actual armed conflict: on the contrary, the clear inference is that the attacks
on Tompojevci commenced after the Croatian army had left on 10 September
1991.
5.45 TheRespondentthereafterfailstoengagewithmanyofthesubstantive
allegations made by the Applicant, including (significantly) the presence and
role of the JNA in the activities at Tompojevci, as set out at paragraphs 4.74-
76 of the Memorial. That conduct must, therefore, be taken to be admitted by
the Respondent.
(9)b aPs k a
5.46 The Respondent characteristically minimises the allegations made
by the Applicant, by simply omitting key parts of the conduct from its
summary at paragraph 700. The Respondent fails to mention: the causing of
serious bodily or mental harm to the Croatian population through the use of
psychological, sexual and physical violence (Memorial, paragraphs 4.86-91)
which on one occasion led to suicide (paragraph 4.88); deliberate infliction
of conditions of life intended to bring about the physical destruction of the
Croat population, including rapes (paragraph 4.90), and forced expulsion
of the Croats accompanied with forced statements relinquishing their entire
estates to “SAO Krajina” (paragraph 4.93); and destruction of sacral objects
(paragraph 4.92). The Croat population was compelled to undertake forced
labour,requiredtohavespecialpassesandtheirhomesweremarkedwithwhite
ribbons(paragraph4.87-88).Croatianfamilyhousesweresystematicallyburnt
and destroyed (paragraph 4.86). None of this conduct is adverted to, even less
disputed, in the Respondent’s Counter-Memorial. Since the Memorial was
prepared, the Applicant has obtained updated exhumation data for Bapska. 60
59
60 Memorial, Annexes, vol 2(I), annex 62.
See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
paras. 5.12-13, supra.
Volume 5.indd 163 12/14/2010 2:30:28 PM 164
This data confirms that 4 bodies have been exhumed from various sites in the
area.
5.47 The Respondent asserts at paragraph 702 that the Applicant’s
statements “show that in the village of Bapska Croatian armed forces were
engaged in heavy fighting with Serb forces and that both sides had losses.”
This is a significant distortion of the statement of F.K., 61 which
makes it very clear that the few Croatians who took up arms in defence of
Bapska were vastly outnumbered and overcome by the weaponry used by the
Serbian forces. J.K. states that “on 4 October 1991, the JNA started
an artillery attack on the village. With short interruptions, the attack lasted
until 14 October 1991, when tanks of the JNA came to the village. During
the attacks, more than 1,000 missiles of different calibres hit targets in the
village, whereby numerous houses, outbuildings and other buildings were
damaged.” Moreover, the Applicant has recovered a copy of the ultimatum
issued to the residents of Bapska by the JNA on 28 September 1991, which
explicitly states: “Since inhabitants of your village were peaceful and did not
cause any problems for JNA units so far, we believe there will be no problems
63
in the future either. We are demanding the following from you...”. The
Applicant has also obtained official records compiled by the Mayor of Ilok
64
concerning civilians killed in the region during the relevant period. Those
records include entries for: Borislav Sabo, killed on 6 October 1991 by the
JNA at the exit of Bapska towards Šid; Mato Josip Rumberger and Ivan Mijić,
both killed on 14 October 1991 by Serb forces (JNA/army patrol) in Braće
Radić Street; Zdravko Tustonjić, killed on 18 October 1991 by JNA forces at
the entrance of Bapska, when returning from Šid.
5.48 The Respondent correctly observes that conduct in Bapska was included
in the Indictment of Milošević. The Respondent incorrectly states, however,
that Milošević was charged with destruction of homes and property: the actual
charge was the crime against humanity of persecutions. 65An application under
Rule 98bis for judgment of acquittal was specifically refused in relation to this
allegation. 66
61
62 Memorial, Annexes, vol 2(I), annex 74.
Memorial, Annexes, vol 2(I), annex 69.
6 Ultimatum Issued to the People of Bapska, 28 September 1991, Annex 61.
6 List of Civilians Fallen in the War of Independence before 17 October 1991, prepared by
Mayor of the town of Ilok, Stipan Kraljević, 7 November 1995, Annex 104; List of Civilians
Fallen in the War of Independence after 17 October 1991, prepared by Mayor Stipan Kraljević,
7 November 1995, Annex 105.
65
Prosecutor v. Slobodan Milošević, Case IT-02-54-T, Second Amended Indictment, 27 July
2004, para. 36(l).
66 Prosecutor v. Slobodan Milošević, Case IT-02-54-T, Decision on Motion for Judgment of
Acquittal, 16 June 2004, para. 116.
Volume 5.indd 164 12/14/2010 2:30:28 PM 165
5.49 ItisagainnotablethattheRespondentfailstocommentonorchallenge
the involvement of the JNA in the atrocities committed in Bapska, as set out
at, for example, paragraph 4.84 of the Memorial.
(10) t Ov a r n i k
5.50 The Respondent’s summary at paragraph 705 of the Applicant’s
case overlooks several key aspects of the evidence. In particular, it makes no
mentionofcausingofseriousbodilyormentalharmtotheCroatianpopulation
through the use of psychological and physical violence: torture (Memorial,
paragraphs 4.99, 4.101 and 4.106), castration preceding killings (paragraph
4.100); the deliberate infliction of conditions of life intended to bring about
the destruction of the Croat population, including imprisonment (paragraphs
4.99 and 4.101), forced labour, “Serbianisation” of the culture, destruction of
sacral objects and Croatian property (paragraph 4.98). The Croat population
was subjected to restrictions on their movement and when they moved around
the village they had to wear white rags around their arms (paragraph 4.106).
It is also notable that the Serb authorities reached a decision that only 5% of
the Croat population could stay in Tovarnik area and accordingly carried out
mass expulsions (paragraph 4.105). After 95% of Croats were expelled from
the village (December 1991) the newly settled Serbs continued to drive the
remaining Croats out of the village by means of physical abuse and torture,
until there were only 26 Croats left in the village by April 1992 (paragraph
4.106). Since the Memorial was prepared, theApplicant has obtained updated
exhumation data for Tovarnik. This data confirms that 56 bodies have been
exhumed from various sites in the area.
5.51 The Respondent then selectively summarises the evidence of
B.H. 68(at paragraph 707), providing an entirely distorted account
of his recollection. It is apparent from B.H.’s statement that the
Croatians were significantly outnumbered by the Serb forces, whose artillery
and weaponry they could not match. He describes the “second phase” of the
occupation on 27-28 September 1991, during which there was “no organised
resistance”. The Respondent also asserts that the evidence does not support a
general claim that 61 persons were killed in Tovarnik and that some witnesses
do not comment on the manner in which the buried lost their lives (paragraph
708). M.P., a JNA soldier in 1991, states that “There were, in
Tovarnik, corpses lying on a road and in yards. The burial of the dead wasn’t
allowed. I’ll never forget the number of dead people – 48. I counted so many
dead women, children and older men. I saw that killing with my own eyes.” 69
It is very apparent from the context of the statements, in particular that of
67
See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
68ras. 5.12-13, supra.
69 Memorial, Annexes, vol 2(I), annex 81.
Memorial, Annexes, vol 2(I), annex 79.
Volume 5.indd 165 12/14/2010 2:30:28 PM 166
70
M.D., that the people had been killed by Serb forces during the
occupation. Any suggestion to the contrary is entirely un-evidenced by the
Respondent.
5.52 The Respondent correctly observes that conduct in Tovarnik was
included in the Indictment of Milošević. The Respondent incorrectly states,
however, that Milošević was charged with destruction of homes and property:
the actual charge was the crime against humanity of persecutions. 71 An
applicationunderRule98bis for judgment of acquittal was specifically refused
72
in relation to this allegation.
5.53 It is also highly significant that the Respondent does not directly
challenge either the specific evidence of genocidal intent referred to by the
Applicant (see for example, paragraph 4.95, in which it is noted that Milošević
had told his soldiers that their task was to “kill and destroy everything
Croatian”, and paragraphs 4.97-98) or the involvement of the JNA in the
attacks on Tovarnik (paragraphs 4.95, 4.97).
(11) s Ot i n
5.54 The Respondent omits, at paragraph 712, to properly summarise a
number of the key allegations made by the Applicant: the suggestion that
the beatings were random is not borne out by the evidence of a number of
witnesses, who recall systemic and repeated abuse, beatings and torture (see,
for example, Memorial, paragraphs 4.110-112); there were 3, not 2, rapes,
one of which was a multiple rape (see paragraphs 4.110 and 4.113); Croats
were required to carry out forced labour (paragraph 4.114); Croat houses were
marked with white sheets and Croat civilians were required to wear white
ribbons (paragraph 4.114); 73 and Croats were required to have passes in order
to move around while curfew being imposed (paragraph 4.114). The JNA
carried out targeted destruction of the local Catholic Church and Croatian
property (paragraph 4.110). So extensive were the crimes committed in
Sotin that at one point people were unable to go more than 500m from the
area because of the smell of decaying bodies (paragraph 4.112). Since the
Memorial was prepared, theApplicant has obtained updated exhumation data
74
for Sotin. This data confirms that 28 bodies have been exhumed from various
sites in the area.
70 Memorial, Annexes, vol 2(I), annex 83.
71 Prosecutor v. Slobodan Milošević, Case IT-02-54-T, Second Amended Indictment, 27 July
7204, para. 36(l).
Prosecutor v. Slobodan Milošević, Case IT-02-54-T, Decision on Motion for Judgment of
Acquittal, 16 June 2004, para. 116.
73 The witness, O.B., a Serbian national, corroborates the use of white sheets and
ribbons to identify Croats: Witness Statements of O.B., Annex 3.
7 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
paras. 5.12-13, supra.
Volume 5.indd 166 12/14/2010 2:30:28 PM 167
5.55 The Respondent also grossly misstates the Applicant’s evidence,
asserting that Sotin was a village where heavy fighting took place on the basis
that the “fighting lasted from 28 August to 14 October” (paragraph 714). The
Memorial states: “The attack lasted from 29 August to the 14 October 1991
when Sotin was finally occupied. However, during that period no resistance
was offered since the village was threatened with destruction if a shot was
fired. The conduct of the JNA served little military purpose and can only
be explained by a desire to inflict maximum damage on the local Croatian
population.” (paragraph 4.109). Further evidence from a Serbian witness
confirms that there was no resistance by the Croat population of Sotin: M.
O., a Serbian national, was enlisted in the JNA and formed part of the
troops which attacked Sotin. He recalls that “as they advanced along the said
street they encountered no resistance and there was no fighting”.
5.56 It is also highly significant that the Respondent does not directly
challenge either the specific evidence of genocidal intent referred to by the
Applicant (see for example, paragraphs 4.111) or the involvement of the JNA
in the attacks on Sotin (paragraphs 4.108-110).
(12) l Ov a s
5.57 The Respondent’s approach to the Applicant’s case in relation to
Lovas is highly surprising, in light of the fact that the Serbian authorities
are currently prosecuting 14 individuals in the Belgrade District Court for
numerous atrocities committed in Lovas during October 1991, including the
mass killings of 68 civilians. The Respondent nonetheless elects to challenge
details in the witness statements relied upon by the Applicant, without at any
stage conceding that the preponderance of the allegations made therein are
accurate. The Respondent goes so far as to say “The Applicant’s allegation
that, from 19 October until the New Year, 69 Croats were killed is not
supported by any reliable evidence.” The Respondent then immediately notes
“However, fourteen accused are currently standing trial before the Belgrade
District Court for the alleged killing of 68 Croat victims” (paragraph 720).
The Respondent’s approach to the Lovas allegations is typical of its stance on
the factual issues more generally: even when faced with compelling evidence
to the contrary, the Respondent maintains technical and insubstantial criticism
of the case advanced by the Applicant. The weight of that criticism must
be undermined by its repetition in relation to a location where the Serbian
authorities themselves consider there to be a sufficient case to prosecute 14
individuals for war crimes, including the commission of 68 murders.
5.58 The allegations made in the Lovas Indictment concern essentially
the same principal incidents referred to in the Memorial. In particular, the
Indictment alleges that: 76
75
Witness Statement of M.O., Annex 18.
76 Office of the War Crimes Prosecutor, District Court in Belgrade, War Crimes Chamber,
Volume 5.indd 167 12/14/2010 2:30:28 PM 168
• The fourteen accused acted together in the commission of the crimes.
Ljuban Devetak was the de facto leader of Lovas after it was occupied,
and had almost unlimited power. Milan Devčić, Milan Radojčić and Željko
Krnjajić all held significant posts in the local command structure. Miodrag
Dimitrijević, Darko Perić, Radovan Vlajković and Radisav Josipović were
members of the TO, subordinated to the 2 ndProletarian Guards Motorised
Brigade of the JNA. Petronije Stevanović, Aleksandar Nikolaidis, Dragan
Bačić, Zoran Kosijer, Jovan Dimitrijević and Saša Stojanović participated
as members of “Dušan Silni”, a volunteer armed group.
• The crimes were directed against the Croat civilian population of Lovas,
which was unarmed, and carried out at a time when there were no Croat
troops to protect them.
• On 10 October 1991, a group of volunteers organised by Devetak were
armed by the TO and sent to attack Lovas. In an indiscriminate and
unjustified attack, 21 civilians were killed and numerous civilian buildings
were destroyed. The victims were: Mirko Grgić, Mato Adamović,
Danijel Badanjak, Cecilija Badanjak Antun Jovanović, Anka Jovanović,
Katarina Pavličević, Juraj Poljak, Josip Kraljević, Alojzije Polić, Mato
Keser, Josip Poljak, Ivan Ostrun, Drago Pejić, Mijo Božić, Tomo Sabljak,
Vido Krizmanić, Stipe Mađarević, Pava Đaković, Stipe Pejić, and Živan
Antolović.
• After the village had been seized, a new local government was established
and a number of informal orders were issued with the intention of
discriminating against the non-Serb (predominantly Croat) population.
As a result, humiliating and discriminatory measures were introduced,
including marking houses with white towels, white cloths around the
sleeves, forced labour under armed supervision and denial of freedom of
movement. 77Unlawful hauls, arrests and interrogations of civilians were
conducted, resulting in the torturing and mutilating of the victims. Devetak
also ordered numerous killings, including that of Snežana Krizmanić,
in relation to whom he said to Aleksandar Nikolaidis to “take her away,
fuck her and kill her”. Twenty-seven victims were killed on the orders of
Devetak and others. The victims were: Darko Pavlić, Željko Pavlić, Anton
Luketić, Đuka Luketić, Petar Luketić, Alojz Krizmanić, Đuro Krizmanić,
Andrija Devčić, Stipo Dolački, Marko Damjanović, Franjo Pandža, Ivan
Vidić, Stjepan Luketić (all of whom had been held in detention), Slavica
Pavošević, Jozefina Pavošević, Marija Pavošević, Ana Lemunović, Josip
Rendulić, Božo Vidić, Marin Balić, Katarina Balić, Rudolf Jonak, Marija
Fiser, Zoran Krizmanić, Josip Jovanović, Zvonimir Martinović, and Petar
Rendulić.
Indictment against Ljuban Devetak et al., 28 November 2007, Annex 82
7 See, for example, Lovas Community Council, Pass Permitting Movement for Đ.
R., 19 October 1991, Annex 97.
Volume 5.indd 168 12/14/2010 2:30:28 PM 169
• On17October1991,themaleciviliansweregatheredtogetheranddetained,
before being tortured. It was then decided by the accused that the civilians
should be used as human shields in exploring the local area, which was
known to be mined. On 18 October 1991, approximately 50 civilians were
taken to the village outskirts in a column. On the way, Boško Bođanac was
killed because he had been so badly injured by previous beatings that he
was unable to walk. The remaining civilians were forced to walk in a line,
holding hands, shuffling through the clover field, dragging their feet to the
left and right. One of the civilians, Ivica Kraljević, who had previously
been heavily beaten, fell over a mine, triggering a number of explosions.
A number of armed guards opened fire on the civilians. Twenty civilians
were killed by the explosions and gunfire: Marijan Marković, Tomislav
Sabljak, Darko Solaković, Ivan Palijan, Zlatko Panjik, Slavko Kuzmić,
Ivan Sabljak, Mijo Šalaj, Ivan Kraljević, Petar Badanjak, Zlatko Božić,
Antun Panjik, Marko Vidić, Luka Balić, Marko Sabljak, Mato Hodak,
Nikola Badanjak, Ivan Conjar, Slavko Strangarević and Josip Turkalj.
5.59 The allegations in the Memorial and the Indictment are further
supported by the television documentary, “Bloody Grape Harvest”, produced
by the Serbian Network, B92, which compiles a number of graphic and
compelling interviews with witnesses and victims to the atrocities committed
78
in Lovas. One villager, Lovro Gerstner, gave the following description of the
events of 18 October 1991:
“They killed a man, I saw it myself. In front of me, some ten or so
meters, a man fell to the ground, he had been stabbed and he fell to his
knees and said that he cannot go on, one of the Chetniks kicked him,
the men fell into a ditch and he then shot him. I saw it personally,
when he was killed, there was a lot... I said we were not going
to pick grapes, I saw that immediately. We entered the field, they
positioned us diagonally and we had to rake the clover with our feet,
we came there, there the mines were tied to little stakes, they asked us
why we had stopped. We stopped because there were mines in front
of us, and one of the Chetniks pushed Ivo Kraljević and he fell and
the mines exploded. Now, I think not many, very few, even one is too
much, were killed by the mines but those cowards were shooting us in
the back with automatic rifles, I was shot in the leg.”
Ivan Mujkić gives a similarly harrowing account:
“We had to cover the whole width of the field, hold each other hand
and walk down the entire field. Young clover covered the field and
they ordered us to mimic the scythe with our legs while walking.
They kept their distance, the distance from there, on this hill, little
further down the road they had us in their gun sights and shouted that
78
Excerpt of Transcript, “Bloody Grape Harvest”, Serbian Television Documentary (B92
Network), July 2007, Annex 115.
Volume 5.indd 169 12/14/2010 2:30:28 PM 170
they would kill anyone who tries to run away. We reach the middle
of the field where we stopped because we saw the mines. Out of the
corner of my eye I saw a Chetnik approach the first man in the line
and he fell down. As he was falling I threw myself backwards and
then the explosions and shooting started, and we fell to the ground.
When I fell I saw that I was wounded, I swiped with my hand under
me and the hand came out bloody. Next to me was Zlatko Božić, he
was having problems breathing, I asked him if he was all right -yes,
are you -yes, and a few minutes later he was shouting to kill him and
end his suffering a soldier approached him and killed him.”
5.60 Aleksandar Vasiljević, the Serbian Chief of Security in the Federal
Secretariat for National Defence from 1 June 1991 to 5 August 1992, gave
detailed testimony in the Belgrade Military Court in 1999 in relation to
allegations of war crimes in Eastern Slavonia, commenting in particular on
79
Lovas:
“Colonel Petković and his team in Šid provided me with more
extensive data, on 28 October 1991, regarding the acts of paramilitary
squads of “Dušan Silni” and Arkan’s units, the executions in the
villages of Lovas and Tovarnik, which were mainly inhabited by
Croatian population. “Dušan Silni” squad was at the time commanded
by Ljubo Devetak in the village of Lovas. At the same time he was a
commander of the village. I found out that he had sent some civilians
to walk through the mine field. … According to the data I received, the
civilians were forced to go through the mine fields by the members of
“Dušan Silni” squad: Aleksandar Nikolaidis, Zoran Obrenović, Nikola
Vuković, Zoran Kosijer, Dragan Bogić, Kosta Gvozdenov, Ljubodrag
Jelić and Petronije Stevanović. … In addition, Petković informed me
on that occasion that about 70 civilians were executed in the village of
Lovas. … However, his checks established specifically for the area of
Tovarnik that out of 35 people they sent to Tovarnik, only 5 of them
were alive after a week and the rest of them were executed by the
territorial units in Tovarnik, according to his information.
In addition to Petković’s check, he got confirmation of all these data
from lieutenant on a battle ship, Somborac Marin, who was then
serving in security organs of Kumbor and happened to be in the
village of Lovas at the time, where his parents lived … . I learned
about this from Petković; according to my records it happened on
28 October 1991 when I was in Šid and in the afternoon of the same
day I returned to Belgrade to attend a meeting of the coordination
team at the Serbian Ministry of Defense regarding the agreement on
mutual exchange of information about on the situation in the field.
Attendees present in the building of the Serbian Ministry of Defense
7 Witness Statement of Aleksandar Vasiljević, Annex 26.
Volume 5.indd 170 12/14/2010 2:30:28 PM 171
included general Simović Milan, Minister of Defense of the Republic
of Serbia who chaired the meeting; general Đokić, commander of
the Serbian territorial defense; Zoran Sokolović, Minister of Interior;
Zoran Janaćković, who was at the time the Chief of National Security
Service of the Serbian Ministry of Interior; general Kuzmanović from
the Serbian Ministry of Defense and Deputy Minister of the National
Defense of Serbia. … . I informed all the attendees of the actions
and behaviour of paramilitary troops which I learned from colonel
Petković in Šid … warning them that Arkan’s troops also participate
in these activities and that the Serbian Ministry of Interior should take
measures to relegate all these troops from the combat zone of JNA
units. Zoran Sokolović then said that he did not know who Arkan was
and all my information and warning were turned a blind eye on.
I added that what they were doing in the villages of Lovas and
Tovarnik was worse than what Germans did during World War II,
when they retaliated on the civilian population, whereby they adhered
to some rules of their own, including taking hostages, making lists of
their names, issuing orders about their execution and shooting them.
I pointed out that Germans killed civilians, but did not cut off the
victims’ fingers to take their rings. It was due to this fit of mine at that
meeting that I later got a nickname of “a Swabian from Kragujevac”
by some of them. I compiled a notice of all these findings and sent it
to the top military commanders.” (emphasis added)
5.61 Aleksandar Vasiljević’s testimony leaves no doubt that the Serbian
military and civilian command was fully aware of and endorsed the atrocities
committed by the paramilitary forces, operating in coordination with the JNA,
throughout Eastern Slavonia. It is of note, of course, that the Respondent does
not directly dispute the involvement of the JNA in the atrocities committed
in Lovas (see Memorial, paragraphs 4.116-132). Nor does the Respondent
disputethecommissionoftheothersetsofkillingscommittedinLovas,which
they summarise at paragraphs 717(a)/(b) of the Counter-Memorial.
5.62 Since the Memorial was prepared, theApplicant has obtained updated
exhumation data for Lovas. This data confirms that 84 bodies have been
exhumed from various sites in the area.
(13) t OrDi n c i
5.63 TheRespondent’ssummaryoftheApplicant’scaseischaracteristically
misleading. The Applicant’s case is not that 11 civilians were killed on 25
October 1991, but that “During the occupation 11 Croatian inhabitants of
Tordinci were killed.” (Memorial, paragraph 4.135). The witness, T.
R., describes in detail the ongoing attacks against Tordinci, and states
8 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
paras. 5.12-13, supra.
Volume 5.indd 171 12/14/2010 2:30:29 PM 172
“During these combat actions of various Serbian paramilitary formations and
the so-called JNA at Tordinci, the following local people from Tordinci were
killed… “. He then lists the names, dates of birth and addresses of 11 victims.
Thesuggestionatparagraph724oftheCounter-Memorialthathedoesnotoffer
any information as to “how, under what circumstances or by whom they were
killed” is misconceived. It is patently apparent from the witness’s account that
the victims were killed by Serb forces during the attacks on Tordinci. Since
the Memorial was prepared, the Applicant has obtained updated exhumation
data forTordinci. 8 This data confirms that 40 bodies have been exhumed from
various sites in the area.
5.64 ItisagainnotablethattheRespondentdoesnotdispute theinvolvement
of the JNA in the activities at Tordinci, as set out at paragraphs 4.134-135
of the Memorial. The Applicant has subsequently obtained a statement taken
in 1995 from M.M., who completed compulsory military service in
the JNA between 15 June 1991 and 12 May 1992. His unit was stationed in
Osijek and participated in combat actions in Tenja, Ernestinovo, Laslovo and
82
Tordinci.
(14) v u kOv a r
5.65 Both the ICTY and the Belgrade War Crimes Chamber have rendered
numerous convictions of Serbian defendants for the atrocities committed at
Ovčara, Vukovar. Whilst those convictions do not, inevitably, encompass
the full extent of the crimes committed in Vukovar, they do represent an
illustration of the extent and gravity of the atrocities visited upon the Croat
population by the Serb forces. The Respondent’s attempts to minimise the
significance of the findings of the ICTY in its Counter-Memorial cannot
detract from the compelling evidence in support of the Applicant’s case that
those convictions provide. Notwithstanding this, the Respondent continues
to dispute the severity of the attacks on Vukovar, and its responsibility for
the same. It repeatedly seeks to rely on the failure of the ICTY Prosecutor to
indict for particular crimes in relation to particular incidents in Vukovar as
an evidentially probative point. That reliance is addressed in general terms
by the Applicant in Chapter 2, paragraphs 2.25-33. For present purposes, it is
prescient to note the ICTYTrial Chamber’s own comments at the outset of its
judgment in Mrkšić et al on the extent of the atrocities committed in Vukovar
and the limited nature of the Indictment it was considering:
“The Indictment is confined to the events mentioned above. It does not
include the attack directed against the city of Vukovar and its civilian
population by the JNA and other Serb forces in 1991. The devastation
brought on Vukovar over the prolonged military engagement in
1991, the very many civilian casualties and the extensive damage to
81 Ibid..
82 Witness Statements of M.M., Annex 16.
Volume 5.indd 172 12/14/2010 2:30:29 PM 173
property resulting from the military operations are not the subject of
the Indictment. As a result, the Chamber cannot enter a finding of
guilt in respect of those events.”3
5.66 Again, the Respondent provides a misrepresentative and incomplete
summary of the Applicant’s case at paragraph 727 of the Counter-Memorial.
By way of example, it asserts that the Applicant’s case is that there were 529
people killed in the fighting between Croatian and Serb forces in the battle
for Vukovar and the suburb of Sajmište: paragraph 727. That is incorrect: the
Memorial makes it quite clear that the killings happened during the “siege”
(paragraph 4.152) and the “occupation” (paragraph 4.153). This deliberate
mischaracterisation of the Applicant’s case is then used to provide a false
foundation for the assertion subsequently made that, “Vukovar was a place
where fierce fighting between Croatian and Serbian forces took place. It is
obvious that Croatian forces were strong enough to inflict heavy losses on
Serbian forces and that vast number [sic] of Croat victims died as a result of
the fighting.” (Counter-Memorial, paragraph 744).
5.67 InaccordancewiththeRespondent’sattemptstoportraytheApplicant’s
case as consistent with legitimate military targeting, it also elects to ignore the
repeated accounts of torture, beatings and dehumanising treatment set out in
the evidence. Accordingly, the summary at paragraph 727 makes no mention
of, for example, the various forms of torture referred to in relation to Borovo
Naselje, at paragraph 4.162 of the Memorial. Considerable caution must be
exercised when reading the Respondent’s summaries of theApplicant’s case.
5.68 Having summarised the case in this way, the Respondent elects to
specifically challenge only very limited parts of the evidence relied upon by
the Applicant: the Applicant’s Memorial sets out the atrocities committed in
Vukovar over 27 pages; the Respondent’s Counter-Memorial contains just
6 pages in response. The Applicant does not reiterate in this Reply all the
evidence relied upon in the Memorial, but addresses those particular points
raised by the Respondent and sets out the new evidence obtained since 20▯01.
Sajmište
5.69 The Respondent notes that theApplicant claims that there are several
accounts of Croats being crucified, when it is apparent that the witnesses are
in fact referring to the same victim: Counter-Memorial, paragraph 730. The
Applicant accepts that there was a mistranslation of its Memorial, resulting
in an error at 4.157 of the English version. The original Croatian language
Memorial correctly states that “several witness statements speak of a Croat
being crucified”.
83 Mrkšić et al, para. 8.
Volume 5.indd 173 12/14/2010 2:30:29 PM 174
Mitnica
5.70 The Respondent again attempts to characterise the events in Mitnica
as being part of the heavy fighting between Croatian and Serbian forces:
Counter-Memorial,paragraph731.ItisveryclearfromtheApplicant’switness
statements that, whilst there was some limited defence mounted by the Croat
population, the Serb forces quickly overcame the Croat defenders so that the
area was essentially under occupation. 84That this is correct is borne out by the
findings of the ICTY in Mrkšić et al:
“A large number of JNA, Territorial Defence Units (“TO”) and
paramilitary units, including Serb volunteers took part in the battle
for Vukovar on the Serb side. … By the end of September 1991 the
number of JNA troops had increased considerably. The evidence
indicates there were then some 15,000 JNA soldiers in the larger
Vukovar area. …
On the Croatian side there were the locally based Territorial Defence
and members of the Ministry of the Internal Affairs (“MUP”), the
National Guard (“ZNG”) and a small number of a newly created
Croatian defence force. … Eventually, by the height of the siege, the
number of Croat combatants may have reached 1,700-1,800. …
There were dramatic differences between the military capacities
of the opposing forces. The JNA was an extensively equipped and
trained military force and was in far superior numbers. The Serb TO,
paramilitary and other volunteer elements were all equipped and
armed.AvailabletotheSerbforcesinlargenumberswasafullrangeof
military weaponry, including automatic infantry rifles, other automatic
weapons including machine-guns, rockets (including hand-held and
multilaunchers), heavy and light mortars, artillery and land mines.
They had armoured vehicles including armoured personnel carriers
(nearly all mounted with heavy machine-guns), tanks both old (T-33)
and new (M-84).88 They also had anti-aircraft batteries and an air
force armed with a range of ground attack weapons including bombs
up to 250 kg,89 all of which were used in the attack on Vukovar.
Naval forces on the Danube were also used.
By way of stark contrast, not only were the Croatian forces very
significantly less numerically and mostly ill-equipped and untrained,
but for the most part they had only light infantry weapons. Indeed
many were only armed with personal hunting rifles. Some shared
weapons, although gradually the Croatian forces gathered weapons.
These were bought, sometimes from neighbouring countries, and
84 Memorial, Annexes, vol 2(I), annexes 132 and 133.
Volume 5.indd 174 12/14/2010 2:30:29 PM 175
weapons were seized from JNA barracks in Croatia. While, during
the siege, the Croatian forces had mostly infantry weapons, they did
acquire some mortars and one or two anti-aircraft guns. They also
used mines, most of which were made in improvised facilities. They
captured two JNA tanks during the fighting. They had also two or
85
three cannons.”
5.71 The suggestion at paragraph 731 that many of the victims were killed
in shelling is no answer to theApplicant’s case: shelling is equally capable of
being a method of committing genocidal acts. Indeed, the ICTY specifically
noted that many civilians were killed in the shelling of Vukovar. 86 Also at
paragraph 731, the Respondent asserts that the statement of M.M.
was taken by Croatian Police whilst M. was in custody and is therefore
only of “limited evidentiary value.” The Applicant does not understand the
foundation for this criticism: if it is suggested that the statement was obtained
under duress, then the Respondent must evidence that assertion. Moreover,
the evidence given by M. is consistent with the other evidence relied
upon by the Applicant. There is no basis for the Respondent’ s criticism. It
is of considerable note that the Respondent does not elect to challenge the
events which occurred after the fall of Mitnica, as set out in the Memorial at
paragraph 4.158, including the genocidal activities of the Serb forces. ▯
Borovo Naselje
5.72 TheRespondentassertsthatthewitnessstatementofK.O.reveals
that the 7-8 people killed in the attack on the Commerce building in fact died
in fighting between Serbian and Croatian forces. That is demonstrably false.
There is no mention of any fighting in the statement of K.O. On the
contrary, he gives an account of elderly people and children taking shelter in
the building, before it was attacked using tanks and tear gas: “On the night
th th
between the 18 and 19 they (I do not know who or from where) blasted the
corner of the Komerc building that we were in and they let in tear-gas. Many
people were killed there (I do not know whether they were female or male). I
saw seven or eight bodies.They attacked Komerc with tanks. … I do not know
how many tanks there were or from what side they were firing. I heard them
shouting: ‘Pass the hose!’ Anyone who knew what was going on, he/she saved
himself/herself from the tear-gas. The elderly women were crying. A young
87
man threw out a cloth or towel as a sign of our surrender. …”
Central Vukovar
5.73 The Respondent again overstates its criticisms of the Applicant’s
evidence. By way of example, it asserts that the statements produced by the
85
86 Mrkšić et al, paras. 39-42.
87 Ibid., para. 36.
Memorial, Annexes, vol 2(I), annex 139.
Volume 5.indd 175 12/14/2010 2:30:29 PM 176
Applicant are “vague in the part which describes the alleged killings and they
never say where did the alleged killing take place. In addition, they relate
to captured Croatian defenders and not to civilians.” (Counter-Memorial,
paragraph 735). This is to be contrasted with, for example, the evidence of
Vladimir Obleščuk, who sets out the precise circumstances of the killing of
his elderly (civilian) mother in her house on 14 September 1991:
“That day, in Petrovača Street, 67 persons were killed … They were
all civilians. My mother was among them. She was born in 1926.
She was cooking dinner for my father and herself. Three men entered
the yard. One of them stayed with my father in front of the house.
The other two entered the house and started shooting at objects. Simo
Samaradžija, who used to work as janitor in the hospital, shot my
mother in the temple. When she fell, the other one fired from a rifle at
her. She was left there between the table and the stove.” 88
Velepromet
5.74 The ICTY in Mrkšić et al made it very clear that it was considering
only a very limited part of the atrocities committed in Vukovar: see above,
paragraph 5.65. It went on to specifically comment on the Velepromet
crimes:
“Also,actsofmistreatmentandkillingsofdetaineesattheVelepromet
facility on 19 November 1991, are not the subject of the Indictment,
While the crimes alleged to have been committed there are referred
to in the Indictment, this is only to demonstrate the Accuseds’
knowledge of instances of abuse similar to those that are alleged to
have occurred at the JNA barracks and the Ovčara farm. The Chamber
cannot, therefore, enter a finding of guilt in respect of events at the
Velepromet facility.” 89
5.75 It is accordingly wholly inappropriate for the Respondent to rely
(at paragraph 738 of the Counter-Memorial) upon the ICTY’s limited
comments on Velepromet as evidencing the full extent of the criminal activity
the ICTY considered to have occurred at that site. As the judgment makes
clear, the consideration of Velepromet was undertaken for the sole reason of
evidencing the accuseds’ knowledge of abuse, not to establish the number
of victims. The Trial Chamber judgment itself acknowledges that “Acts of
mistreatment occurred at Velepromet on 19 November 1991. They will be
described briefly because events at Velepromet are not charged as offences in
the Indictment.” 90
88 Memorial, Annexes, vol 2(I), annex 132. See also the accounts in annexes 117 and 155.
89
90 Mrkšić et al, para. 8.
Mrkšić et al, para. 163, emphasis added.
Volume 5.indd 176 12/14/2010 2:30:29 PM 177
5.76 Moreover, it is highly misleading to suggest that the Trial Chamber
founditestablishedthatonly15peoplehadbeenkilledatVelepromet(Counter-
Memorial, paragraph 738), and to rely upon this as demonstrating “how
exaggerated theApplicant’s claims that 350 people were killed at Velepromet
actually are.” The ICTY made no factual finding as to the precise number of
people killed at Velepromet. It referred to accounts from witnesses of many
people being taken off and not returning, or of being killed. It commented on
the number of bodies found in one mass grave. But its conclusion specifically
left open the number of people who were shot dead:
“In the finding of the Chamber, on 19 November 1991 some hundreds
of non-Serb people were taken from the Vukovar hospital and
transferred to the facility ofVelepromet by Serb forces. Others arrived
at Velepromet from elsewhere. At Velepromet these people were
separated according to their ethnicity and suspicion of involvement
in the Croatian forces. The Chamber finds it established that
interrogations of some of these people were conducted at Velepromet
in the course of which the suspects were beaten, insulted or otherwise
mistreated.Anumber of them were shot dead at Velepromet, some of
them on 19 November 1991. The Chamber finds that many, if not all,
of the persons responsible for the brutal interrogations and killings
were members of the Serb TO or paramilitary units.” 91
5.77 The Respondent has also elected to approach theApplicant’s evidence
in a disjointed and artificial manner. The assertion that the witnesses do not
support the Applicant’s case that 350 people were killed at Velepromet is
incorrect. The Applicant refers to a number of witnesses whose accounts
corroborate the case that a high number of people were killed: see, for
example, M.L., who witnessed 38 executions and stated that “the
entre night people were taken out and executed.” 92The Applicant also relies
on the witness statement of V.Š. who was detained at Velepromet and
states that “At least 350 persons were killed in ‘Velepromet’, and they were
buried, if one can say so, in the brick factory in Vukovar.” 93
Vukovar Hospital and Ovčara Farm
5.78 The Respondent does not address in any detail the findings of the ICTY
in Mrkšić et al or the findings of the Belgrade War Crimes Chamber in the
Ovčara case. Nor does the Respondent challenge any of the factual assertions
made by the Applicant specifically in relation to the Vukovar Hospital/Ovčara
Farm massacre. In those circumstances, the Respondent must be taken to
accept the case as presented by theApplicant on these incidents.
91
Mrkšić et al, para. 167, emphasis added. The Applicant has also obtained further witness
statements to the recording similar accounts of the ill-treatment at Velepromet: witness
92atements of S.S. and V.Š., Annexes 25 and 23.
93 Memorial, Annexes, vol 2(I), annex 147. See also, annexes 121 and 123.
Witness Statement of V.Š., Annex 23.
Volume 5.indd 177 12/14/2010 2:30:29 PM 178
5.79 The ICTY Trial Chamber convicted Mrkšić of the war crimes of
murder, torture and cruel treatment, sentencing him to 20 years imprisonment.
The convictions and sentence were upheld on appeal. Šljivančanin was
convicted of the war crime of torture and sentenced to 5 years imprisonment,
94
increased on appeal to 17 years.
5.80 The ICTY made detailed findings about the events at Vukovar
Hospital and Ovčara Farm. Those findings are, in essence, the same as the
case asserted by the Applicant. By way of example, the Applicant sets out
below some of the key findings of the Trial Chamber concerning Ovčara Farm
and the involvement of the JNA in the same:
“The buses arrived at Ovčara on 20 November 1991 between 1330
and 1430 hours. They were emptied one by one. The prisoners of war
were released from each of the buses in groups of five to six and every
second or third prisoner of war was questioned by the soldiers about
their activities in Vukovar. The prisoners of war were then stripped of
their personal valuables; their money and jewellery was taken away
while their IDs and other personal belongings were thrown in a ditch.
Then they had to pass between two rows of soldiers, about 10 to 15
on each side, who were beating them severely as they passed through.
The soldiers beat the prisoners of war using wooden sticks, rifle-butts,
poles, chains and even crutches.They were also kicking and punching
the prisoners of war. The gauntlet was about eight to 10 metres long.
Everyone from the buses, except for four persons, had to go through
the gauntlet and was heavily beaten. It took approximately 15 to 20
minutes to unload each bus. After passing through the gauntlet some
prisonersofwarwerefurtherindividuallyinterrogatedandmistreated.
Serb paramilitaries and TO members participated in the gauntlet.
Individuals among them were recognised and have been identified
in evidence. Witnesses saw Slavko Dokmanović the minister of
agriculture in the “government,” by this time wearing a JNA uniform.
Some regular JNA soldiers in uniform may also have participated in
the gauntlet. The JNA military police of the 2MP/gmtbr, who had
provided the security on the buses, stayed on the buses while the men
were made to run the gauntlet. At the hangar there were also 15-20
JNA soldiers who were securing the area. A witness described the
soldiers around the hangar as JNA military policemen wearing olive-
drab JNA uniforms with white belts. Other evidence, specifically
considered elsewhere confirms that these were military police of the
JNA 80 mtbr. No one tried to stop those who were hitting the prisoners
of war ...
Inside the hangar the beatings continued. The atmosphere was
miserable.There were about 200 people from the buses and at least 40
94 Mrkšić et al, Appeals Chamber Judgment, 5 May 2009.
Volume 5.indd 178 12/14/2010 2:30:29 PM 179
Serb soldiers including paramilitaries, TO members and JNA soldiers.
… The prisoners of war had to lean against the wall with their arms
up and their legs spread. Some were hit with iron rods and rifle-butts
and kicked. The evidence was specific about a number of prisoners
of war, including the following. Siniša Glavašević, a Radio Vukovar
journalist, was severely beaten with rifle-butts, iron bars, rods, chains
and police truncheons by several soldiers. Damjan Samardžić was
punched, he fell to the ground and was beaten by five or six soldiers.
He was beaten so badly that after two hours he still could not move.
Kemal (Ćeman) Saiti was also beaten particularly badly. A paramilitary
soldier grabbed him by the hair and banged his head several times
against the concrete floor so severely that witnesses thought that he
died there from the injuries caused during the beatings. …
Witnesses testified that one man whose dress and general appearance
indicated he was a TO member, despite the evidence of one witness
that he was a JNA officer, blew a whistle at intervals at which sound
the soldiers who were doing the beatings left and other soldiers came
in to the hangar to continue the beatings. …
In the Chamber’s finding, in the evening and night hours of 20/21
November 1991 the prisoners of war were taken in groups of 10 to 20
from the hangar at Ovčara to the site where earlier that afternoon a large
hole had been dug. There, members of Vukovar TO and paramilitary
soldiers executed at least 194 of them. The killings started after 2100
hours and continued until well after midnight.The bodies were buried
in the mass grave and remained undiscovered until several years
later.”5
5.81 Subsequent to the findings of the ICTY, the Belgrade War Crimes
Chamber has handed down convictions for war crimes for 13 defendants
concerning the Ovčara Farm massacre, with sentences ranging between 6 and
20 years’ imprisonment. The convictions have been upheld on appeal to the
Supreme Court.
5.82 Since the Memorial was prepared, theApplicant has obtained updated
exhumation data forVukovar. 96 This data confirms that 1260 bodies have been
exhumed from various sites in the area.
(15) c On c l usi s
95
Mrkšić et al., paras. 215-253.
9 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
paras. 5.12-13, supra.
Volume 5.indd 179 12/14/2010 2:30:29 PM 180
5.83 At the outset of this Chapter, the Applicant asserted that the
Respondent’s Counter Memorial followed a consistent pattern which was
deficient in a number of material aspects (see paragraph 1, above). Those
deficiencies have been repeatedly borne out in this Chapter by critical
analysis of the Respondent’s submissions on particular geographical areas.
The Respondent:
• Provides selective and misleading summaries of the Memorial;
• Makessweepingandlegallyunmeritoriouscriticismsofcategories
of evidence;
• Ignores many significant parts of the Applicant’s case;
• Distorts the ICTY case law; and
• At no point advances any positive case on the allegations made by
theApplicant nor adduces any of its own evidence.
5.84 By contrast, the Applicant has adduced detailed evidence for each
geographical area, submitted with the Memorial and with this Reply, setting
out the pattern of killing, rape, torture, detention, degrading and derogatory
treatment, restriction of movement, food and medicine deprivation, looting,
expulsion and that occurred in the region. That evidence conclusively
establishes that the Serbian forces conducted a coordinated, systematic and
widespread attack upon the Croat population of Eastern Slavonia, with the
intent to destroy that part of the Croatian ethnic group. In the territory of
Eastern Slavonia as a whole, the population ratio prior to the occupation was
70.24% Croat, 17.13% Serb and 12.6% other ethnic groups; by 1993, after the
occupation, the Croat population had dropped to 2% and the Serb population
increased to 97%. 97Those statistics are themselves compelling evidence of the
extent and impact of the Serbian attack.
97 Memorial, paras. 4.3.-5.
Volume 5.indd 180 12/14/2010 2:30:29 PM 181
CHAPTER 6
GENOCIDALACTIVITIES IN THE REST OF CROATIA
INTRODuCTORy REmARkS
6.1 In this Chapter, the Applicant responds to paragraphs 749-931 of
Chapter VII of the Counter-Memorial, concerning the genocidal activities
which took place in Western Slavonia, Banovina, Kordun and Lika, and
Dalmatia. The Applicant’s Preliminary Observations at paragraphs 5.1-13
of Chapter 5 apply equally to this Chapter. As the Applicant concluded in
Chapter 5, the Respondent provides selective and misleading summaries
of the Memorial, makes sweeping and legally unmeritorious criticisms of
categories of evidence, and at no point advances any positive case to meet the
allegations made by theApplicant. The Respondent’s reliance upon the ICTY
case law decided since the Memorial is distorted and the Respondent provides
no evidence whatsoever to undermine theApplicant’s case.
SECTION ONE: WESTERN SLAVONIA
(1) Mu n i c i p a lpa k r a c
6.2 The Respondent’s summary, at paragraph 749, of theApplicant’s case
on the atrocities committed in Pakrac municipality omits to mention anything
other than the murders detailed in the Memorial (paragraphs 5.17, 5.18, 5.19,
5.21, 5.22, 5.27). It does not, for example, mention the raping (paragraph
5.17), torturing and physical mutilation (including castration and injection of
poisons) (paragraph 5.27). Since the Memorial was prepared, the Applicant
has obtained updated exhumation data for Pakrac Municipality. This data
confirms that 31 bodies have been exhumed from various sites in the area.
6.3 The Respondent asserts that the Applicant’s reliance on Annex 240,
“Dead Civilians in the Former Municipality of Pakrac”, is inadequate because
it does not contain sufficient information about the circumstances in which
the victims died: Counter-Memorial, paragraphs 751 and 753. The list itself
contains short summaries of the relevant information for each entry and serves
to corroborate the witness statements relied upon by the Applicant, which set
out in some detail the circumstances in which a number of those on the list
died. For example:
• The killings of Marijan Svjetličić ("Jumbo") and Ilija Turković (entries 85
and 86 in Annex 240) are set out in the following witness statements:
1
See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
Volume 6.indd 181 12/14/2010 2:34:04 PM 182
i.I.B.:“…attheendofAugust1991GajaRatkovićcaptured
Marijan Svjetličić from Pakrac and IlijaTurković from Pakrac in their
houses and he took them in his personal car, “Zastava-750” brand, to
Bučjewheretheywerelockedupinthepolicestation.Theotherdayhe
heard that both of them died of the consequences of constant beating.
Jovo Vezmar from Pakrac was the police station commander in Bučje
at that period and a certain Siniša from Ožegovac and Đuro were the
guards known as bullies. He also saw that Vlado Pavlica from Pakrac
worked in the police and that he had a catering establishment in the
complex of his house in Pakrac before the incidents of war began. He
heard that Marijan Svijetličić and Ilija Turković were buried in Bučje,
near Cikoška Rijeka.” 2
ii. S.V.: “He doesn’t know when, but he knows
that, on one occasion, Ivo Rogulić and Gaja Ratković captured Ilija
Turković and a person whose nickname is “Jumbo”, both are from
3
Kusonje, and that they drove them in the direction of Bučje.”
iii. V.S.: “ILIJA TURKOVIĆ – from Pakrac, was
brought into Kusonje as well as V.M. and B., and
GAJARATKOVIĆ from Kusonje (… Street) brought him in and IVO
ROGULIĆfromRogolj,whohadahouseinKusonje.…Ratkovićand
Rogulić said that Turković had to go to the prison in Bučje, and that
he should be mentioned for liquidation. S. claims that during
that conversationTurković wasn’t beaten, and in the event that he was
molested that was probably in Bučje, but he doesn’t know anything
about it. The above mentioned Ratković and Rogulić said that he died
4
during the process.”
• The killing of Lazo Grubinić (entry 69 inAnnex 240):
i.H.H.: “On the 5th day of the massacre, he heard from his
neighboursfromPakračkivinogradi,thatMilanKovačevićandNenad
Bojić massacred Anton Pavić, Ivo Nađ, Ivo Šmit, his wife Zdravka
and grandson Zoran and Lazo Grubinić the same way they massacred
the above mentioned.” 5
ii. I.B.: “Bajić and Milan Kovačević called
“Sikirica” killed Lazo Grubinić in his house in Pakrački Vinogradi.
They shot him and hit him most probably with the blunt end of an axe
on the head so he had a stab wound on the neck in the throat area. His
2 Memorial, Annexes, vol 2(II), annex 177.
3 Memorial, Annexes, vol 2(II), annex 184.
4 Memorial, Annexes, vol 2(II), annex 185.
5 Memorial, Annexes, vol 2(II), annex 175.
Volume 6.indd 182 12/14/2010 2:34:04 PM 183
wife M. saw the attack on her husband, Lazo, so she immediately
went on the road and ran to his (I.B.) place where R.
B. from Pakrac and B.v. from Pakrački Vinogradi
were and she told them what had happened so they immediately went
to Lazo’s house. They found Lazo Grubinić on the threshold of his
6
house, murdered.”
iii. J.P.: “He states that in October 1991 he got
an order from Stevo Kojadinović to perform a checkup on Milan
Kovačević called “Sikirica” connected with the massacre of the
Croatian families that “Sikirica” did and the witness had to find
out if “Sikirica” “cracked up” and if there was any danger of him
killing another of the neighbors. The check up was performed after
Milan Kovačević was released from the Bučje prison, that is after
the executed massacre. He found Milan Kovačević in his house in
PakračkiVinogradi together with his wife and he asked him “How did
you begin to kill” and he answered that Lazo Grubinić (the butcher)
provoked him and that he kept on turning the tractor on and off and in
that way he gave the signals to the other side (the Croatian police) and
then the shelling would start.When he asked him how many people he
killed he said that he killed about five people. He said that one of the
reasons he killed Lazo was that Lazo was their connection so he had
to liquidate him the same way as he liquidated the others – chopping
them with an axe.” 7
6.4 The Respondent asserts at paragraph 752 that only four witnesses
have direct knowledge in relation to the murders.The Respondent fails to note
that the same witnesses (A. and S.P.) give considerable further
evidence about the circumstances which seem very likely to have caused the
death ofAnton Pavić on the night of 3-4 November 1991:
“At night on 3rd/4th November 1991, around midnight, they heard
banging at B.D.’s doors and then Bojić and Kovačević broke
into the house. In the house then slept A., S. and A.P.,
B.D. and L., and their daughter L.Š. with her two
6
Memorial, Annexes, vol 2(II), annex 177.
7 Memorial, Annexes, vol 2(II), annex 178. Further examples of the list at annex 240
corroborating the accounts given in the Applicant’s witness statements can be seen in
relation to: List Entries 43, 45, 46 and 47 corroborating the Witness Statement of N.
M., Annexes, Vol 2(II), annex 212; List Entries 41, 43, 44, and 47 corroborating the
Witness Statement of V.G., Annexes, Vol 2(II), annex 214; List Entries 58 and
59, corroborating the Witness Statements of M.Z. and M.V., Annexes,
Vol 2(II), annexes 179 and 180; List Entries 60, 64, 65, 66, 67, 68 and 70 are corroborated
by the Witness Statements of A.P., S.P., H.H. and I.B.,
Annexes, Vol 2(II), annexes 173, 174, 175 and 177. See also, the further corroboration for List
Entries 41, 43, 44, 45, 46, 47, 48, 49, 50 and 51 provided by “List of Killed Persons”, Annexes,
Vol 2(II), annex 241.
Volume 6.indd 183 12/14/2010 2:34:04 PM 184
children N. and I. … Wrestling and a fight began. Using the
moment, S., A., L., S., I. and L. escaped
from the house.A., B.D., Kovačević and Bojić stayed in the
house. Those who escaped set off towards Pakrac, but they ran into a
barricade of the terrorists. They asked the terrorists to let them pass to
the territory under the command of the Croatian Army, but those did
not let them. They asked the terrorists to stop torturing them and to
kill them, because they could not endure any more of the above stated
molestations. The terrorists sent them to the temporary terrorist HQ
in 40th Divizija Street in Pakrac. There they spent eight days. … On
their way to Bučje, S. andA. stopped by D.B.’s house …
they noticed a big splash of blood in the room where the fight was.
In the backyard they saw a freshly dug grave and they think that their
husband, that is father A.P. was buried there. They asked the
terrorists to tell them whereA. was, and to dig the grave.They did
not let them do that. ….” 8
The evidence of A. and S. P. is further corroborated by H.
H. and I.B. 10
6.5 The Respondent asserts, at paragraph 752, that the statement of
M.K. is so short that it lacks most of the basic information about
the events it refers to. The Respondent’s criticism is based on an artificial
consideration of the K. statement in isolation from the other evidence
available about the events in Pakrac. In particular, the statements of S.
11 12
V. and Ž.L., both Serbian paramilitaries, give detailed
accounts of numerous Croats being tortured and killed in Kusonje.
6.6 Furthermore, the availability of statements from Serbian armed forces
corroborating the incidents of torture and murder in Pakrac 13 undermines
the Respondent’s complaint that the list of ‘Dead Civilians in the former
municipality of Pakrac’(Annex 240) is not supported by evidence emanating
from an independent (non-Croat) source (Counter-Memorial, paragraph 754).
This general criticism is addressed in Chapter 2, at paragraphs 2.55-57. The
Applicant does not understand the Respondent’s assertion that the statements
of the perpetrators were taken by Croatian police without the involvement
of judicial organs and are therefore inadmissible (paragraph 752). If it is the
Respondent’s case that the statements were obtained under duress, then the
Respondent must evidence that assertion. Moreover, the evidence given by
the Serb witnesses is consistent with the other evidence relied upon by the
Applicant. There is no basis for the Respondent’s criticism.
8 Memorial, Annexes, vol 2(II), annex 173; see also annex 174.
9 Memorial, Annexes, vol 2(II), annex 175.
10Memorial, Annexes, vol 2(II), annex 177.
11Memorial, Annexes, vol 2(II), annex 184.
12Memorial, Annexes, vol 2(II), annex 183.
13
In addition to annexes 183 and 184, see also annexes 172, 177, 178
and 182.
Volume 6.indd 184 12/14/2010 2:34:04 PM 185
6.7 It is also notable that the Respondent fails to comment on or challenge
theinvolvementoftheJNAintheatrocitiescommittedinPakracmunicipality,
as set out at, for example, paragraphs 5.15, 5.17 and 5.26 of the Memori▯al. 14
(2) M u n i c i p a lpio d r a v ssl a t i n a
6.8 The Respondent’s summary of the Applicant’s case fails to mention,
even less dispute, key aspects of the allegations in relation to the Podravska
Slatina municipality, including: rape, torture and physical abuse (Memorial,
paragraphs 5.30, 5.33, 5.34, 5.39, 5.43); deliberate infliction of conditions of
lifeintendedtodestroytheCroatpopulation,suchasfoodrationing(paragraph
5.30), denial of medicines (paragraph 5.30) and forced labour (paragraph
5.31); restrictions on religious practice and the use of the churchyard to bury
ethnic Croats (paragraph 5.32) and destruction of sacral objects (paragraphs
5.35 and 5.43). Indeed, in relation to the crimes committed in Donji Čaglić,
including the killing of 10 Croat civilians, the Respondent makes no direct
comment at all (Memorial, paragraphs 5.47-49). Since the Memorial was
prepared, the Applicant has obtained updated exhumation data for Podravska
Slatina municipality. 15This data confirms that 9 bodies have been exhumed
from various sites in the area.
6.9 Many of the Respondent’s comments on the allegations which it does
address do not amount to a denial of the events as described by theApplicant.
For example, in relation to Voćin, it is said “six witnesses provided direct
testimonies regarding some of the alleged events in the village. All the other
witnesseshadonlysecond-handknowledgeoftheevents.”(paragraph759:the
generalcriticismsareaddressedinChapter2,paragraph2.44)TheRespondent
does not seek to directly challenge the specific content of any of the witness
statements referred to.16
6.10 The Respondent’s assertion, at paragraph 761, that the Applicant
concedes that there are “no witness statements in support of the alleged
massacre of persons” fails to note that there is, however, a video recording of
the events (Memorial, paragraph 5.44, footnote 85).
6.11 The Respondent’s criticism of the Applicant’s evidence concerning
Balinci (Counter-Memorial, paragraph 762) as being lacking in detail is
unmerited.When taken together, theApplicant’s evidence presents a clear and
cogent account of the atrocities committed in Balinci:
• M.K., a Serb paramilitary, gives a detailed account of the
14See further, the statements of the Serb armed forces referred to above, including B. who
was a JNA soldier, detailing some of the atrocities committed: Memorial, Annexes, vol 2(II),
annex 172.
15See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
16
This is true also in relation to the Respondent’s comments at para. 760 (Hum) and para.
761 (Četekovac).
Volume 6.indd 185 12/14/2010 2:34:04 PM 186
individuals sent to “clean” Balinci at the “beginning of Septem▯ber 1991”:
“In a group whose commander was Mile Crnobrnja, who was armed
with an automatic gun and a sniper, were:
- Rajko Ivković, armed with an automatic gun and a sniper;
- Zoran Jovakarić, armed with an automatic gun;
- Goran Bjelovuk, called “Goš”, armed with a sniper;
- Stevo Šimić, armed with an automatic gun;
- Željko Bosanac, armed with an automatic gun;
- Branko Radmilović, called “Kopiter”, armed with an automatic
gun;
- Dragoslav Dokmanac, armed with an automatic gun;
- Jovan Vuković, called “Ogi”, armed with an automatic gun;
- Jovan Cvijetić, called “Cvajo”, armed with an automatic gun and a
sniper;
- Rajko Vučković, armed with an automatic gun;
- Zoran Jovanović, armed with an automatic gun;
(...) A task of Mile Crnobrnja’s group was to clean the upper part of
Balinci, and our group was cleaning the houses by the road leading
to Četekovci, and we joined each other at the crossroads in Balinci.
In a backyard, Goran Bjelovuk ran into an old man wearing a blue
working coat and told him to run, and then he shot him by sniping
at his back. After we joined, we went towards Četekovac, and Zoran
Miščević fired a grenade from the mortar into a trench that was empty
and jumped into a ditch under a bridge that is between Četekovac and
Balinci from where he chased out a few older women and men that he
chased in front of himself as a human barrier all the way to the café
in Četekovac, where we stopped, and Miščević made the civilians lie
on the ground face down. After that we went to the café where we
started drinking. When he entered the café, Goran Bjelovuk climbed
upstairs from where somebody shot at him, and he threw a bomb
and got down and told us that there was someone upstairs. After that
Rajko Ivaković went out on the road and fired two grenade launchers
at the rooms above the café, and Goran Bjelovuk went upstairs from
where he took out a man in a ranger’s uniform and one in a working
coat. Since he chased them out into the backyard, Bjelovuk shot a full
charge at this man in ranger’s uniform from close range, and Rajko
Vučković also shot at him from the automatic gun. The other one
was beaten and cursed by Bjelovuk, he beat him and kicked him and
fired at him several shots from a sniper gun and from a gun of TT
Volume 6.indd 186 12/14/2010 2:34:04 PM 187
make. Immediately after that Dragan Starijaš, called “Gagi”, brought
apolicemanfromahouseatwhom,aftertheybeathim,RajkoIvković
and Goran Bjelovuk fired a few shots, and Miladin Milnović, called
“Drdan”, sat on that man’s stomach and took out a knife from his belt,
and when he got up, I saw that Milnović’s knife was all covered with
blood.” 17
• M.B. provides the names of a number of persons killed in
Balinci on 4 September 1991. It is incorrect to say that she has no firsthand
knowledge of the circumstances in which they lost their lives: she makes it
clear that the village was under attack (quite obviously from Serb forces),
using both mortars and guns. It is apparent that she is referring to the same
attack as M.K. describes as taking place at the “beginning of
September”. She describes her husband being killed by Relja Dragičević,
along with Ivan Biskupović and Miško Lovrenc. She states that Rozika
Vlatković,whowas93yearsold,wasalsokilledalongwithIkaBiskupović
in the cellar, and that Nikola Mandić was killed in his house at the table.
Jure Borovac was killed in his back yard and Ivan Rukavina was killed in
front of the house of Jure Borovac. She also knows that Duško Košarek,
Josip Potočnik and Milan Tone were killed. 18
• A.M. gives a similar account of the attack on 4 September 1991,
and identifies a number of those killed, including Ivan Biskupović, Nikola
Magdić, Marko and Manda Rukavina, Rozika Vlatković, Ivka Biskupović,
Miško Lovrenc, Jure Borovac, and Ivan Rukavina. She states that they
were all wearing civilian clothes. She was not present at the time of their
murders, but it is very clear from the evidence of M.K. that the
19
Croat civilian population of Balinci was ‘cleaned’by the Serb forces.
6.12 The events in Podravska Slatina municipality are also corroborated by
theHelsinkiWatchReportsenttoPresidentMiloševićandGeneralAdžićon21
20
January 1992. That Report found that 21 civilians were killed in Četekovac,
Čojlug and Balinci, ranging in age from 18-91 years, 15 of whom had been
killed by gunshot wounds. The Report contains detailed accounts of some of
the killings. The Report also details attacks on Hum and Voćin, resulting in
numerous civilian deaths, many of which were preceded by brutal torture.▯
6.13 The Respondent has not provided any evidence contradicting the
substance of any of the statements relied upon by the Applicant. It is also
particularly striking that the Respondent does not specifically challenge the
17 Memorial, Annexes, vol 2(II), annex 202.
18 Memorial, Annexes, vol 2(II), annex 210.
19 Memorial, Annexes, vol 2(II), annex 211.
20 Report from Helsinki Watch to President Slobodan Milošević and General Blagoje Adžić,
21 January 1992, Annex 99. The Report has been treated by the ICTY as a reliable source of
evidence in Martić, para. 324, footnote 1002.
Volume 6.indd 187 12/14/2010 2:34:04 PM 188
substance of any of the evidence that the JNA acted in conjunction with
the TO and Serb paramilitaries in committing the atrocities in Podravska
Slatina, as set out in the Memorial and, in particular, the witness statements of
J.M., 21M.P., R.M., A.Š., M. 24
25 26
K.*, and N.M. It is of particular significant that M.
and K.* are Serbian and that M. was a member of the 51 stBrigade
th
of the 4 Battalion of theArmy of the RSK.
(3) M u n i c i p a l idta r u v a r
6.14 In so far as the Respondent comments on the Applicant’s evidence in
relation to Daruvar, its observations are mostly generalised and do not directly
challenge the veracity of the accounts given by the Applicant’s witnesses.
The generalised criticisms concerning, for example, hearsay evidence are
addressed in Chapter 2. Apart from the murders detailed in the Memorial
(paragraphs 5.55, 5.56, 5.58, 5.61, 5.64) the Respondent fails to refer in its
summary (Counter-Memorial, paragraph 767) to physical and psychological
violence (Memorial, paragraph 5.52) and torture (paragraphs 5.53, 5.54)
including physical mutilation (5.64).
6.15 The observation that some of the witnesses in relation to Đulovac
also refer to Serbs being detained and tortured (Counter-Memorial, paragraph
770) is not inconsistent with theApplicant’s case. The general evidence given
by those witnesses is that the ‘Chetniks’ targeted the Croat population. The
fact that some victims may have been Serbs has not deterred the ICTY from
making findings that the crime against humanity of persecutions was carried
27
out against the Croat civilian population.
6.16 Since the Memorial was prepared, the Applicant has obtained a
further witness statement from I.H. who was the Đulovac parish
priest. He gives a detailed account of the events in Đulovac from 1990-
1992, corroborating the Applicant’s case set out at paragraphs 5.51-56 of the
Memorial. He recalls the barricades around Đulovac being manned by Serbs
with ‘Serbian Autonomous Region of Western Slavonia’ insignia on their
sleeves. All communication ceased on 18 August 1991, with trains stopping
running and, a day or two later, the phone lines ceasing to work. He also
confirms that the Veterinary Station was converted into a Police Station and,
in September 1991, Franjo Zmegač was killed and his house set on fire. Like
all the others left in the village at this time, Franjo Zmegač was elderly. I.
21
22 Memorial, Annexes, vol 2(II), annex 189.
Memorial, Annexes, vol 2(II), annex 192.
23 Memorial, Annexes, vol 2(II), annex 198.
24 Memorial, Annexes, vol 2(II), annex 200.
25 Memorial, Annexes, vol 2(II), annex 202.
26 Memorial, Annexes, vol 2(II), annex 212.
27
28 Martić, para. 383.
Witness Statements of I.H., Annex 13.
Volume 6.indd 188 12/14/2010 2:34:04 PM 189
H. also remembers a number of arrests occurring in August 1991 and
names B.B., I.B., F.B., I.G, a man called
G. from Koreničani, and 4 men called Paljević from Koreničani. He was
alsoarrestedhimselfandtakentotheVeterinaryStation,wherehewasreceived
by Vlado Kezele and another man wearing a JNA uniform (approximately
30 years old and 180cm tall). The other Croats he was detained with were
frequently maltreated and did not receive any food. He recalls that other Croat
prisoners were also kept in a wooden shed next to the Veterinary Station.
The Church was subsequently attacked by the Serbs and abuse of the Croat
population became an everyday occurrence. In November 1991, reservists
from Novi Sad Corps had come to the village, lead by a JNA Captain, whose
last name was Kulić or Kuliš. In early December 1991, he recalls 8-10 Croats
being killed, including Franjo Blažan, his wife and his son, all of whom were
shot in their own courtyard. Close to the Forestry Motel, one woman and her
son were killed. He also remembers that the wine-grower, Sautner, and his
mother were shot and killed.
6.17 The Respondent’s criticism that, in relation to Doljani, the witnesses
provide “no information on the perpetrators of the crimes they witnessed”
is incorrect (Counter-Memorial, paragraph 771). I.M. begins his
statement with the words “On the 16 thof September 1991 the Serbs performed
the attack on the village of Doljani.” He goes on to state that “I do not know
who those people were, but I am sure they were the local Serbs from the
village of Doljani and the surrounding villages...”. Similarly, A.K.
states of events on the same date that “We were listening to Radio Zagreb
in the house and we heard on the news that in a moment there should be a
surrender of the barracks in Doljani. When we went out of the cellar, we saw
a tank at the barracks through the blinds, but without our Croatian flag and I
knew that the barracks had not fallen yet. There was a Yugoslav flag on the
tank.” She goes on to identify one of the perpetrators as Goran Zabrdac from
Daruvar. 30
6.18 The Respondent states in relation to Vukovije that the witnesses give
“no information as to how those people were killed.” (Counter-Memorial,
paragraph 772). That is, again, demonstrably false. M.H. states: “Mijo
Novaković, Ivka Novaković and Štefica Kopriva were killed in Vukovije and
the Chetniks killed them and we found the dead bodies on the steps in front of
the house. They were killed with shots from a gun in the back of their heads.
…Those three persons that were killed were found at S.K.’s place.
That is to say, all of them slept in the house of M.N.and in the
morning S.K. found them on the steps of the house. In the course
of October 1991 the Chetniks from Batinjani were stationed for about two
weeks in one building of the forester’s house. Some time, during the period
whiletheywereinthatbuilding,thesemurdersofthesethreepeoplehappened.
29 Memorial, Annexes, vol 2(II), annex 224.
30 Memorial, Annexes, vol 2(II), annex 226.
Volume 6.indd 189 12/14/2010 2:34:04 PM 190
I do not know who could have done that. The house where these three people
were, was about 200 meters away from the building where those Chetniks
were stationed. My son buried those people. P.P. made the coffins
and S.B. dug out the grave. M.O. was also present on
31
their burial.”
6.19 The Respondent makes no direct observations on the Applicant’s
case or evidence in relation to Veliki Miletinac. The Respondent also does
not comment on the evidence of the involvement of the JNA in the atrocities
committed in Daruvar municipality, as set out, for example, at paragraphs 5.51
and5.58oftheMemorial.TheApplicanthassubsequentlyobtaineda“Proposal
for special promotion” from the ‘RSK’TO for Western Slavonia, concerning
Warrant Officer Stevo Prodanović and his involvement in the “war” in
Western Slavonia. He was particularly commended for his “determination and
perseverance” in ensuring that “4000-4500 long barrel weapons were moved
from Daruvar Barracks to the territory ofWestern Slavonia” between June and
32
August 1991. The document corroborates the extent of premeditation and
organisation of the attacks in Western Slavonia by the Serbian infrastructure.
SECTION TWO: BANOVINA
(4) M u n i c i p a lGil i n a
6.20 In so far as the Respondent comments on the Applicant’s evidence
in relation to Glina municipality, its observations are mostly generalised
and do not directly challenge the veracity of the accounts given by the
Applicant’s witnesses. The generalised criticisms concerning, for example,
hearsay evidence are addressed in Chapter 2. In its summary (Counter-
Memorial, paragraph 767) the Respondent fails to refer to the physical and
psychological violence (Memorial, paragraph 5.52) and torture (paragraphs
5.53-54) including mutilation (paragraph 5.55) that was visited upon the
Croat population of Glina Municipality. Since the Memorial was prepared,
theApplicant has obtained updated exhumation data for Glina Municipality. 33
This data confirms that 91 bodies have been exhumed from various sites in the
area.
6.21 At paragraph 781 the Respondent asserts that the Applicant has
34
not identified the 18 Croats who were killed in Glina and that the witness
statement of A.B. in relation to the village of Maja lacks detail. It
31
32Memorial, Annexes, vol 2(II), annex 229. See also annex 228.
RSK, Recommendation for Extraordinary Promotion, Stevo Prodanović, 23 November
1992, Annex 76.
33See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
34 Para. 781 refers to 17 Croats being killed, whereas the Memorial and the Respondent’s
summary at para. 777(a)(ii) refer to 18 Croats being killed. It is assumed that para. 781
contains a typographical error.
Volume 6.indd 190 12/14/2010 2:34:05 PM 191
cannot, however, be disputed that Serbian armed forces were carrying out
attacks on and “mopping up” in Glina. The Applicant has obtained an Order
fromtheWarPresidencyoftheMunicipalAssemblyofGlina,dated22August
1991, which ordered the Glina Territorial Defence to “submit a written report
on war operations as of 26 June 1991 to date. A special emphasis is required
for the events in Maja on the occasion of mopping up of Maja, Svračica,
35
Dolnjak, Joševica and Prijeka.” The date of the Order corresponds withA.
B.’s account of the attack on Maja inAugust 1991. It is also notable that
the Respondent makes no specific criticism of the statements of either I.
36 37
M. or P.T., both of whom provide further details of the
attacks on Glina. The Applicant has also obtained a witness statement from
M.Č., who gives evidence that Dr Dušan Jović was the head of the
Glina Hospital and President of the Glina Serbian Democractic Party was the
initiator and organiser of Serb acitivities in Glina and its surroundings. He
ordered Serb units to “kill and slay every living creature of Croatian origin,
even if it was a cat. He used to say that Croats should be exterminated while
they were still in the womb. His idol was Boro Mikelić who transferred him to
38
Belgrade after the first wartime year in Glina...”
6.22 The Respondent asserts in relation to Novo Selo Glinsko that the
Applicant has offered little detail regarding the killing of 32 Croats (paragraph
782).The facts of the killings and the identities of the victims are set out in the
Criminal Charge dated 24 April 1995, namely that the 32 Croats were taken
from their houses and were killed in a valley near the village, before being
buried. The perpetrators then returned to the village and set the houses on
fire. The statement of M.P., a Commanders Assistant in the TO, sets
out a cogent account of the attack on the village, the gathering of the Croat
population, including women and children, and, shortly thereafter, gunshots
40
and explosions. The Respondent provides no evidence to undermine the
obvious inferences to be drawn from the statements and documents relied
upon by theApplicant.
6.23 Of the attacks on Joševica, the Respondent has elected to focus its
comments on the killing of the K. family (paragraph 783). It entirely
fails to respond to, or in any way challenge, the evidence that 21 Croats were
killed on 16 December 1991, as set out in numerous witness statements relied
upon by the Applicant at paragraph 5.86 of the Memorial. As VJ General
Stevan Mirković subsequently described it, “Go about Banija, all Croatian
villages are burned down to the ground... And that isn’t a war. Where did
35
SAO Krajina, Order on the Submission of a Written Report on War Operations as of 26
36ne 1991, 22 August 1991, Annex 51.
Memorial, Annexes, vol 2(II), annex 249.
37 Memorial, Annexes, vol 2(II), annex 251.
38 Witness Statement of M.Č., Annex 6.
39 Memorial, Annexes, vol 2(II), annex 323.
40 Memorial, Annexes, vol 2(II), annex 253. See also annexes 254 and 255.
Volume 6.indd 191 12/14/2010 2:34:05 PM 192
you have a collision of two armies? A knife, a sniper rifle and the artillery
are mainly operating and then civilians are the ones who die the most…
When I saw Jošanica where Serbs had also slaughtered 19 Croatian women
41
and Croatian children, since then I won’t go there anymore.” The Applicant
has also obtained further evidence in relation to the atrocities committed
in Joševica. N.Š. gives a detailed account of the killings of the
K. family at the beginning of November 1991, which corroborates the
other witnesses relied upon by the Applicant. He then gives a short account
of the massacre in December 1991 and explains that, when he left Glina
subsequently, he was required to sign a statement saying that he was leaving
voluntarily.TheeventsinJoševicaarealsocorroboratedbytheHelsinkiWatch
43
Report sent to President Milošević and General Adžić on 21 January 1992.
The Report refers to the killings of 20 Croats (aged 5-65), carried out by the
JNAand Serbian paramilitary units.
6.24 The Respondent does not dispute the facts asserted by the Applicant
in relation to Gornje and Donje Jame, and only comments on the identity
of the perpetrators of the attacks (Counter-Memorial, paragraph 784). It is
the Applicant’s case that the atrocities committed in Gornje and Donje Jame
were carried out principally by Serb paramilitaries, but that they were acting
in concert with the JNA. J.F. gives a detailed account of the attacks,
and describes Đuro Pavlović, who was wearing a JNA uniform, as being
involved. 44
(5) M u n i c i p a l poe t r i n j a
6.25 Again, the Respondent only comments on a limited number of
the allegations made in the Applicant’s Memorial in relation to Petrinja
Municipality. The summary at paragraph 788 of the Counter-Memorial is
characteristically incomplete, referring only to murders, but not including
physical and psychological abuse (Memorial, paragraphs 5.100, 5.101),
denial of medical care (paragraph 5.97), physical mutilation (paragraph
5.97), movement restrictions and the use of Croatians as a human shield
(paragraph 5.100), nor the destruction of sacral objects (paragraph 5.94).Since
the Memorial was prepared, the Applicant has obtained updated exhumation
data for Petrinja Municipality. 45 This data confirms that 151 bodies have
been exhumed from various sites in the area. The Respondent asserts that
the Applicant’s claims concerning Petrinja town are imprecise as to the
circumstances of the alleged killings (Counter-Memorial, paragraph 791).
41 Witness statement of I.M., Memorial, Annexes, vol 2(II), annex 261.
42 Witness Statement of N.Š., Annex 24.
43 Report from Helsinki Watch to President Slobodan Milošević and General Blagoje Adžić,
21 January 1992, Annex 99. The Report has been treated by the ICTY as a reliable source of
44idence in Martić, para. 324, footnote 1002.
45 Memorial, Annexes, vol 2(II), annex 265.
See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
Volume 6.indd 192 12/14/2010 2:34:05 PM 193
The Applicant has provided witness statements which provide details of the
killings, including, for example, D.C., who gives an account of a
group of Croats being made to run away in groups of 3, before being shot in
the back by Serbs. 46The suggestion by the Respondent that the evidence of
this witness, and that of P.M., demonstrates that “heavy fighting
occurred between Serb and Croatian forces over the town of Petrinja” is
inaccurate. Neither witness makes any reference to there being any fighting
whatsoever: on the contrary, they confirm the city was extensively shelled by
Serb forces.
6.26 SincetheMemorialwasprepared,theApplicanthasobtainedawitness
statementfromM.Ž.,whowasamemberof“Martić’sPolice”,operative
48
inthePetrinjaareain1991. Ž.givesevidencethattheJNAweresupplying
theTO in Joševica with uniforms, automatic rifles, mortars and ammunition in
July 1991. He details the killing of an active police man, Ivica Mrazovac from
Budičina in August 1991, by “Martić’s Police” in a pre-organised ambush.
Ž.givesathoroughaccountoftheorganisationof“Martić’sPolice”andtheir
relationship with the local TO. He explains that armed actions were planned
by Dragan Sanader, a platoon commander of “Martić’s Police”, “together with
the TO Staff for Petrinja then located in the village of Joševica and that he
planned those actions most often with Veljko Jasić from Moštanica who was
in the JoševicaTO.” Ž. also provides an account of the attack on Petrinja on
16 September 1991, stating that 15 members of his platoon wen to Hrastovica
where they met TO units from Gornja Mlinoga, Donja Mlinoga, Jabukovac
and Klinac. They set off through the woods and met with a TO Cepeliš unit
en route. They reached Petrinja on the morning of 16 September and were
divided into 4 groups. Ž. left the area and when he returned later that day
the 20 MUPand ZNG members, referred to in the Memorial, had already been
executed. He spoke to Miroslav Kljaić, who had “commanded and organised
the execution”. Kljaić had ordered the men to lie on the ground and take off
their uniforms. Four members of the group failed to do so right away, so Kljaić
shot them. Members of “Martić’s Police” (Pero Miočinović, Dragan Drobnjak
and Milan Drobnjak (“Prelac”)) joined in with the executions, with Kljaić
requiring the men to run away in groups of 3 before being shot in the back.
Two more of “Martić’s Police” joined in towards the end of the execution.
Ž. goes on to detail a number of further ZNG and MUPpersonnel who were
killed and other atrocities that were committed in the area.
6.27 The Respondent’s observations in relation to Kraljevčani are limited
46 Memorial, Annexes, vol 2(II), annex 268. See also the findings of the Helsinki Watch
Report sent to Slobodan Milošević on 21 January 1992, to the effect that 4 Croat men were
killed in Pecki when they came to tend their cattle, 3 of whom appeared to have been tortured
first: Report from Helsinki Watch to President Slobodan Milošević and General Blagoje
Adžić, 21 January 1992, Annex 99.
47
48Memorial, Annexes, vol (2(II), annex 267.
Witness Statement of M.Ž., Annex 28.
Volume 6.indd 193 12/14/2010 2:34:05 PM 194
to noting that the Applicant’s witnesses do not contain precise information
as to the circumstances of the deaths on 15 August 1991 or the perpetrators
(Counter-Memorial, paragraph 792). The Respondent does not dispute the
fact of the deaths, nor the other atrocities committed in Kraljevčani, as set
out in the Memorial at paragraphs 5.97-98. Moreover, it is apparent from the
statement of N.T. that the killings in Kraljevčani were carried out
49
bySerbarmedforces,“mostlyMartić’spolicemen”. ThewitnessM.Ž.,
himself a member of “Martić’s Police”, recalls Zlatko Milanković “boasting
at Čavić Brdo that together with several other persons from Mali Gradac he
slaughtered four civilians in Dragotinci or in Kraljevčani, and he brutally
killed three old women and a man.” 50
6.28 OfGlinskaPoljana,theRespondentmakesonlygeneralisedcomments
about the evidence being indirect and hearsay (as to which, see Chapter 2,
paragraph 2.44), and observes that the perpetrators of the killings were said
to be the “Siltovi” paramilitary group (Counter-Memorial, paragraph 793; see
also,paragraph821).TheRespondentoverlookstheevidenceofI.D.,
who states that a JNAcolumn had marched into the village on 4 October 1991,
after which the witness concluded that the JNA was cooperating with local
Chetniks. It is readily apparent that the Serb paramilitary groups were acting
in conjunction with the JNA.
(6) M u n i c i p a ldiv o rn aun i
6.29 TheRespondentdoesnotsummarisesignificantpartsoftheApplicant’s
case on Dvor na Uni municipality, including the use of Croat civilians as a
humanshield(Memorial,paragraph5.103)andthesubsequentmurdersbySerb
paramilitaries of Croat patients in hospital being treated for injuries sustained
as members of the human shield (paragraph 5.104), and the destruction of
sacral objects (paragraph 5.108). Thereafter, the Respondent comments only
onselectivepartsoftheApplicant’scaseonDvornaUnimunicipality,anddoes
not dispute many of the allegations, including, for example, the removal from
hospital and subsequent murder of wounded civilians (Memorial, paragraph
5.104). Since the Memorial was prepared, theApplicant has obtained updated
52
exhumation data for Dvor na Uni Municipality. This data confirms that 21
bodies have been exhumed from various sites in the area.
6.30 In relation to Dvor na Uni itself, the Respondent asserts that the
evidence offered by the Applicant is unclear as to the identity of the three
Croatian policeman who were killed and the perpetrators of those killings.
That is a misrepresentation of the evidence:T.B. sets out a detailed
49 Memorial, Annexes, vol 2(II), annex 271.
50 Witness Statement of M.Ž., Annex 28.
51 Memorial, Annexes, vol 2(II), annex 272.
52 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
Volume 6.indd 194 12/14/2010 2:34:05 PM 195
account of the attack and identifies the perpetrator as wearing a masked
53
uniform with the sign “Police of the Serbian Autonomous (SAO) Krajina”.
The Respondent also misstates the evidence by asserting that the descriptions
of the events shows that fighting between Croatian and Serb forces took place
in Dvor na Uni (Counter-Memorial, paragraph 799). It is very clear from the
Applicant’s evidence that the attack on Dvor na Uni was a coordinated assault,
and part of the broader attack in Banovina known as “Žaoka”, including 54
shelling of the civilian population and the creation of a human shield. The
implicit suggestion that any of the deaths the Applicant relies upon were the
result of legitimate military targeting during an armed conflict is not supported
by any evidence.
6.31 In relation to the remainder of the Applicant’s case on Dvor na Uni
municipality, the Respondent makes only generalised criticisms and does not
dispute the accuracy of many aspects of the Memorial.
(7) M u n i c i p a lHir v a t s ao s t a j n i c a
6.32 The Respondent continues to dispute some of the details of
the Applicant’s case in relation to Hrvatska Kostajnica municipality,
notwithstanding the findings of the ICTY in Martić that 83 Croat civilians
were massacred in the area during October 1991. The ICTY found that the
killings and other persecutory conduct amounted to crimes against humanity,
having been carried out as part of a joint criminal enterprise to conduct a
systematic attack on the civilian population and with the intent to discriminate
on the basis of Croat ethnicity.
6.33 In addition to the Martić judgment, Milan Babić pleaded guilty to his
involvement in the joint criminal enterprise, including in relation to Hrvatska
Kostajnica. The basis of plea recorded in the sentencing judgment provides a
useful summary of the relevant conduct:
“14. In the period of the Indictment, from about 1 August 1991 to 15
February 1992, Serb forces comprised of JNA units, local Serb TO
units, TO units from Serbia and Montenegro, local MUP police units,
MUP police units from Serbia, and paramilitary units attacked and
took control of towns, villages, and settlements in the SAO Krajina.
15.After the take-over, in cooperation with the local Serb authorities,
53
54 Memorial, Annexes, vol 2(II), annex 275. See also annex 280.
See, for example, Memorial, Annexes, vol 2(II), annexes 244, 273, 274, 275, 280
and 281, as referred to in the Memorial at paras. 5.103-106.
55 Similar allegations as were established in Martić were also included in the Indictment in
Milošević, para. 40. The Applicant has also obtained a statement from O.R., a Serb
wholivedinHrvatskaDubicain1991:Witness Statements ofO.R.,Annex22.R.
provides further details of particular individuals responsible for the killings considered by the
ICTY in Martić in Hrvatska Dubica and Baćin.
Volume 6.indd 195 12/14/2010 2:34:05 PM 196
the Serb forces established a regime of persecutions designed to
drive the Croat and other non-Serb civilian populations from these
territories. The regime, which was based on political, racial, or
religious grounds, included the extermination or murder of hundreds
of Croat and other non- Serb civilians in Dubica, Cerovljani, Baćin,
Saborsko, Poljanak, Lipovača, and the neighbouring hamlets of
Škabrnja, Nadin, and Bruška in Croatia; the prolonged and routine
imprisonment and confinement of several hundred Croat and other
non-Serb civilians in inhumane living conditions in the old hospital
and the JNAbarracks in Knin, which were used as detention facilities;
thedeportationorforcibletransferofthousandsofCroatandothernon-
Serb civilians from the SAO Krajina; and the deliberate destruction
of homes and other public and private property, cultural institutions,
historic monuments, and sacred sites of the Croat and other non-
Serb populations in Dubica, Cerovljani, Baćin, Saborsko, Poljanak,
Lipovača, and the neighbouring hamlets ofVaganac, Škabrnja, Nadin,
and Bruška.
16. These acts were intended to permanently and forcibly remove
the majority of the Croat and other non-Serb populations from
approximately one-third of Croatia in order to transform that territory
into a Serb-dominated state. The acts started on or about 1 August
1991 and continued until June 1992, at least, that is until after the
indictment period, which runs only until 15 February 1992.”
6.34 The basis of Babić’s plea also sets out in some detail the extent of
the involvement of the Serbian political and military infrastructure in the
commission of the crimes carried out pursuant to the JCE. Babić accepted that
he had participated in the JCE in 8 ways:
• As President of the SNC, and later, President of the SAO Krajina and
RSK, he formulated, promoted and encouraged the development and
implementation of policies designed to bring about the objective of the
JCE;
• He was instrumental in the establishment, support and maintenance of the
government bodies that ruled the SAO Krajina which, in cooperation with
the JNA, implemented the objectives of the JCE;
• He assisted in the reorganisation and recruitment of the TO forces of the
SAO Krajina and subsequently the RSK, which participated in the crimes
committed, and he was (from 1 June 1991) de jure commander-in-chief of
the armed forces of the SAO Krajina;
• He cooperated with the commander of the “Martić Police”, who were
involved in the commission of crimes;
Volume 6.indd 196 12/14/2010 2:34:05 PM 197
• He participated in the provision of financial, material, logistical and police
support for the military take-over of the territories in the SAO Krajina,
conducted by the TO, JNAand “Martić’s Police”;
• He requested the assistance of or facilitated the participation of JNAforces
in establishing and maintaining the SAO Krajina;
• He made ethnically based inflammatory speeches directed at adding to the
atmosphere of fear and hatred amongst Serbs living Croatia. 56
6.35 Beyond the ICTY case law, the Respondent asserts in relation to
Cerovljani that “the witnesses again did not have any direct knowledge about
the alleged crimes, but they only said that they had heard from others that
the perpetrators were local Serbs” (Counter-Memorial, paragraph 809). The
Respondent maintains this position, notwithstanding the clear findings to the
contrary of the ICTY in Martić:
“359. The Trial Chamber finds that the following persons from
Cerovljani were intentionally killed: Marija Antolović, Ana Blinja,
JosipBlinja,KatarinaBlinja,NikolaBlinja,AndrijaLikić,AnaLončar,
AntunLončar,andKataLončar(born1906).TheTrialChamberrecalls
the manner in which the victims from Hrvatska Dubica were rounded
up and detained in the fire station on 20 October 1991 and that they
were subsequently killed on 21 October 1991 at Krečane near Baćin
and buried in the mass grave at that location. Furthermore, the Trial
Chamber recalls its finding that the Milicija Krajine was responsible
for the killing of the victims detained in the fire station. The Trial
Chamber considers that the rounding up, detention and killing of
the above-named victims from Cerovljani is almost identical to the
events in Hrvatska Dubica, including that most of the victims were
buried at the mass grave in Krečane. It is therefore established beyond
reasonable doubt that the above-mentioned victims from Cerovljani
were killed on or around 20 or 21 October 1991 either by the Milicija
Krajine, or units of the JNA or the TO, or a combination of some of
them that the Trial Chamber has found were present in the area at
this time. The Trial Chamber considers it proven beyond reasonable
doubt that these victims were civilians and that they were not taking
an active part in the hostilities at the time of their deaths. The Trial
Chamber therefore concludes that all the elements of murder as a
crime against humanity (Count 3) and as a violation of the laws or
customs of war (Count 4) have been established.
360. The Trial Chamber finds that on 13, 21 and 24 September 1991,
armed Serbs from Živaja under the command of Nikola Begović burnt
10housesinCerovljani.TheTrialChamberfindsthatinasmallvillage
56 Babić, para. 24.
Volume 6.indd 197 12/14/2010 2:34:05 PM 198
of some 500 people, the destruction of 10 houses must be regarded
as destruction on a large scale. The Trial Chamber finds that there
is evidence that this destruction was not carried out for reasons of
military necessity. In this regard, theTrial Chamber notes in particular
the evidence that only elderly persons remained in Cerovljani and that
the armed Serbs came on three separate occasions. Finally, the intent
of the perpetrators may be inferred from the repeated and deliberate
nature of the attacks, as well as from the absence of any military
necessity. The Trial Chamber therefore finds that the elements of
wanton destruction of villages or devastation not justified by military
necessity (Count 12) have been met.
361. The Trial Chamber finds that on 24 September 1991 the same
armed Serbs damaged the Catholic Church in Cerovljani. The Trial
Chamber finds that it has been proven that the church was not used
for military purposes at the time it was damaged. The intent of the
perpetrators to cause damage may be inferred from the fact that it
occurred without any military necessity and as part of a series of
repeated attacks targeting property in Cerovljani. The Trial Chamber
therefore concludes that the elements of the crime of destruction or
wilful damage done to institutions dedicated to education or religion
(Count 13) have been met.
…
363.TheTrialChamberconsidersthetotalityoftheevidenceinrelation
totheeventsinCerovljaniinSeptemberandOctober1991toestablish
that the Croat civilian population and Croat property, including the
Catholic Church, were the objects of attack. In this respect, the Trial
Chamberrecallsthesystematicandrepeatedincursionsintothevillage
by armed Serbs with resulting killings and destruction. Moreover, the
Trial Chamber recalls that a Croat civilian, Kata Lončar, survived the
occupation because she had connections with the Serbs. The Trial
Chamber therefore finds it established beyond reasonable doubt that
the killings of the ten victims referred to above were carried out with
intent to discriminate on the basis of Croat ethnicity. Moreover, the
Trial Chamber considers the evidence to establish beyond reasonable
doubtthatthedestructionofprivatehousesandoftheCatholicChurch
was carried out with the same discriminatory intent. The elements
of the crime of persecutions (Count 1) have therefore been met in
relation to the killings and the destruction in Cerovljani.”
6.36 Similarly, in relation to Hrvatska Dubica, the Respondent asserts
that the “witnesses referred to by the Applicant … did not have direct
knowledge on the killings … and they only heard that the perpetrators were
Volume 6.indd 198 12/14/2010 2:34:05 PM 199
local Serbs.” (Counter-Memorial, paragraph 810). This stance is maintained,
notwithstanding the following findings of the ICTY in Martić:
“354. The Trial Chamber finds that the following 41 persons were
detainedinthefirestationinHrvatskaDubicaon20October1991and
intentionally killed the following day at Krečane near Baćin: Katarina
Alavančić, Terezija Alavančić, Josip Antolović, Marija Batinović,
Mara Čorić, Mijo Čović, Marija Delić, Ana Dikulić, Ruža Dikulić,
Sofija Dikulić, Stjepan Dikulić, Antun Đukić, Marija Đukić, Antun
Đurinović, Ana Ferić, Juraj Ferić, Kata Ferić, Filip Jukić, Marija
Jukić, Jozo Karanović,Antun Krivajić, Reza Krivajić, Barbara Kropf,
Pavao Kropf, Ivan Kulišić, Nikola Lončarić, Antun Mucavac, Ivo
Pezo, Sofija Pezo,Anka Piktaja, Stjepan Sabljar, Veronika Stanković,
Antun Svračić, Marija Svračić,Ana Tepić, Dusan Tepić, Ivan Trninić,
Ivo Trninić, Kata Trninić, Terezija Trninić, and Katarina Vladić. The
Trial Chamber finds that it has been proven beyond reasonable doubt
that all victims were civilians and that they were taking no active part
in the hostilities at the time of their deaths. Based on the evidence
concerning the organised rounding up, detention and guarding of the
civilians at the fire station by the Milicija Krajine, and the evidence
thatthevictimswerekilledonlyonedaysubsequenttotheirdetention,
the Trial Chamber considers it established beyond reasonable doubt
that the Milicija Krajine was responsible for these killings. The Trial
Chamber finds that all the elements of murder as a crime against
humanity (Count 3) and as a violation of the laws or customs of war
(Count 4) have been established.
355. The Trial Chamber heard evidence that between mid-September
1991 and mid-October 1991, approximately ten Croat or mixed
ethnicityhousesweredestroyedinHrvatskaDubica.Thereisevidence
that “reservists” were involved in these acts. The Trial Chamber notes
in particular that by mid-September 1991 there were only some 60
mainly elderly people remaining in the village and considers that this
destruction was not justified by military necessity. However, the Trial
Chamber considers that the destruction of 10 houses in a village of
some 400 to 500 households gives rise to doubt as to whether this
destruction can be considered as destruction on a large scale. The
Trial Chamber therefore finds that the elements of wanton destruction
of villages or devastation not justified by military necessity (Count
12) have not been met.
…
357.TheTrial Chamber heard evidence that the JNA,TO and Milicija
Krajine took part in looting of Croat houses in Hrvatska Dubica
Volume 6.indd 199 12/14/2010 2:34:05 PM 200
from mid-September 1991 and stole cars, tractors, tools, machinery,
furniture and cattle.1100 The Trial Chamber finds that this intentional
appropriation of property was carried out without lawful basis or legal
justification. Furthermore, given the scale of the looting, the Trial
Chamber finds that it resulted in grave consequences for the victims,
having regard to the overall effect on the civilian population and the
multitude of offences committed. The Trial Chamber finds that all the
elements of the crime of plunder of public or private property (Count
14) have been established.
358. The Trial Chamber recalls that among the persons rounded up
in the fire station in Hrvatska Dubica, the clear majority were Croats.
The Trial Chamber notes that there were also Serbs among those
rounded up. However, the evidence shows that three Serbs managed
to leave the fire station and that seven Croats managed to leave the fire
station after their Serb neighbours or friends had contacted the guards.
The Trial Chamber finds that the killings of the above-mentioned 41
victims were carried out with intent to discriminate on the basis of
Croat ethnicity. The elements of the crime of persecutions (Count 1)
have therefore been met in relation to these killings.”
6.37 It is of note that the Respondent does not, however, dispute the
Applicant’s case in relation the atrocities committed in Baćin. The ICTY in
Martić recorded the following findings:
“364. The Trial Chamber recalls that Vera Jukić, Terezija Kramarić,
Mijo Krnić, Marija Milasinović, Marija Šestić and Soka Volarević
were exhumed from the mass grave at Krečane near Baćin, and that
Nikola Barunović was exhumed from the mass grave at Višnjevački
Bok, where Ivo Pezo, who had previously been detained at the fire
station in Hrvatska Dubica, was also exhumed. On the basis of
this evidence, the Trial Chamber considers it established beyond
reasonable doubt that these seven victims were killed at or around the
same time as the victims from Hrvatska Dubica and Cerovljani were
killed. Moreover, the Trial Chamber considers it established beyond
reasonable doubt that these victims were intentionally killed either by
theMilicijaKrajine,orunitsoftheJNAortheTO,oracombinationof
some of them which the Trial Chamber has found were present in the
area from mid-October 1991. The Trial Chamber finds it established
beyond reasonable doubt that the victims were civilians and that they
were taking no active part in the hostilities at the time of their deaths.
The Trial Chamber concludes that the elements of murder as a crime
against humanity (Count 3) and as a violation of the laws or customs
of war (Count 4) have been established.
Volume 6.indd 200 12/14/2010 2:34:05 PM 201
365.TheTrialChamberfindsthatthefollowing21personsfromBaćin
were intentionally killed around October 1991: Matija Barunović,
Antun Bunjevac, Tomo Bunjevac, Antun Čorić, Barica Čorić, Josip
Čorić, Josip Čorić, Vera Čorić, Nikola Felbabić, Grga Glavinić,Anka
Josipović, Ankica Josipović, Ivan Josipović, Josip Karagić, Kata
Lončar (born 1931), Stjepan Lončar, Antun Ordanić, Luka Ordanić,
Antun Pavić, Matija Pavić and Nikola Vrpoljac. The Trial Chamber
finds it established beyond reasonable doubt that the victims were
civilians and that they were taking no active part in the hostilities
at the time of their deaths. Based on the totality of the evidence, the
Trial Chamber finds it established beyond reasonable doubt that the
above-mentioned victims from Baćin were killed around October
1991 either by the Milicija Krajine, or units of the JNA or the TO, or
a combination of some of them which the Trial Chamber has found
were present in the area at this time. The Trial Chamber finds that the
elements of crimes of murder as a crime against humanity (Count 3)
and of murder as a violation of the laws or customs of war (Count 4)
have been established.
…
367. The Trial Chamber recalls that in 1991 the population in Baćin
was 95% Croat and 1.5% Serb. Even making allowance for the
possibility that there may have been a few Serbs among the 21 victims
referred to above, this does not affect the Trial Chamber’s assessment
that these killings were carried out with intent to discriminate on the
basis of Croat ethnicity. With regard to the six victims exhumed from
the mass graves in Krečane near Baćin and in Višnjevački Bok, the
TrialChamberrecallsitsfindingsregardingthekillingofpersonsfrom
Cerovljani and Hrvatska Dubica and finds that also these six killings
were carried out with intent to discriminate on the basis of Croat
ethnicity. The Trial Chamber therefore finds that all the elements of
the crime of persecution (Count 1) have been met.”
6.38 The Respondent’s remaining specific observations in relation
to Hrvatska Kostajnica municipality concern the allegedly indirect and
inadequate evidence relied upon by theApplicant as to events in Kostrići and
Kostajnički Majur (Counter-Memorial, paragraphs 806-807).The Respondent
also comments (at paragraph 821) that the JNA involvement is mentioned
by the Applicant in relation to Hrvatska Kostajnica only in relation to the
fighting at Kostajnički Majur, and not the alleged killings. The Respondent’s
comments must, however, be viewed against the background of the general
observations made in Chapter 2, in particular at paragraph 2.44, and against
the overwhelming and clear findings of the ICTY in relation to the conduct of
the Serb armed forces in Hrvatska Kostajnica municipality.
Volume 6.indd 201 12/14/2010 2:34:05 PM 202
6.39 It is notable that the Respondent does not specifically challenge the
Applicant’scaseorevidenceinrelationtothekillingoftwoCroatsinHrvatska
Kostajnica on 13 September 1991 (Memorial, paragraph 5.111), nor the
allegations in relation to Graboštani, Panjani or Predore (Memorial, paragraph
5.122). Since the Memorial was prepared, theApplicant has obtained updated
exhumation data for Hrvatska Kostajnica Municipality. 57This data confirms
that 127 bodies have been exhumed from various sites in the area.
(8) r e s p o n ’s Ge n e r loM Me n t o n Ba n o v i n a
6.40 The Respondent concludes its comments in relation to Banovina by
statingthat“itisobviousthattheallegedkillingsinBanovinawereperpetrated
on a random basis and in a longer period of time, which only points to the
absence of any genocidal intent on behalf of the perpetrators. Moreover, the
randomnatureoftheactsstronglyimpliesthattheywerenotpartofagenocidal
plan or policy attributable to the Respondent.” (Counter-Memorial, paragraph
815) That observation is irreconcilable with the findings of the ICTY, set out
above, that the conduct in Banovina was systematic and amounted to crimes
against humanity. The ICTYfound that the killings had been part of a “regime
of persecutions”, established pursuant to a joint criminal enterprise within
the Serbian political and military infrastructure to systematically attack the
civilian Croat population. The ICTY makes numerous references to incidents
being “systematic” and “organised”. 58It is untenable for the Respondent to
assert that the attacks were “random”.
6.41 The Respondent also asserts that the fact that the ICTY did not find
the conduct in Banovina to amount to exterminations is probative of the
issues in this case (Counter-Memorial, paragraphs 817-818). Again, that is
misconceived,incircumstanceswheretheICTYrepeatedlyfoundtheconduct,
including the killings, to have amounted to the crime against humanity of
persecutions,whichisentirelyconsistentwiththeApplicant’scase:seefurther,
Chapter 9 at paragraph 9.15. It has always been the Applicant’s case that the
genocidal plan executed against the Croat population was not confined only to
killings, but extended to numerous physical and psychological methods which
have been largely ignored by the Respondent.
57 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
58 See, for example, Martić para. 405.
Volume 6.indd 202 12/14/2010 2:34:05 PM 203
SECTION THREE: kORDuNAND LIkA
(9) M u n i c i p a lvirGi nMo s t
6.42 Since the Memorial was prepared, theApplicant has obtained updated
exhumationdataforVrginmostMunicipality. 59Thisdataconfirmsthat8bodies
have been exhumed from various sites in the area.
6.43 The Respondent asserts that the evidence in relation to the killing of
the Britvec family in Crna Drga is inadequate (Counter-Memorial, paragraph
824). The Applicant has relied upon the statements of two witnessesndI.
B. and S.C., the latter of whom was a security officer of the 2
Battalion of the Serbian Brigade Command. The evidence of the witnesses
when read together gives a clear account of the B. family being shot by
Serbs and attempts being made to thwart any subsequent investigation into the
murders. It is notable that the Respondent does not dispute other aspects of
the evidence given by I.B..
6.44 The Respondent’s comments on the evidence in relation the JNA’s
involvement in the forced expulsion of civilians from Novo Selo Lasinjsko
and Lasinja are misconceived (Counter-Memorial, paragraph 825). R.
M. is clear that his JNA unit had been in the area “for some time”
61
before 20 March 1992. He is absolutely clear that there was no fighting: “We
had known that the villages were abandoned as well as Lasinja itself, so we
knew there were going to be no resistance. The inhabitants left the villages
after constant artillery and mortar fire that was directed to these villages for a
long time before this final attack.”
(10) M u n i c i p a lsil u n j
6.45 The Respondent’s summary and subsequent criticisms of the
Applicant’s case in relation to Slunj municipality are, on many occasions,
inaccurate. The Respondent fails to mention in its summary the occupation
and subsequent destruction of numerous villages, including Cvitovići,
Vukovići, Gnojnice, Lađevac and Grabovac (Memorial, paragraph 5.141).
This is confirmed by the findings of the ICTY in Martić, which records Milan
Babić as testifying as follows:
59 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
60apter 5, paras. 5.12-13, supra.
Witness statements of I.B. and S.C., Memorial, Annexes, vol 2(III),
annexes 341 and 342. It is also of note that the ICTY has found that on “16 August 1991
four Croatian men were reported to have been killed when they returned to the village of
Pecki (Vrginmost) to feed their livestock; the village had been occupied by ‘Serbian forces’.”
(Martić, para. 324, footnote 1002, in reliance on the Helsinki Watch Report sent to Slobodan
Milošević on 21 January 1992: Report from Helsinki Watch to President Slobodan Milošević
and General Blagoje Adžić, 21 January 1992, Annex 99.
61 Memorial, Annexes, vol 2(III), annex 343.
Volume 6.indd 203 12/14/2010 2:34:06 PM 204
“MilanBabićtravelledtoLipovačaandvillagesinthesurroundingarea
in 1993 and testified that he saw “villages which used to be populated
by Croats and Croat houses were devastated and there were no Croat
residents any more.” Upon returning to Lipovača in 1995, Witness
MM-036 found Lipovača and other villages in the municipality looted
and burnt.” 62
6.46 Thereafter, the Respondent raises general criticisms that the evidence
relied upon by theApplicant is second-hand, as addressed by theApplicant in
Chapter 2 of this Reply, at paragraph 2.44. Moreover, that criticism is on many
occasions clearly misconceived:
• The witness statement of M.P. gives firsthand and not hearsay
evidence of the killings. 63 Moreover, he gives a graphic and compelling
account of the torture meted out to the inhabitants of Lađevac, which
remains unchallenged by the Respondent.
• Similarly, M.S. gives a detailed account of finding three women
naked and butchered in a house, being eaten by pigs, shortly after the
JNA and Territorial Defence had been in the village, interrogating the
local population. 64 The Respondent does not challenge the veracity of
the evidence given by the witness of the other maltreatment, looting and
intimidation carried out in the area.
• Likewise, the assertion that M.M. had only ‘heard about’a murder
is misleading: the witness gives a full account of the killing of Valentić
Jure, which he watched from his house. He saw the victim being shot by
one of three Serb armed forces, then being doused in petrol, dragged to a
barn and everything being set on fire. The assertion that he has no direct
65
knowledge is plainly wrong.
• The statement of J.T. again provides direct knowledge of the
66
murderofDaneBogović,contrarytotheassertionoftheRespondent. The
Respondent then does not dispute either the remainder of the allegations
made in that statement, or the others provided in relation to Lađevac,
including the account of M.G.*, which contains direct evidence
about the torture and murder of Mile Radočaj and further evidence about
other killings.67
6.47 The Respondent makes no mention of the conviction by its own
Belgrade War Crimes Chamber of Zdravko Pašić for the war crime of murder
62 Martić, para. 209.
63 Memorial, Annexes, vol 2(III), annex 346.
64 Memorial, Annexes, vol 2(III), annex 350.
65
66 Memorial, Annexes, vol 2(III), annex 351.
67 Memorial, Annexes, vol 2(III), annex 354.
Memorial, Annexes, vol 2(III), annex 353.
Volume 6.indd 204 12/14/2010 2:34:06 PM 205
in relation to the Croat civilian, Dragutin Kusić, in Slunj on 22/23 December
1991. The Chamber specifically noted that the motivation for the killing was
the Croat ethnicity of the victim.68
6.48 The Respondent is compelled to concede that the ICTY has made
relevant findings in relation to Slunj municipality in its judgment in Martić
(Counter-Memorial, paragraphs 833-834), although it seeks to minimise the
significance of those findings. The salient parts of the ICTY’s findings in
relation to Lipovača, and the murder of civilians, is as follows:
“202. At the end of September or in early October 1991, the JNA
entered Lipovača and almost all civilian inhabitants fled, with the
exception of about 20-50 people. The JNA stayed for seven to eight
days and fired from tanks at the Croatian police in Drežnik Grad and
Rakovica and a Catholic church in Drežnik Grad. During this stay,
some JNA soldiers warned a witness that “when we leave, beware
of the reserve forces of those paramilitary units “who would” beat
the people, set houses on fire, loot ‘and who would kill’regardless of
age.” When the JNA troops left, several of the people who remained
in the village fled to the forest and spent the night there.
203. Sometime in October 1991, after the JNA had left, armed units
including ‘Serb paramilitary units’from the region and outside of the
region arrived in Lipovaca. These forces were called ‘reserve forces,
Martić’s troops or Martić’s army’, and that they wore uniforms ‘like
the ones that the army had’.
204. On 27 October 1991, a JNA Miltary Police unit led by Milan
Popović, together with members of theTO and uniformed local Serbs,
arrived in the village of Nova Kršlja adjacent to Lipovača. The JNA
soldiers wore JNA uniforms whereas the TO soldiers wore black
uniforms. They arrested all of the young Croat men, including Ivan
Marjanović’s son Marijan, and searched Ivan Marjanović’s house for
weapons. On the next day, the soldiers returned to Ivan Marjanović’s
house and demanded that he surrender his rifle to them, even though
he did not have one. The soldiers then beat him severely, kicked him
in the groin and broke his wrist. They again returned the next day
and told him he was not allowed to leave his house or its immediate
surroundings.
205. At the end of October 1991, some time after the arrival of
the paramilitary units, the bodies of Franjo Brozinčević, Marija
Brozinčević, Mira Brozinčević, and Katarina Cindrić were found in
Franjo Brozinčević’s house in Lipovača.All four victims were dressed
68 District Court of Belgrade, War Crimes Council (K.V. 4/2007); Supreme Court of Serbia
(Kž. I r.z.2/08).
Volume 6.indd 205 12/14/2010 2:34:06 PM 206
in civilian clothes and had been killed by gunshots.
206. Between 29 and 31 October 1991, Nelo Kotur, a local Serb
commander, came to the house of Ivan Marjanović and told him
that “the Serbs” had killed some Croats and told Ivan Marjanović
to go with him to Lipovača to bury the victims. Nelo Kotur, Ivan
Marjanović, and three other Croat villagers, drove to Lipovača and
passed a checkpoint manned by “Martić’s men”.
207. The group of men arrived in Lipovaca at 0900 hours and went
to the house of Mate Brozinčević, where they found his body in the
kitchen with several bullet holes in the stomach. Mate’s wife, Roza,
had also been shot, and the body of their son Mirko was lying at the
entrance to the bedroom with a bullet hole in the neck. All victims
wore civilian clothing.
208. In June 1996, the above-mentioned seven individuals, who are
listed in the Indictment, were exhumed from mass graves in Lipovača
Drežnička.” 69
6.49 The Respondent fails to note, however, the highly significant findings
of the ICTY in Martić in relation to the killings in Vukovići, and in particular
the execution of 8 Croat civilians by JNAsoldiers in on 7 November 1991: 70
“212. … Vukovići was shelled at around noon on 8 October 1991,
after which there was shooting in the village by unidentified armed
Serbs. The next morning, Tomo Vuković was found dead in front of
his burnt down house and at least two more houses had burnt down.
Around 14 October 1991, Mile Lončar, an invalid man, and his father,
Ivan Lončar, were found hanged in their house. …
214. On 7 November 1991, there was a large group of soldiers present
in Vukovići. The soldiers were dressed in green camouflage uniforms
and their commanders wore JNA caps with a red star. There were
local people among these troops and there was also a JNA special
unit present from Niš, Serbia, who wore darker camouflage uniforms.
The soldiers came to Nikola “Šojka” Vuković’s house in Vukovići
and lined up and killed Dane Vuković (son of Poldin), Dane Vuković
(son of Mate), Lucija Vuković, Milka Vuković, Vjekoslav Vuković,
Joso Matovina and Nikola Matovina. Nikola “Šojka” Vuković (born
1926) was too sick to leave the house and was shot from the window
69 The attacks on Lipovača and surrounding areas were also the subject of Milan Babić’s
guilty plea see Babić, para. 15. See also footnote 1012 to the Martić judgment, recording
“that in Slunj a Croat was beaten to death and his father beaten into a coma by three persons
in local “Milicija” uniforms”.
70 The destruction of Vukovići is dealt with at para. 5.141 of the Applicant’s Memorial.
Passing reference is made to the killings in “Vuković” para. 861 of the Counter-Memorial.
Volume 6.indd 206 12/14/2010 2:34:06 PM 207
while lying in his bed.All killed individuals were Croat civilians. The
evidence shows that one or two houses were burnt in Vukovići on 7
November 1991 by members of these units.
215. The Defence pointed out certain discrepancies in the evidence
concerning how the killings in Vukovići on 7 November 1991
were carried out. However, the Trial Chamber considers that these
discrepancies are not material and therefore do not affect its finding
that these killings were committed.” 71
6.50 ThefindingsinrelationtoVukovićiconfirmtheApplicant’sarguments
and significantly undermine the Respondent’s attempts to dissociate the JNA
from the killings in Slunj municipality with the assertion that the JNA had
only been present in Lipovača from 7-8 days (Counter-Memorial, paragraph
834). In relation to Vukovići, the ICTY in Martić stated:
“371. The Trial Chamber finds that Tomo Vuković was intentionally
killed by unidentified armed Serbs in Vukovići on 8 October 1991.
The Trial Chamber considers it proven beyond reasonable doubt that
Tomo Vuković was a civilian and that he was not taking an active
part in the hostilities at the time of his death. Moreover, the Trial
Chamber finds that Joso Matovina, Nikola Matovina, Dane Vuković
(son of Poldin), Dane Vuković (son of Mate), Lucija Vuković, Milka
Vuković,Nikola“Šojka”Vuković(born1926)andVjekoslavVuković
were intentionally killed on 7 November 1991. The Trial Chamber
finds that all victims were civilians and that none of them were taking
an active part in the hostilities at the time of their deaths. The Trial
Chamber finds that on 7 November 1991 there was a mixture of JNA
soldiers, including members of a JNA special unit from Niš, as well
as local armed men present in Vukovići. The Trial Chamber finds it
proven beyond reasonable doubt that these groups of soldiers were
responsible for the killings of these victims.”
6.51 Most significantly, perhaps, the Respondent entirely fails to address
the finding of the ICTY in Martić that the JNA acted in coordination with the
TO and militia groups in committing the atrocities in this region:
“344. … During the summer and autumn of 1991, numerous attacks
were carried out on Croat majority villages by the JNA acting in
coordination with the TO and the Milicija Krajine. … Furthermore,
evidence shows that the leadership established the armed forces of
the SAO Krajina, made up of the TO and the Milicija Krajine, and
cooperated with the JNAin organising operations on the ground.”
71 The 7 November 1991 attack on Vukovići was also the subject of the Milošević Indictment
at para. 43.
Volume 6.indd 207 12/14/2010 2:34:06 PM 208
The Respondent’s attempts to dissociate the JNA are misconceived, not
substantiated with any evidence and are contrary to the findings of the ICTY.
6.52 Since the Memorial was prepared, theApplicant has obtained updated
72
exhumation data for Slunj Municipality. This data confirms that 48 bodies
have been exhumed from various sites in the area.
(11) M u n i c i p a loiGu l i n
6.53 The Respondent concedes that “most of the acts alleged to have taken
placeinSaborskohavebeenconfirmedbythejudgmentoftheICTY.”(Counter-
Memorial, paragraph 841). The ICTY in Martić gave detailed consideration
to the events in Saborsko, and in particular the attack on 12 November 1991,
conducted by the JNA, TO and paramilitaries, resulting in the killing of at
least 20 civilians on 12 November 1991 and a further 14 civilians thereafter.
The ICTY concluded that crimes against humanity of murder and persecution
had been committed, as well as the war crimes of murder, wanton destruction
and plunder. The ICTYfirst gave an overview of the attack on Saborsko on 12
November 1991:
“225. Saborsko was attacked mid-morning on 12 November 1991 by
Tactical Group 2 (“TG-2”), under the command of Colonel Čedomir
Bulat, and the 5th Partisan Brigade, both of which were within the
structure of the JNA 13th Corps. A unit of the Plaški SDB, the Plaški
TOBrigadeandMilicijaKrajineunitsparticipatedintheattack.Within
thePlaškiTOBrigade,abattalionconsistingofthreecompaniesunder
the command of Bogdan Grba participated.
226. The attack commenced with aerial bombing followed by an
artillery attack. Afterwards, ground units, including tanks, moved in
on Saborsko from three axes. During the attack, the church of St. John
was hit by a tank shell but the tower remained standing. The church
of the Mother of God was also shelled and damaged during the attack.
That church was used as an observation post because there was a clear
view of the Lička Jasenica barracks from it.The fighting went on until
some point between 1400 hours and 1700 hours; the tanks withdrew
around 1800 hours.There were no casualties on the Serb side whereas
“on the Croatian [MUP] side” there were 50 dead.
227.After the attack, there were many Serb soldiers and policemen in
the centre of Saborsko. The evidence shows that a shop was looted by
Zdravko Pejić and individuals with the last names Cekić or Cvekić,
and Momčilović, both of whom were members of Ðuro “Snjaka”
Ogrizović’s company. An individual identified as “Peić” together
72See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
Volume 6.indd 208 12/14/2010 2:34:06 PM 209
with Željko “Buba” Mudrić and Nedeljko “Kiča” Trbojević, as well
as “other Martić’s men” drove away in private cars they found in
Saborsko. Moreover, all the tractors in Saborsko were driven away,
subsequently to be put up for auction, and household goods were
stolen by plunderers. There is also evidence that more than 50 cattle
from Saborsko were brought to Plaski and that 17 sheep were taken
to Kunić. Many houses in Saborsko were set alight and burnt after the
attack. The evidence shows that the perpetrators, who were engaged
in the burning of the houses included Nedeljko “Kiča” Trbojević,
“Peić”, Željko “Buba” Mudrić, as well as “other Martić’s men”.
Houses in the hamlets of Tuk and Dumenčići, and in the Serb hamlet
of Solaje, were also set alight. In Borik, both Croat and Serb houses
were burned. By mid-December 1991, both the church of St. John
and the church of the Mother of God had been destroyed. By 1995,
the whole of Saborsko, including the school, had been destroyed. The
only houses left standing were two Serb houses, which had been very
badly damaged.
228. Following the attack, most of the inhabitants of Saborsko fled
to Karlovac, Zagreb, and Ogulin. However, about 30 to 60 elderly
villagers remained in the village and were brought to the Lička
Jasenica barracks by the Plaški TO. After spending the night at the
barracks, they were taken by bus towards Ogulin and released in
territory controlled by the Croatian side.
6.54 Thereafter,theMartićTrialChamberconsideredindetailtheevidence
of killings in Saborsko during the attack:
“233. Beginning in October 1995, several grave sites were exhumed
in Saborsko. The biggest site was at Popov Šanac, located close to
the church of St. John, where the following 14 victims were found:
Ana Bičanić, Milan Bičanić, Nikola Bičanić, Petar Bičanić, Kata
Dumenčić, Nikola Dumenčić, Mate Matovina (born 1895), Milan
Matovina, Mate Špehar, Ivan Vuković, Jeka Vuković, Jure Vuković
(born 1929), Jure Vuković (born 1930), and Petar Vuković. In the
grave site at Borik, the following three victims were found: Darko
Dumenčić, Ivica Dumenčić, and Josip Štrk.The following ten victims
were found in individual graves in Saborsko: Leopold Conjar, Ante
Dumenčić,IvanMatovina,KataMatovina(born1920),KataMatovina
(born 1918), Lucija Matovina, Marija Matovina, Marta Matovina,
Slavica Matovina, and Slavko Sertić.
234. Considering in particular that there is direct evidence regarding
the killing of eight of the victims exhumed from the mass grave in
Popov Šanac, the Trial Chamber finds that all 14 victims exhumed
from that mass grave were killed in Saborsko on 12 November 1991.
Volume 6.indd 209 12/14/2010 2:34:06 PM 210
Moreover,basedonevidenceindicatingtheircausesofdeath,theTrial
Chamber considers it established beyond reasonable doubt that also
Ivica Dumenčić, Kata Matovina (born 1920) and Slavko Sertić were
killed in Saborsko on 12 November 1991. Furthermore, considering
that Darko Dumenčić and Josip Štrk were found in the same mass
grave as Ivica Dumenčić, who was killed on 12 November 1991,
the Trial Chamber considers it established beyond reasonable doubt
that these two persons were killed on the same date. Lastly, while the
body of Jure/Juraj Štrk has not been recovered, the direct evidence
establishes that he was killed on 12 November 1991. The Trial
Chamber therefore finds beyond reasonable doubt that 20 persons
were killed on 12 November 1991. …
…
379. … With regard to the killings at Petar Bičanić’s house, the
evidence establishes that the two perpetrators wore Serbian dark grey
uniforms and helmets with a five pointed red star. The Trial Chamber
finds that they were members of units present in Saborsko after the
attack on 12 November 1991.With regard to the other twelve victims,
the Trial Chamber finds it established beyond reasonable doubt that
they were killed by members of units present in Saborsko after the
attack on 12 November 1991. The evidence proves that the eight
persons killed at Petar “Krtan” Bičanić’s house were civilians and
that they were not taking an active part in the hostilities at the time
of their deaths. Furthermore, the Trial Chamber concludes, based on
the totality of the evidence, thatAna Bičanić, Kata Dumenčić, Nikola
Dumenčić,KataMatovina,andMateMatovinawereciviliansandthat
they were not taking an active part in the hostilities at the time of their
deaths. … In conclusion, the Trial Chamber finds that the elements of
murder as a crime against humanity (Count 3) and as a violation of
the laws or customs of war (Count 4) have been established for the
killings of the following 13 victims: …
381. The Trial Chamber finds that after the attack on Saborsko,
civilian houses and property were burnt on a large scale by the Serb
forces which entered the village. The Trial Chamber finds that this
burning was carried out deliberately and was not justified by military
necessity, noting in particular the evidence that the attack had ceased
at the time this destruction took place. Consequently, the elements of
the crime of wanton destruction of villages or devastation not justified
by military necessity (Count 12) have been met. The Trial Chamber
heard evidence that Serb soldiers and policemen who participated
in the attack looted shops and businesses and took tractors, cars
and livestock. The Trial Chamber finds that this looting was done
Volume 6.indd 210 12/14/2010 2:34:06 PM 211
on a large scale, noting in particular the evidence that nearly every
household in Saborsko had a tractor stolen. The Trial Chamber finds
that this appropriation resulted in grave consequences for the victims,
taking into account the overall effect on the civilian population and
the multitude of offences committed. Furthermore, the evidence
establishes that this appropriation was done intentionally and without
lawfulbasisorlegaljustification.Theelementsofthecrimeofplunder
of public or private property underArticle 3 (Count 14) have therefore
been met.
383. The Trial Chamber recalls that some of the soldiers present in
Saborsko abused the inhabitants with profanities such as “Fuck your
Ustasha mother” and that all Croat villagers should be slaughtered.
The Trial Chamber further recalls that Saborsko was 93.9% Croat
and 3.3% Serb. Even making allowance for the possibility that there
may have been a few Serbs among the 13 victims referred to above,
this does not affect the Trial Chamber’s overall assessment that these
killings were carried out with intent to discriminate on the basis of
Croat ethnicity. The Trial Chamber therefore concludes that all the
elements of the crime of persecution (Count 1) have been met.” 73
6.55 NotwithstandingtheICTY’sfindingsandtheRespondent’sconcession
inrelationtothesame,anumberofcriticismsoftheApplicant’sevidencearestill
made.The Respondent’s comments at paragraphs 838 and 840 of the Counter-
Memorial focus on the evidence in relation to killings and imprisonment of
the local population in Saborsko, and the suggestion that there is no evidence
to support an objective of exterminating the Croat population of the village.
ThosecriticismsarewhollyunderminedbytheICTY’sfindings,setoutabove,
andbytheevidencerelieduponbytheApplicant.Bywayofexample,M.
M., a member of the TO who participated in the attack on Saborsko and
whose evidence is not specifically disputed by the Respondent, states: 74
“In the past month it was decided in the command that Saborsko
should be called ‘Ravna Gora’because it was planned that this village
should be cleaned so that name would suit it. They even brought the
panels with the name of the village written in Cyrillic script. Milan
ČikarafromLičkaJasenica,theprivatetransporterandBogdanJančić
called ‘Janjac’ (lamb) from Plaški transported the ammunition, the
bodies and other necessities. … Nikola Medaković and the other
commanders of the units, while they were issuing the orders to kill
the civilians in Saborsko, used to say that they are all Ustashas and
that they should all be killed and completely destroyed. That is the
73
The atrocities committed in Saborsko were also the subject of Milan Babić’s guilty plea
(see Babić, para. 15). They were also included in the Milošević Indictment paras. 36(a), 41,
and 44.
74 Memorial, Annexes, vol 2(III), annex 365.
Volume 6.indd 211 12/14/2010 2:34:06 PM 212
reason why all the houses were pulled down and all the people who
could have testified about those brutalities were killed.”
6.56 It is particularly surprising that the Respondent elects to use Saborsko
as an example in its closing remarks on Kordun and Lika of a location where
there was heavy fighting, such that “it is more than likely that all war related
casualties are included as victims in the Memorial.” (Counter-Memorial,
paragraph 870) That suggestion is unsustainable in the face of the ICTY’s
findings in relation to Sabrosko, from which it is apparent that the killings
were a methodical and cruel attack on an unarmed civilian population, driven
by ethnicity of the victims.
6.57 Since the Memorial was prepared, theApplicant has obtained updated
exhumation data for Ogulin Municipality. 75This data confirms that 18 bodies
have been exhumed from various sites in the area.
(12) M u n i c i p a lkia r l o v a c
6.58 The Respondent’s summary, at paragraph 842, omits any reference
to the systematic destruction of Karlovac town and the surrounding villages
and the deliberate shelling of cultural monuments and sacral objects (see
Memorial, paragraph 5.155).Thereafter, the Respondent criticises the absence
of direct evidence to support the Applicant’s case in relation to Karlovac. In
doingso,theRespondentignorescertainpartsoftheevidenceofM.L.and
D.P., which detail the role of the JNAin the attacks on Karlovac,
and in particular the threats made and carried out by Colonel Marjanović to
shell the town extensively. 76
6.59 TheRespondentdoesnotdenythekillingof6CroatciviliansinBanski
Kovačevac, as set out in the Memorial at paragraph 5.157, and nor could it
in light of the fact that the Belgrade District Court’s War Crimes Chamber is
currently prosecuting 2 defendants, both members of the VRSK 19 thBrigade,
for the murders. 77The Indictment alleges that Pane Bulat ordered his troops to
bring the 6 remaining Serbs in the area to him, whereupon he executed them
using an automatic rifle, with the assistance of Rade Vranešević.
6.60 Since the Memorial was prepared, theApplicant has obtained updated
exhumation data for Karlovac Municipality. This data confirms that 2 bodies
have been exhumed from sites in the area.
75 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
76
77 Memorial, Annexes, vol 2(III), annexes 366 and 367.
Prosecutor v Pane Bulat and Rade Vranešević, Indictment No KTRZ-13/07 of 16 April
2008. Pane Bulat is specifically identified by the Applicant’s witnesses as being a perpetrator
of the murders: see R.M., Memorial, Annexes, vol 2(III), annex 343.
Volume 6.indd 212 12/14/2010 2:34:06 PM 213
(13) M u n i c i p a l oot o č a c
6.61 The Respondent’s summary (paragraph 846) is, again, misleading,
in that it does not mention the disappearance of Grga Bičanić (Memorial,
paragraph 5.160). The Respondent’s criticisms in relation to the Applicant’s
evidence are primarily generalised, focusing on the relative weight of hearsay
evidence, as to which, see Chapter 2, paragraph 2.44. Since the Memorial
was prepared, theApplicant has obtained updated exhumation data for Otočac
Municipality. 78 This data confirms that 4 bodies have been exhumed from
various sites in the area.
6.62 The Respondent is wrong to assert that the only evidence in relation
to the 5 Croats from Vrhovine is in MemorialAnnexes 374 and 375 (Counter-
Memorial, paragraph 848). Since the Memorial was prepared, the bodies of
the 5 victims have been located and identified. 79 The 5 Croats are recorded in
an official Serbian document as having been brought into the police station
and subsequently being taken away by Serbs with guns for “interrogation”. 80
This is corroborated by the evidence of the two witnesses, I. and K.
81
Č., about the arrest of the missing Croats. In addition, the Applicant has
obtained an Operational Report from the Internal Affairs Secretariat in Knin,
which confirms that the 5 Croats were arrested, then taken the next day for
“further investigation” by Predrag Baklajić, Nedeljko Brakus and Predrag
Baklajićinapolicevan.Theywerethenkilledsomewhereontheroadbetween
Homoljac and Babin Potok, and their bodies were thrown into a well. After
UNPROFOR established a checkpoint near the well, the bodies were removed
by the perpetrators of the crime, taken to a remote location and doused in oil
82
before being set on fire and then covered with branches.
6.63 The Respondent asserts, incorrectly, that the ICTYhas “dealt with the
crimes in the Otočac municipality and the Trial Chamber in the Martić case
found that only one person, Stipe Brajković, was killed on 21 November by
the group led by Predrag Baklajić.” (Counter-Memorial, paragraph 849). The
Indictment in Martić did not include any specific allegations in relation to
Otočac,soanyconsiderationoftheevidenceinrelationtoatrocitiescommitted
there was peripheral to the principal issues in that case, as the Trial Chamber
made clear at paragraphs 323 and 326 (where the killing of Stipe Brajković
is referred to). The implicit suggestion by the Respondent that the ICTY has
78 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
79 Republic of Croatia, Office for Detained and Missing Persons, Identification Performed at
80e Institute of Forensic Medicine and Criminology, 15 November 2002, Annex 37.
81 Memorial, Annexes, vol 2(III), annex 417.
Memorial, Annexes, vol 2(III), annexes 374 and 375.
82 Internal Affairs Secretariat Knin, Operational Report, 14 July 1993, Annex 79. The Report
also details a number of further killings, lootings and mistreatment in the area. See also, the
further statement of B.B. concerning the killings of the Čorak family and other
attacks in Otočac municipality: Witness Statement of B.B., Annex 4.
Volume 6.indd 213 12/14/2010 2:34:06 PM 214
conducted a full review of the available evidence for Otočac and rejected it in
relation to all but one killing is highly misleading.
(14) M u n i c i p a l Goospić
6.64 The Respondent’s only direct criticisms of the evidence in relation to
Gospićmunicipalityaregeneralisedandare,accordingly,dealtwithinChapter
2. The Respondent does not dispute any of the specific allegations made in
the Applicant’s Memorial (Counter-Memorial, paragraphs 851-856). Since
the Memorial was prepared, the Applicant has obtained updated exhumation
data for Gospić Municipality. 83 This data confirms that 6 bodies have been
exhumed from various sites in the area.
6.65 TheRespondentreferstothefindingsoftheTrialChamberinMartićin
relation to Široka Kula.As the Respondent correctly identifies, the Indictment
did not include allegations in relation to Gospić municipality, but the ICTY
commented on the evidence that 13 people had been killed by the Serbian
police, and took it into account when convicting Martić of the crime against
humanity of persecution. 84Whilst the ICTY was not tasked with a full review
of the evidence in relation to Gospić municipality, its findings in so far as it
has made some are supportive of theApplicant’s case. 85
(15) M u n i c i p a ltii t o k o r e n i c a
6.66 The Respondent’s summary, at paragraph 857, of theApplicant’s case
is inaccurate and incomplete in that it: does not include the allegations of
setting Poljanak on fire on 8/9 October 1991 or the torture of M.L.
by men in JNA uniforms (Memorial, 5.177); and it wrongly lists 2 people
being killed in Smoljanac on 2 December 1991 when it is theApplicant’s case
that 8 people were killed on 4 December 1991 (Memorial, paragraph 5.181).
The Respondent also fails to make reference to the restrictions on freedom
of movement and the effective forced exile of the Croat population from
Smoljanac (Memorial, paragraph 181). Since the Memorial was prepared, the
86
Applicant has obtained updated exhumation data for Korenica Municipality.
This data confirms that 27 bodies have been exhumed from various sites in
the area.
83See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
84 See Martić para. 324, footnote 1002, in reliance on the Helsinki Watch Report sent to
Slobodan Milošević on 21 January 1992: Report from Helsinki Watch to President Slobodan
Milošević and General Blagoje Adžić, 21 January 1992, Annex 99.
85The Applicant has also obtained a further witness statement from S.Đ. confirming
the circumstances of the killings in Široka Kula: Witness Statement of S.Đ.
11.
86See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra. The Municipality of Titova Korenica is now known as the
Municipality of Korenica.
Volume 6.indd 214 12/14/2010 2:34:06 PM 215
6.67 The Respondent does not specifically dispute a number of the
Applicant’s allegations in relation to Titova Korenica. In particular, the
Respondent does not directly challenge the evidence that detained Croats
were tortured in Korenica, that 8 people were killed in Smoljanac on 4
December 1991, nor any of the killings in Poljanak. In relation to Poljanak,
the Respondent concedes that the ICTY in Martić “confirmed the killings in
Poljanak and its hamlet Vuković.” This concession is well-made, in light of
the following findings of the ICTY, which founded a conviction for the crime
against humanity of persecution:
“211. Poljanak was shelled for the first time on 28 August 1991 and
was shelled daily after that. A few families initially left but returned
two to three days later.
212. On 5 September 1991, women with small children and minors in
Poljanak and the surrounding villages left for Kraljevica, south-east
of the city of Rijeka on the Adriatic coast. Vukovići was shelled at
around noon on 8 October 1991, after which there was shooting in the
villagebyunidentifiedarmedSerbs.Thenextmorning,TomoVuković
was found dead in front of his burnt down house and at least two more
houses had burnt down. Around 14 October 1991, Mile Lončar, an
invalid man, and his father, Ivan Lončar, were found hanged in their
house.
213. There were no Croatian military units in Poljanak in the summer
and autumn of 1991. However, there was a civilian protection force
that would keep watch, but the members were either unarmed or had
two to three hunting rifles at their disposal.
…
216. Also on 7 November 1991, 20 armed soldiers dressed in
camouflage and olive-drab uniforms surrounded the house of Marica
Vuković, a Croat, in Poljanak. Marica Vuković did not know where
thesoldierswerefrombutconcludedthatsomemustbelocalsbecause
they appeared well informed about Marica Vuković and her family.
As soon as they arrived, the soldiers “captured” Marica Vuković and
the others present in the house. The soldiers tied the arms of Marica
Vuković’s husband Nikola Vuković (born 1938) and her father Ivan
Vuković. MaricaVuković, her daughter MiraVuković, her mother-in-
law JelenaVuković and her neighbour MarijaVuković were put under
a plum tree where they were slapped, insulted and interrogated. One
of the soldiers threatened Marica Vuković and also put a knife at her
throat. The soldier wore a glove and said that it was “so that I won’t
get my hand bloody when I slit the throats of Ustashas.”
87 The Applicant’s case on Vukovići is set out under Slunj Municipality, above, at para.
6.45.
Volume 6.indd 215 12/14/2010 2:34:06 PM 216
217. The women were separated from Ivan Vuković and Nikola
Vuković(born1938)andtakentoanearbymaizefieldwhereupontwo
or three other soldiers came from the direction of Vukovići, together
with a boy. The boy was put with the women. Subsequently, shooting
was heard from the house where Ivan Vuković and Nikola Vuković
had been left.
218. Soon thereafter, a soldier came to the women and told them to
flee. The women and the boy hid in the woods for a few hours. After
having seen some cars move away from the village, Marica Vuković
returned to her house and then came across the bodies of her father
and husband in the maize field. She saw that her husband’s “brains
were shattered” and that her father’s “skull wasn’t in place any more”.
On that day, neither her husband nor her father was armed or wearing
a uniform, nor were they members of a military force or the police.
219. The evidence shows that several houses, sheds and cars were
burnt in Poljanak on 7 November 1991, by the soldiers present in the
village. The evidence also shows that before the houses were burnt
private property was looted or destroyed. When torching the houses,
some soldiers made comments, such as “Milošević built the house
and Milošević is going to destroy it” and “what’s Tuđman done for
you?All you are going to get from him is a bullet in your head”.” 88
6.68 The Respondent directs specific criticism at the evidence in relation to
the killing of two Croats in Smoljanac on 8 October 1991 (Counter-Memorial,
paragraph 860). It is said that the witnesses do “not offer information on
the specific circumstances under which the killings took place.” That is a
misrepresentation of theApplicant’s evidence:
“On 8 thOctober 1991 the enemy army fiercely attacked the villages
of Vaganac and Drezničko Selište, while I was in the defence of the
village of Smoljanac, municipality of Titova Korenica, and together
with me were: A.R., Z.B., D.B., I.
B., N.R., M.R., M.M., I.M.,
M.H.,M.H.,A.H.,S.H.,N.H.,
M.H., J.Š., M.Š., R.R. and M.
M. On that day at dusk, from the direction of Višnjevača hill
a group of about 10 enemy soldiers came on foot to J.M.’s
house (Smoljanac 7), from where a few minutes later we heard
gunshots.After that the enemy soldiers went back towardsVisnjevaca
hill. Since we were not certain whether anyone of the enemy soldiers
stayed at J.M.’s house, we did not come near his house all
until 10th October 1991 in the morning when I saw J.M.
88 The attacks on Poljanak were also the subject of Milan Babić’s guilty plea in Babić, para.
15, set out above at para. 6.33.
Volume 6.indd 216 12/14/2010 2:34:07 PM 217
(son of Petar, born on 21st August 1930 in Saborsko, municipality
of Ogulin, address:…) and A.B. (maiden name S.,
born in 1919 in Lipovača, minicipality of Slunj, address: …) lying
dead in front of J.’s house. ... We put them onto a horse-wagon and
drove them further in the village, where two caskets were brought
later from Slunj in which we put J. and A. and drove them by a
van to the local cemetery in Drežnik Grad, where they were buried in
the same grave.” 89
6.69 TheApplicant has subsequently obtained a statement from one of the
TO officers present at the killings on 8 October 1991, which corroborates the
other available evidence. N.C. states:
“I remember that at the end of September or beginning of October
1991 we went to the Korana Bridge to cleanse the field, and in the
evening, before we set out, the messengers reported to us to gather
at the meeting point in the sports ground of the primary school in
Udbina, at a late hour, before morning. On that occasion, I think that
the entire troop gathered in the sports ground, it was lined up, the
commander of the troop at the time was J.K., I was in
the V squad, and S.U. called M. still wasn’t commander
of the squad. … M. pointed out that that we were making a
move, and that we would get definitive instructions in Korenica or
Plitivce. After this, grenade launchers, rocket launchers (“Zolja”),
bombsandammunitionweredistributedfromatruck,andIremember
that I carried a backup battery for RUP 12 (portable radio device set),
and I had commissioned an automatic gun M-58, calibre 7.62 mm.
…
When we reached the first houses [in Smoljanac] where someone
allegedly fired shots, I was told personally by U.S. called
M.toremainwithM.M.,andwhentherestofthesquad
went ahead, we approached a house where an older man was standing,
and M. asked him: Where are your sons, to which the man replied
In hell, together with you. At that moment, an old woman came from
the garden and asked the old man “What’s the matter”, to which he
replied “Nothing”, and the old woman came to him, stopped in front
of the house and started to cry. At that point, M.M. called
M. said he would revenge his brother who was then imprisoned in
the barracks in Gospić. The woman then said “I have nothing to do
with this”, and the man turned heading towards the door, to which
M. said I fuck your mother and that he’d riddle him with 30 bullets.
After this, the man turned to face us and I saw when M.M.
89 Witness Statement of P.B., Memorial, Annexes, vol 2(III), annex 392.
Volume 6.indd 217 12/14/2010 2:34:07 PM 218
trainedhisshortautomaticgunkillingthetwoofthemwithtwobursts.
I remember that he older man was skinny, a bit taller, and the woman
short, he, as far as I remember, was wearing darker trousers and a
“visor cap”, and the woman was wearing a dress, their house was
90
located just at the foot of the hill, but I don’t know their identity. “
6.70 The statement of N.C. undermines the Respondent’s
assertion (paragraph 860) that the Applicant’s other evidence revealed that
heavy fighting was going on at the time of the 8 October 1991 killings. It is
apparent that the two civilian victims were unarmed at the time they were
shot.
(16) M u n i c i p a l Gor a č a c
6.71 The Respondent does not summarise or dispute several parts of
the Applicant’s case in relation to Gracac municipality: in particular, the
allegationsthatCroatpropertieswereburneddown,churchesweredamagedor
destroyed and the graveyard in Lovinac was desecrated (Memorial, paragraph
5.186).These are significant omissions. Since the Memorial was prepared, the
91
Applicant has obtained updated exhumation data for Gračac Municipality.
This data confirms that 5 bodies have been exhumed from various sites in the
area.
6.72 Thereafter, the Respondent is critical of the absence of evidence as
to the circumstances under which several of the killings occurred. However,
the Respondent’s assertions are undermined by the findings of the ICTY in
Martić that five Croats were killed in Lovinac between 5 and 14August 1991
by Serbian paramilitary groups. 92As the Respondent recognises, these crimes
did not form part of the Indictment, and accordingly no formal conviction was
entered in relation to them. Moreover, the fact that the crimes in Lovinac were
not part of the Indictment means that the findings of the ICTY cannot be held
out by the Respondent as a complete account of the atrocities committed in
Lovinac.Thefindingsthataremade,however,stronglysupporttheApplicant’s
case.
SECTION FOuR: DALmATIA
90 Witness Statements of N.C., Annex 9.
91 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
92apter 5, paras. 5.12-13, supra.
Martić,para.324,footnote1002,inrelianceontheHelsinkiWatchReportsenttoSlobodan
Milošević on 21 January 1992: Report from Helsinki Watch to President Slobodan Milošević
and General Blagoje Adžić, 21 January 1992, Annex 99.
Volume 6.indd 218 12/14/2010 2:34:07 PM 219
(17) M u n i c i p a lŠiiBenik
6.73 The Respondent’s summary of the Applicant’s case (Counter-
Memorial, paragraph 874) omits any reference to the expulsion of hundreds
of Croats from Šibenik municipality, as detailed in the Memorial, paragraphs
5.203-205. Since the Memorial was prepared, the Applicant has obtained
updated exhumation data for Šibenik Municipality. 93This data confirms that
16 bodies have been exhumed from various sites in the area.
6.74 Thereafter, the Respondent raises only generalised criticisms of
the Applicant’s evidence, which are principally addressed in Chapter 2, in
particular at paragraphs 2.42-45 and 2.55-57. However, the Respondent’s
assertion that “none of the witnesses whose statements are offered by the
Applicant had direct knowledge as to how and under what circumstances the
alleged killings occurred” is factually incorrect. The witness J.B. gives
direct evidence of the beatings that the victim, M.P., had suffered
at the hands of Serbs prior to finding his body in a cistern, badly beaten
and bruised, particularly in his groin area, on 12 March 1992. 94 Similarly,
the witness B.C. gives evidence as to the method by which M.
C. was killed (9 stab wounds made by a knife) on 7 January 1992, and
identifies the 4 men she believes to be responsible for the murder. B. 95
C. also gives evidence as to the beating, approximately 20 days later,
of M.K. by 3 named Serbs, 8 days after which he was found dead,
“with the veins on his arms and on his legs torn to pieces.”
(18) M u n i c i p a ldir nŠi
6.75 The Respondent’s summary of the Applicant’s case is incomplete
and inaccurate (Counter-Memorial, paragraph 878). At paragraph 878(a) the
Respondent incorrectly states that the 10 killings in Puljane occurred on 2
August 1993, when in fact they occurred on 2 February 1993.The Respondent
also omits to mention: the repeated evidence of serious physical abuse and
torture, set out in the Memorial at paragraphs 5.210-212; the detention of
Croats in prison camps, set out in the Memorial at paragraphs 5.207 and
5.212; the systematic harassment of the remaining Croat population, set out
in the Memorial at paragraphs 5.207, 5.209-211 including a number of rapes
(paragraph 5.112) ; forced labour (paragraph 5.210); forced exile (paragraphs
5.207-212); and the destruction of Croatian sacral and cultural objects
(paragraphs 5.209-212). Since the Memorial was prepared, the Applicant
has obtained updated exhumation data for Drniš Municipality. 96 This data
93See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
94 Memorial, Annexes, vol 2(III), annex 432.
95 Memorial, Annexes, vol 2(III), annex 433.
96See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
Volume 6.indd 219 12/14/2010 2:34:07 PM 220
confirms that 31 bodies have been exhumed from various sites in the area.The
Respondent’sspecificcriticismsaredirectedprincipallyatDrnišandMiljevci.
In relation to Drniš, the Respondent asserts that the witness M.P.
gives no information about the circumstances surrounding the 3 killings in
1993 (Counter-Memorial, paragraph 882). It is clear from M.P.’s
statement that she had herself been subjected to detention and threats from
Serb policemen and it was subsequent to that that the killings occurred. 97 It
is apparent from the state of the bodies that the killings were violent. The
Respondent does not dispute the repeated evidence of beatings, torture and
rape in Drniš. 98
6.76 In relation to Miljevci, the Respondent asserts that the witness
statements do not reveal the circumstances of the killings or the perpetrators.
Thatisanexaggerationoftheevidentialposition:forexample,M.M.
gives an account of P.K. arguing with Serbs and thereafter hearing 2
gunshots, before finding him lying dead the following morning in front of his
house. 99 Since the Memorial was prepared, theApplicant has obtained further
evidence corroborating that previously submitted. K.V., the widow of
I.V., gives a detailed account of her husband being shot during a raid on
Kaočine by Serb paramilitaries and JNAforces on 6 December 1991. 100
6.77 The Respondent thereafter makes a general assertion that all other
events are predicated on hearsay evidence. The Applicant responds to this
general assertion in Chapter 2. However, the assertion is factually incorrect in
relation to Kričke, when it is apparent from the statement of M.V.
that she gives a firsthand account of the events. 101 Similarly, the assertion that
I.G.’s statement “seems to be based on hearsay” is incorrect: there
is no indication that the evidence is anything other than firsthand. 102
6.78 The Applicant has also obtained further evidence in relation to the
killings in Drniš municipality:
• M.D. gives a detailed account of the killings of 25 Croats between
1992 and 1995, some of which are already referred to in the Memorial; 103
• Acrime scene report in relation to the killings of several Croats in Puljane
on2February1993(seeMemorial,paragraph5.207),detailingthegunshot
wounds found on all the victims, who were sitting in the kitchen of I.
B.’s house. The report also deals with the killings of Kata Parać and
97 Memorial, Annexes, vol 2(III), annex 442.
98 See, for example, the witness statement of M.M., Memorial, Annexes, vol 2(III),
annex 521.
99 Memorial, Annexes, vol 2(III), annex 445.
100
101 Witness Statements of K.V., Annex 27.
Memorial, Annexes, vol 2(III), annex 450.
102 Memorial, Annexes, vol 2(III), annex 460.
103 Witness Statement of M.D., Annex 10.
Volume 6.indd 220 12/14/2010 2:34:07 PM 221
Krste Bračić in the village of Oklaj;04
• An interview record with M.B.105ncerning the same killings in
Puljane on 2 February 1993. M.B. states that she saw the dead
bodies of the following Croats in their houses, after they had been killed
by Serbs: Ivan andAna Bračić, Pavao andAna Parać, Marija Bračić, Kaja
Parać, Krste Bračić and Mile Parać.
6.79 The Respondent asserts that the ICTY has not indicted or sentenced
anyoneinrelationtoDrnismunicipality.Thatisfactuallycorrect,butoverlooks
the relevant findings made by the ICTY in Martić:
“171. On 16 September 1991, Drniš, which is located near Knin and
at the time was 75% Croat, was attacked by forces and artillery of
TG-1 of the JNA9th Corps. During the attack, and the following days,
the centre of Drniš was almost completely destroyed. Widespread
looting was committed by members of the JNA and the MUP and by
local citizens. Approximately 10-15 days after the attack, an SJB of
the SAO Krajina MUP was set up in Drniš.
…
299. There is considerable evidence that similar displacement of the
Croat population as a result of harassment and intimidation occurred
elsewhere in the SAO Krajina, and subsequently RSK, territory and
continued until the end of 1994. [The footnote includes reference
to the fact that “around 50 Croats had filed requests with the civil
police in Drniš to leave”] The evidence shows that harassment and
intimidation of the Croat population was carried out on a large scale
by the police and by local Serbs in the territory.”
The findings of the ICTY corroborate the allegations made by the Applicant,
and are not addressed by the Respondent in its Counter-Memorial.
(19) M u n i c i p a lkin i n
6.80 In its summary (Counter-Memorial, paragraph 881) the Respondent
failstorefertoseveralinstancesoftortureandabuse,aswellasforcedlabour,set
outintheMemorial(paragraph5.214),denialoffoodanddestructionofsacral
objects (paragraph 5.215) and forced exile (paragraph 5.216).The Respondent
then wrongly asserts that it is the Applicant’s case that 5 Croats were killed
in Ervenik on 18 January 1992 (Counter-Memorial, paragraph 887(c)). It is
the Applicant’s case that 6 Croats were killed (Memorial, paragraph 5.215).
104
Knin District Court, Crime Scene Report on the Occasion of the Death of Pavao Parać, 5
105ruary 1993, Annex 102.
Witness Statement of M.P. and M.B., Annex 19.
Volume 6.indd 221 12/14/2010 2:34:07 PM 222
The ICTY relied upon the evidence of these killings in commenting on the
wider pattern of persecutions of Croats in the Knin region, as the Respondent
106
acknowledges. The Respondent asserts that Martić was not directly charged
in relation to these killings and was accordingly not convicted of them.That is
factually correct, but the significance lies in the ICTY’s reliance upon the fact
that the killings had occurred, and that they formed part of the overall pattern
of persecution of the Croat population. The fact that Martić was not charged
with these crimes, but that they were nonetheless found by the ICTY to have
been committed as part of the persecutory plan evidences the necessarily
limited nature of the ICTY Prosecutor’s Indictments (see further, Chapter 2,
paragraphs 2.25-33). Since the Memorial was prepared, the Applicant has
107
obtainedupdatedexhumationdataforKninMunicipality. Thisdataconfirms
that 20 bodies have been exhumed from various sites in the area.
6.81 Other than generalised criticisms, addressed in Chapter 2, the
Respondent makes very little specific comment on the Applicant’s case
in relation to Knin municipality: it does, for example, make any comment
or or dispute the Applicant’s allegations in relation to Vrpolje (Memorial,
paragraph 5.216). The assertion that the Applicant’s witness statements do
not support the Applicant’s case is not supported by any analysis, save for
the comment that the statements in relation to Kijevo are mostly hearsay and
do not have accurate descriptions of how killings occurred or by whom they
were committed (Counter-Memorial paragraphs 889-890). That is again an
exaggeration of the evidential position. For example, the witness B.V.
states that the most terrible crimes were committed by “Šešelj” and “Martić’s
Men”, as well as local Serbs, and gives an account of how Ivan and Jaka
Ercegovac were killed in their house and then thrown into the cistern in their
yard.108 B.V. also names several men responsible for physically and
psychologically abusing her.
6.82 The Respondent does not, apparently, directly challenge the evidence
of abuse given by the Applicant’s witnesses. The Respondent notes that the
ICTY dealt with the attack on Kijevo in Martić, but that it did not address the
killing there. The Respondent does not overtly suggest that this demonstrates
the ICTY found there to have been no such killings: such a suggestion would
be unsustainable in circumstances where those killings did not form part of the
Indictment. The ICTY’s findings in relation to Kijevo are set out in relevant
part below, and highlight the coordinated and systematic attacks that were
perpetrated on the Croat population:
106 Martić para. 327, footnote 1012, which states in relevant part: “On 18 January 1992,
the Čengić family were killed in their house in Ervenik Village, Knin municipality by three
members of the TO. The same three perpetrators also set fire to houses, sheds and barns in
the village.”
107See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
108pter 5, paras. 5.12-13, supra.
Memorial, Annexes, vol 2(III), annex 463.
Volume 6.indd 222 12/14/2010 2:34:07 PM 223
“166. On 26 August 1991, the Croat village of Kijevo, situated 15
kilometreseastofKnin,wasattackedbecausetheMUPofCroatiahad
established an SJB in the village. The decision to attack Kijevo was
taken by Milan Martić in coordination with the JNA and followed an
ultimatum issued by him to the Croatian SJB, in which he stated that
“you and your leadership have brought relations between the Serbian
and Croatian populations to such a state that further co-existence in
our Serbian territories of the SAO Krajina is impossible”. In relation
to the civilian population in Kijevo, the ultimatum provided that: “We
also want to advise the population of Kijevo to find safe shelters on
time so that there should be no casualties among them. We would
like to stress that we want co-existence and understanding between
the residents of the Serbian villages and the Croatian population in
Kijevo, and we guarantee civil and human rights to everyone.”
167. Units of the JNA 9th Corps in Knin, the Milicija Krajine and
the local TO participated in the attack. The evidence establishes that
there was coordination between the JNA and the MUP, and that the
JNA was in command of the participating forces. The evidence is
inconsistent as to the strength of the Croatian forces present in Kijevo.
Prior to the attack, between 23 and 25 August 1991, the commander
of the Croatian SJB evacuated almost the entire civilian population
of Kijevo.
168. The attack on Kijevo on 26August 1991 only lasted a few hours.
There is differing evidence as to the purpose of the attack. Witnesses
testified that the purpose was “to cleanse Kijevo of its Croatian
population”, to link up the two Serb villages of Polača and Civljane
on either side of Kijevo, to “liberate the area”, and to provide for
further advancement of the JNA. Borislav Ðukić, who at the time
was commander of Tactical Group 1 (“TG-1”) of the JNA 9th Corps
in Knin, testified that the attack had not been planned beforehand but
was provoked by a Croatian attack on 25August 1991 on buffer zones
previously established by TG-1. According to Borislav Ðukić, the
purpose of the attack was to lift the blockade along the Kijevo road,
set up by the Croatian SJB in Kijevo.
169. The Catholic Church in Kijevo was damaged during the attack,
and was later destroyed. The evidence also shows that private houses
were looted and torched.”
6.83 The Respondent makes no mention of the extensive findings of the
ICTY in Martić in relation Knin, which serve to underscore the systematic,
intentional and targetted persecution of Croats in the region:
Volume 6.indd 223 12/14/2010 2:34:07 PM 224
“296. Beginning in 1990, Croat businesses and properties were blown
upinKninandtherewasconstantpressureonthelocalCroatpopulation.
From aroundApril 1991, discriminatory policies were applied against
Croats, and Croat houses in the Knin area were searched for weapons.
Following the fighting in the Hrvatska Kostajnica, Knin and Glina
areas inAugust 1991, Croat civilians began to leave their homes to go
to Zagreb, Sisak and other places.
297. Due to the situation prevailing in the Knin area, the Croat
population began to fear for their safety and began requesting
authorisation from the RSK authorities to leave the RSK territory.
The insecurity of the Croats was also aggravated by speeches of
Milan Martić on the radio that he could not guarantee their safety,
particularly in the area of Knin. As a result, in the period between
1992 and 1993 the RSK police directed the Croat population towards
Croat settlements near Knin, such as Vrpolje and Kninsko Polje. In
Vrpolje,whichwasfivekilometresnorthofKnin,aculturalcentrewas
used as a gathering point for Croats, who had requested authorisation
to leave the RSK. The Knin police secured the area at the cultural
centre. The conditions there were poor and the Croats were not free to
leave but had to wait for an agreement to be reached between the RSK
Government, international organisations and the Croatian authorities
before they could be transferred. The police from Knin organised
and escorted bus convoys from Vrpolje to Šibenik and across Lika to
Karlobag.
298. A decision on the conditions upon which Croats and other
nationalities could return to the RSK was adopted by the RSK
government on 21 April 1992. However, in September 1992,
UNPROFOR reported that “it might be unrealistic to carry out any
return [of displaced persons] in the forthcoming future” due to the
likelihood of hostile acts being carried out against returning Croats.
299. There is considerable evidence that similar displacement of the
Croat population as a result of harassment and intimidation occurred
elsewhere in the SAO Krajina, and subsequently RSK, territory and
continued until the end of 1994. The evidence shows that harassment
and intimidation of the Croat population was carried out on a large
scale by the police and by local Serbs in the territory. [footnote
931 then refers to a number of exhibits and witnesses, evidencing
the following] … testifying that “[s]everal people said that Martić’s
policemen went door-to door telling people to leave Knin, that is the
SAO Krajina”… providing also that in the month of October 1992
five Croats were murdered and that houses vacated by Croats have
been burned down …reporting that “the Serb side” is building up a
Volume 6.indd 224 12/14/2010 2:34:07 PM 225
climate of threat and fear of aggression out of ongoing incidents, that
the “[Militia] is expanding ethnic cleansing systematically”, and that
the “Serb side” warned against returning Croats without RSK consent
because “the recent acts against Croatians here can be considered as
indication of what would happen on larger scale” … listing incidents
of murder, destruction and intimidation of Croats in the Benkovac,
Borovac, and Knin areas by the local police … letter reporting on
beating and robbing of elderly and helpless people in the Vrlika
area by members of the “Militia” … listing a number of incidents of
violence, including murders, theft and destruction, aimed at Croats in
Korenica, Zalužnica, Knin, Vrlika, Benkovac … providing that many
Croats wanted to leave the UNPAdue to not feeling safe …providing
that in Sector North by July 1992 about 22,000 Croats were listed as
Missing/Displaced.”
6.84 It is plain from this finding that the ICTY treated the actions as part
of a systematic policy; that is entirely consistent with intent. Similarly, the
ICTY made extensive findings in relation to detention facilities in Knin and
the extensive torture conducted there:
“279. There were two detention facilities in Knin, one at the barracks
of the JNA9th Corps and one at the old hospital. The evidence shows
that between 1991 and 1995, between 650 and 700 were detained in
Knin.
(a) Detention at the JNA9th Corps barracks
… 281. On 19 November 1991, Luka Brkić,Ante “Neno” Gurlica and
Marin Gurlica were brought by truck to the JNA barracks in Knin by
men wearing JNA uniforms. While they were taken to the barracks,
they were beaten and verbally abused.
282. Luka Brkić was detained at various locations at the JNAbarracks
with between 8 and 17 people, ranging from 30 to 80 years old.
The detainees were severely beaten for at least twenty days. 3 The
detainees did not receive medical treatment, there was insufficient
food and water, and there were no sanitary facilities.
283. Luka Brkić was also detained at the sports hall of the barracks
with between 75 and 200 people, mostly Croats. The detainees were
occasionally severely beaten. There were limited sanitary facilities
and a 200-litre barrel next to the door that was used to urinate in.
RatkoMladić,thethen-Commanderofthe9thCorps,twicevisitedthe
detainees at the sports hall. Ratko Mladić taunted them, saying “if you
don’t do what you are told […] your fate will be the same as the fate
of the inhabitants from Škabrnja.” The detainees were “displayed as
Volume 6.indd 225 12/14/2010 2:34:07 PM 226
Ustashas” and made to “take an oath for the King and the fatherland,
the Serbian fatherland”.
284. While being detained in the JNA barracks, in addition to JNA
soldiers, Luka Brkić saw soldiers wearing SAO Krajina insignia and
the White Eagles (“Beli Orlovi”) insignia.
(b) Detention facility at the old hospital in Knin.
285.Inearly1991,adetentionfacilitywasestablishedonthepremises
of the old hospital in the centre of Knin. This facility was sometimes
referred to as “Martić’s prison” and the “District Prison”. … From
the summer of 1991, the Ministry of Justice of the SAO Krajina took
over control of the old hospital from the TO and hired professional
guards. On 28 September 1992, the Assembly of the RSK formally
established the District Prison in Knin.
286. On 2 October 1991, Stanko Erstić was arrested in Medviđa near
BruškabytheMilicijaKrajineandbroughttotheoldhospitalin Knin.
He was detained with another 120 prisoners, all non-Serbs from Croat
or mixed villages in the Krajina region. Except for 20 members of
the ZNG who had been captured during the fighting in Kijevo, all
detainees were Croat civilians. … In his view, “all the guards were
paramilitary and part of ‘Martić’s militia’”. He testified to having seen
Ratko Mladić at the old hospital. …
287.LukaBrkićwasbroughttotheoldhospitalfromtheJNAbarracks
in Knin. In his opinion, “it was the police or the army who operated
there.” …
288. The detainees were threatened and beaten every day for long
periods, often by several guards at a time using rifle butts, truncheons,
and wooden staves. The detainees were interrogated and also beaten
byshiftcommanders.Thedetaineesalsohadcockedrevolverspressed
against their temples, were beaten on their kidneys until they were
swollen, and were denied the use of toilet facilities. They were forced
to drink urine and to clean toilets with their bare hands. They had
their heads forced into toilets.They also had their personal belongings
stolen. There is evidence of sexual abuse of some detainees and that
detainees were subjected to sleep deprivation. There was insufficient
food. The detainees were verbally abused by the guards, who said
things like “the Croatian nation has to be destroyed”, “all Croats
have to be killed; Split and Zadar are burning, Šibenik will burn as
well”. On one occasion, Vojislav Šešelj visited the old hospital and
insulted the detainees, asking them “how many Serbian children they
slaughtered, how many mothers”.
Volume 6.indd 226 12/14/2010 2:34:07 PM 227
289. “Martić’s police”, wearing blue uniforms, carried out beatings
together with people in camouflage uniforms. Ivan Atelj, who was
also detained and beaten at the old hospital, stated that while Stevo
Plejo and Jovica Novaković were in charge of the old hospital prison,
they “allowed beatings of prisoners by civilians, Serbian prisoners,
‘Martić’s Special Forces members’and all others who wanted to beat
them.”
290. From his mistreatment in detention, Luka Brkic sustained
permanent injuries to his stomach and contracted Hepatitis B. He is
still receiving medical treatment. Stanko Erstić sustained two broken
ribs and one cracked rib, while Ivan Atelj sustained three broken ribs
and injuries to his spine.
…
294. In October 1991, Milan Martić was seen in the prison wearing a
109
camouflage uniform with the insignia of the Milicija Krajine.”
6.85 The ICTY found that the detentions in Knin amounted to the crime
against humanity of persecution, as well as the crimes of imprisonment,
110
torture, cruel treatment and other inhumane acts.
(20) M u n i c i p a loiBr o v a c
6.86 The Respondent makes only very limited comments in relation to the
Applicant’s case and evidence on Obrovac municipality, most of which are
generalised and addressed by the Applicant in Chapter 2 (Counter-Memorial,
paragraphs 893-898). The Respondent’s summary of the Applicant’s case
refers only the killings described in the Memorial, and omits to mention
the restriction of movement (paragraph 5.219) and fleeing of 1703 Croats
(paragraph 5.221). Since the Memorial was prepared, the Applicant has
obtained updated exhumation data for Obrovac Municipality. 111This data
confirms that 37 bodies have been exhumed from various sites in the area.
6.87 The only specific observation made is that “the exhumation records
offered by theApplicant confirm the killing of six elderly Croats in the village
ofJasenice,buttheycannotprovideanyinformationunderwhatcircumstances
and by whom they were killed.” (paragraph 897) The Respondent is correct
that the exhumation records cannot themselves provide evidence of the
circumstances or perpetrators of the killings, but such evidence is available
in the Applicant’s witness statements. For example, the Applicant sets out at
109The allegations in relation to the Old Hospital in Knin also formed part of the Milošević
Indictment para. 64(i).
110Martić, paras. 407-416.
111See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
Volume 6.indd 227 12/14/2010 2:34:07 PM 228
paragraph 5.217 of the Memorial the evidence of L.M. in relation to
the shooting of L.M. 112
6.88 The ICTY made two relevant findings in relation to Obrovac
municipality in Martić:
• It relied on evidence that “over 100 Croats had left their homes in the
Medviđa area and were living in caves, fields and forests” in concluding
that “There is considerable evidence that similar displacement of the Croat
population as a result of harassment and intimidation occurred elsewhere
in the SAO Krajina, and subsequently RSK, territory and continued until
the end of 1994.” 113
• It relied upon the Helsinki Watch Report sent to Slobodan Milošević on
21 January 1992, noting that it recorded that on “17 December 1991, five
civilians were reportedly killed in the village of Jasenice (Obrovac)”. 114
6.89 In addition, the Applicant has also obtained further evidence
corroborating its case in relation to Obrovac municipality:
• S.M. provides evidence of the murder of his brother, M.
M., in Zaton Obrovački on 2 July 1992.The witness was present at the
time of the shooting, which was a targeted execution of M.M..
The witness subsequently heard that the perpetrator was M.G. ‘G’
115
and a man called P. ‘Ć’.
• L.M. has provided a second witness statement, dealing with the
killings in Zaton Obrovački on 26 January 1993, to which he was an eye-
witness. The victims were rounded up by two soldiers on the pretence of
being evicted, before being shot whilst unarmed. One of the soldiers was
called M.G. ‘G’and the other was unknown to the witness. 116
• M.Ž.gives evidence of the killing of M., S. and M.
Ž. in Kruševo on 31 December 1991. Upon reporting the crime, the
witnesswas toldthatthepolicecouldnothelpherandthatsheshouldleave
for Zadar otherwise she would end up like her neighbours.The witness had
heard S.P. ‘Ž’ and B.P. ‘B’ talking about
117
killing the Ž.’s 10 days prior to the shootings.
112Memorial, Annexes, vol 2(III), annex 469.
113Martić, para. 299, footnote 930.
114
115Martić, para. 324, footnote 1002. The Helsinki Watch Report appears at Annex 99.
Witness Statements of S.M., Annex 17.
116Witness Statement of L.M., Annex 15.
117Witness Statements of M.Ž., Annex 29.
Volume 6.indd 228 12/14/2010 2:34:07 PM 229
(21) M u n i c i p a B e n k o v a c
6.90 The Respondent’s summary (Counter-Memorial, paragraph 899)
of the Applicant’s case omits to mention numerous incidents relied upon in
the Memorial, including: the fleeing of 389 Croats from Korlat, all Croats
from Smilčić and 659 Croats from Benkovac (Memorial, paragraphs 5.223
and 5.225); the forcible expulsion of 825 Croats from the village of Lišane
Ostrovičke, 139 Croats from Rodaljice, 360 Croats from Lisičić (while the
“RSK” authorities settled Serbs in their houses), and 353 Croats from Perušić
Benkovački(paragraph5.225);compellingCroatstoundertakeforcedlabourin
Šopot (paragraph 5.225); and destroying the Catholic church in Lisičić as well
as Croatian property in Benkovac (paragraph 5.225). Since the Memorial was
prepared, the Applicant has obtained updated exhumation data for Benkovac
Municipality. 11This data confirms that 48 bodies have been exhumed from
various sites in the area.
6.91 Thereafter, the Respondent disputes very little of the Applicant’s
case in relation to Benkovac municipality in specific terms, but asserts in
general terms that theApplicant’s evidence does not support its case (Counter-
Memorial,paragraph902).TheRespondentiscompelledtoconcede,however,
that the Applicant’s evidence must be correct in relation to the killings of 9
Croats on 21 December 1991 in Bruška, because the ICTY convicted Milan
Martić of murder and persecution in relation to those deaths. The relevant part
of the ICTY’s decision is set out below:
“400. The Trial Chamber finds that Sveto Drača, Dragan Marinović,
Draginja Marinović, Dušan Marinović, Ika Marinović, Krsto
Marinović, Manda Marinović, Petar Marinović, Roko Marinović and
Stana Marinović were intentionally killed in Bruška on 21 December
1991 by the Milicija Krajine. The Trial Chamber considers that
the JNA reports which indicate that these killings were carried out
in revenge do not disturb this finding. With the exception of Sveto
Drača, all victims were civilians and were not taking an active part
in the hostilities at the time of their deaths. The Trial Chamber finds
that the elements of murder as a crime against humanity (Count 3)
and as a violation of the laws or customs of war (Count 4) have been
established for these victims.
…
403. The Trial Chamber recalls that prior to the above-mentioned
killings in Bruška, armed men identifying themselves as “Martić’s
men” or “Martić’s Militia” would come to Bruška daily to intimidate
the inhabitants, calling them “Ustasas”, and telling them that Bruska
118See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
Volume 6.indd 229 12/14/2010 2:34:07 PM 230
wouldbeapartofaGreaterSerbiaandthattheyshouldleave.TheTrial
Chamber further recalls that the victims, with the exception of Sveto
Drača, were Croats. The Trial Chamber therefore finds it established
beyond reasonable doubt that these killings were carried out with
intent to discriminate on the basis of Croat ethnicity. Trial Chamber
therefore concludes that the elements of the crime of persecution
119
(Count 1) have been met for all victims except Sveto Drača.”
6.92 The Respondent makes only very limited criticisms of theApplicant’s
evidence, some of which concern hearsay and are addressed in Chapter 2.
In relation to the killings of 6 Croats in Smilčić, the Respondent asserts that
there is insufficient evidence in relation to the circumstances of their deaths
(Counter-Memorial, paragraph 902). Whilst B.A. is not able to
provide an eyewitness account in relation to the murders of M. and
L.A., he is able to give evidence as to which particular Serbs had
been harassing and intimidating the victims prior to their deaths. 120B.
A. had in fact also given an earlier statement, detailing seeing the bodies
of his cousin and his wife after they were murdered on 21 January 1992. He
saw 5-6 empty military rifle casings on the floor in front of their bodies. 121
The Applicant has also obtained a statement from D.P., who was held
in detention by “Martić’s Militia” in Benkovac, where he overheard one of the
militia, S.C., bragging that he had killed I.K. on 22 July
1991. 122
(22) M u n i c i p a l Zoa d a r
6.93 The Respondent asserts that the Applicant’s witness statements
do not support its case (Counter-Memorial, paragraph 908). It is not clear,
however, what parts of the Applicant’s case the Respondent in fact disputes,
in light of the findings of the ICTY in Martić, summarised by the Respondent
at paragraph 910. It is notable that the Respondent fails even to summarise
the allegations made by the Applicant of torture and physical mutilation
(Memorial, paragraph 5.229) and the fleeing of 433 Croats from the village
of Zemunik Donji (paragraph 5.231). Since the Memorial was prepared, the
123
Applicant has obtained updated exhumation data for Zadar Municipality.
This data confirms that 41 bodies have been exhumed from various sites in
the area.
6.94 The Trial Chamber in Martić found that Zadar municipality was
subjected to extensive attacks resulting in the killings of 75 Croats, considered
bytheICTYtoamounttothecrimesagainsthumanityofmurderandpersecution
119
120 The allegations were also included in the Milošević Indictment paras. 36(a) and 48.
Memorial, Annexes, vol 2(III), annex 495.
121 Witness Statement of B.A., Annex 1.
122 Witness Statements of D.P., Annex 21.
123 See List of Exhumed Bodies for Sites Referred to in the Memorial, Annex 43. See further,
Chapter 5, paras. 5.12-13, supra.
Volume 6.indd 230 12/14/2010 2:34:08 PM 231
and the war crimes of murder and wilful destruction. The findings also wholly
undermine the implicit suggestion by the Respondent, at paragraph 909, that
the killings were legitimate military targeting of civilians who had taken up
arms:
“386. The Trial Chamber recalls that Josip Miljanić, Krsto Šegarić,
Lucia Šegarić and Stana Vicković were killed at Slavko Šegarić’s
house in Ambar on 18 November 1991. The Trial Chamber finds
that Krsto Šegarić was intentionally killed by Ðuro Kosović, a local
paramilitary soldier wearing a camouflage uniform with an SAO
Krajina patch and who participated together with other SAO Krajina
forces in the attack on Škabrnja. The Trial Chamber further finds that
the evidence establishes beyond reasonable doubt that Josip Miljanić,
Stana Vicković, and Lucia Šegarić were intentionally killed by other
members of such paramilitary soldiers. The Trial Chamber finds that
all four victims were civilians and that none of them were taking
an active part in the hostilities at the time of their deaths. The Trial
Chamber concludes that all of the elements of murder as a crime
against humanity (Count 3) and as a violation of the laws or customs
of war (Count 4) have been established for the above-mentioned
killings.
387. The Trial Chamber finds that Jozo Brkić, Jozo Miljanić, Slavka
Miljanić, Petar Pavičić, Mile Pavičić, Ilija Ražov, Kata “Soka” Rogić,
Ivica Šegarić, Rade Šegarić andVice Šegarić were intentionally killed
outside Petar Pavičić’s house in Škabrnja on 18 November 1991. The
perpetrators of these killings were members of local paramilitary
units,whoparticipated,togetherwithotherSAOKrajinaforces,inthe
attack on Škabrnja and who wore camouflage uniforms and different
sorts of headgear. … The Trial Chamber finds that the elements of
murder as a crime against humanity (Count 3) and as a violation of
the laws or customs of war (Count 4) have been established for the
killings of Jozo Brkić, Jozo Miljanić, Slavka Miljanić, Petar Pavičić,
Ilija Ražov, Kata “Soka” Rogić, Rade Šegarić, andVice Šegarić.With
regard to Mile Pavičić and Ivica Šegarić, the Trial Chamber finds that
the elements of murder, as a violation of the laws or customs of war
(Count 4), have been established.
388. The Trial Chamber finds that Novica Atelj, Stoja Brkić, Danka
Brzoja, Ika Čirjak, Maša Čirjak, Marija Šestan and Jakov Šestan were
intentionally killed at Pere Sopić’s house in Nadin on 19 November
1991 by soldiers wearing JNAuniforms.TheTrial Chamber finds that
these victims were civilians and were not taking an active part in the
hostilities at the time of their deaths. The Trial Chamber finds that
the elements of murder as a crime against humanity (Count 3) and
Volume 6.indd 231 12/14/2010 2:34:08 PM 232
as a violation of the laws or customs of war (Count 4) have been
established for these killings.
389. The Trial Chamber finds that the following civilians were killed
in Škabrnja, Nadin or Benkovac on 18 and 19 November 1991: Ivan
Babić, Luka Bilaver, Marija Brkic (born 1943), Marko Brkić, Željko
Ćurković, Marija Dražina, Ana Jurić, Grgo Jurić, Petar Jurić, Niko
Pavičići, Josip Perica, Ljubo Perica, Ivan Ražov, Jela Ražov, Branko
Rogić, Nikola Rogić, Petar Rogić, Kljajo Šegarić, Lucka/Luca
Šegarić, Grgica “Maja” Šegarić, Mara Žilić, Milka Žilić, Pavića Žilić,
Roko Žilić, Tadija Žilić and Marko Župan. The Trial Chamber further
finds that these victims were taking no active part in the hostilities
at the time of their deaths. The Trial Chamber finds that it has been
proven beyond reasonable doubt that these victims, with the exception
of Petar Rogić, were intentionally killed by members of the units,
including JNAandTO units, which took part in the attack on Škabrnja
and Nadin on 18 and 19 November 1991. …The Trial Chamber finds
that the elements of murder as a crime against humanity (Count 3)
and as a violation of the laws or customs of war (Count 4) have been
established for these killings, except for the killing of Petar Rogić.
390. The Trial Chamber finds that the following members of the
Croatian defence forces present in Škabrnja and Nadin were killed on
18 and 19 November 1991: Vladimir Horvat, Nediljko Jurić, Slavko
Miljanić, Gašpar Perica, Ante Razov, Marko Rogić, Bude Šegarić,
MiljenkoŠegarić,ŠimeŠegarić,NediljkoŠkaraandStankoVicković.
…TheTrial Chamber finds that it has been proven beyond reasonable
doubt that these victims, with the exception of Šime Šegarić and
Miljenko Šegarić, were intentionally killed by members of the units,
including JNAandTO units, which took part in the attack on Škabrnja
and Nadin on 18 and 19 November 1991. …
391.TheTrialChamberfindsthattheelementsofmurderasaviolation
of the laws or customs of war (Count 4) have been established for
Ante Ražov, Vladimir Horvat, Gašpar Perica, Marko Rogić and Šime
Šegarić, but not for Miljenko Šegarić.
392. The Trial Chamber finds that Marija Bilaver, Josipa Brkić, Mate
Brkić and Kata Perica were killed in Škabrnja on 11 March 1992.
Moreover, the Trial Chamber finds that the following persons were
killed between 18 November 1991 and 11 March 1992: Grgo Bilaver,
Peka Bilaver, Ana Brkić, Mijat Brkić, Jure Erlić, Dumica Gospić,
Ljubomir Ivković, Neđelko Ivković, Tereza Ivković, Simica Jurjević,
Mirko Kardum, Simo Ražov, Grgica Ražov, Marko Ražov, and Pera
Škara. The Trial Chamber finds all of these victims, except Neđelko
Volume 6.indd 232 12/14/2010 2:34:08 PM 233
Ivković, were civilians and were taking no active part in the hostilities
at the time of their deaths. The Trial Chamber finds that it has been
proven beyond reasonable doubt that these victims were intentionally
killed by members of the units that took part in the attack on Škabrnja
and Nadin on 18 and 19 November 1991, or which were subsequently
present in the area of Škabrnja following the attack and until March
1992. These units included JNAunits, units from a TO brigade under
JNA command, and paramilitary units. The Trial Chamber finds that
the elements of murder as a crime against humanity (Count 3) and
as a violation of the laws or customs of war (Count 4) have been
established, except with regard to Neđelko Ivković, who the evidence
establishes was a “Croat defender”. …
…
395. There is evidence that during the attack, the church of the
Assumption of the Virgin in the centre of Škabrnja was shot at by
a JNA tank. Furthermore, several soldiers entered the church and
fired their weapons. The Trial Chamber finds that the church of the
AssumptionoftheVirginwasnotusedformilitarypurposesatthetime
of this damage and furthermore that the circumstances surrounding
this damage establishes the intent of the perpetrators to cause such
damage. The Trial Chamber notes the evidence that on 18 November
1991 a JNAtank opened fire in the direction of the school in Škabrnja
and that by 19 November 1991 the school had been destroyed.
However, the Trial Chamber considers the evidence to be insufficient
to show that the school was not being used for military purposes at the
time it was damaged.TheTrial Chamber finds that the elements of the
crime of destruction or wilful damage done to institutions dedicated
to education or religion (Count 13) have been met in relation to the
church of theAssumption of the Virgin.
…
398. The Trial Chamber recalls that the majority of the victims in
Škabrnja and Nadin, referred to above, were of Croat ethnicity. The
evidence shows that soldiers present in Škabrnja threatened villagers
hiding in the basements, saying “Come out you Ustase, we are going
to slaughter you all” and that even women and children were being
called “Ustashas” and were insulted by soldiers. The Trial Chamber
further recalls that Škabrnja and Nadin were almost exclusively Croat
villages. Even making allowance for the possibility that there may
have been a few Serbs among the victims referred to above, this does
not affect the Trial Chamber’s overall assessment that these killings
were carried out with intent to discriminate on the basis of Croat
Volume 6.indd 233 12/14/2010 2:34:08 PM 234
ethnicity. The Trial Chamber therefore concludes that all the elements
of the crime of persecution (Count 1) have been met.
399. The Trial Chamber recalls that the church of the Assumption of
theVirgin was destroyed and that it was not used for military purposes
at the time of the destruction. The Trial Chamber recalls the manner
in which the church was destroyed and concludes that this destruction
was carried out with the same discriminatory intent as referred to
above. The Trial Chamber therefore concludes that the elements of
the crime of persecution (Count 1) have been met.” 124
(23) M u n i c i p a lsii n j
6.95 The Applicant’s case in relation to Sinj municipality concerns the
repeated attempts to destroy the Peruča Dam in order to exterminate a large
part of the local Croat population (Memorial, paragraphs 5.232-234). The
Respondent’s criticism is essentially that the materials relied upon by the
Applicant are not independent. That general criticism is dealt with in Chapter
2, paragraphs 2.55-57. Morever, the Applicant has subsequently obtained a
number of independent documents, from UNPROFOR, which corroborate the
evidence already provided. In particular:
• An UNPROFOR memorandum dated 14 September 1992, sent from
UNPROFOR’s Head of Mission, Satish Nambiar, in Zagreb to UN
Head of Peacekeeping, Marrack Goulding, in New York, marked “Most
Immediate”, concerning Peruča Dam. 125It begins: “As you know, two
experts, O’Flaherty and Long, came last week to inspect Peruča. For
our meetings with Secretary Vance and Lord Owen at the weekend, we
obtained their interim report. It is somewhat alarming. … We asked Gen
Panić for full JA cooperation on the matter of the dam’s preparation for
demolition, as suspected by the experts on their inspection … it was agreed
that UNPROFOR would assume full responsibility for this installation...”
The memorandum went on to note that “The experts found that there was
circumstantial evidence of explosive charges having been placed in this
[bottom] channel.” It proposed a series of steps be taken by UNPROFOR
to exercise control over the dam and to ensure that the top and bottom
channels were opened, for the “avoidance of a major environmental
disaster.”
• Asubsequent UNPROFOR memorandum dated 19 September 1992, again
from Nambiar to Goulding, and copied to Vance, concering a meeting with
the (Serbian) Knin authorities on Thursday evening (17 September). 126
124 The allegations were also included in the Milošević Indictment paras. 36(a), 45-47.
125 UNPROFOR, Coded Cable from General Statish Nambiar to Marrack Goulding, 14
September 1992, Annex 93.
126 UNPROFOR, Coded Cable from General Statish Nambiar to Marrack Goulding, 19
Volume 6.indd 234 12/14/2010 2:34:08 PM 235
At the meeting, the Serb contingent admitted to mining the Dam. The
memorandum records “The dam was, indeed, mined (it transpires that
Španović’s former military command when a JNA colonel included the
dam) but they were ready to demine it.” UNPROFOR reiterated the
requests that had been made to Serbian Prime Minister Panić and General
Panić“lastweekend,fortheirimmediateassistanceinhavingtheexplosive
charges removed.”
• Aletter from Cedric Thornberry, Deputy Head of UNPROFOR, to Serbian
Prime Minister Panić, dated 21 October 1992, marked “Extremely Urgent”
and titled, “Demining of the Peruča Dam.” 127The letter stated “At your and
General Panić’s meeting on 12 September in Belgrade with Mr Secretary
Vance, General Nambiar and myself, we discussed the very dangerous
situation of the Peruča Dam. On 23 September, in response to my letter
of 14 September, Colonel Čađo, on behalf of the General Staff of the
YugoslavArmy, offered to provide specialist assistance to UNPROFOR to
demine the dam with UNPROFOR protection, a request to which I agreed
on 26 September. Since this time, several written messages have been
sent to your military authorities requesting, with increasing urgency, such
assistance, and the matter has also been taken up with President Čosić.
We are becoming increasingly concerned by the situation at the dam. The
water level, already above flood level, is rising daily. If the dam is not
demined in the very near future, thus enabling a further channel to be
opened, we face the prospect of a major economic, ecological and possibly
humanitarian disaster. … I have to reiterate, dear Prime Minister, that the
situation cannot be allowed to continue for more than another 72 hours
before UNPROFOR institutes emergency action.”
6.96 It is apparent from the UNPROFOR documents, and from the
admission made by the Serb contingent at the meeting on 17 September 1991,
that the Applicant’s Memorial correctly asserts that the Serbs repeatedly
attempted to destroy the Dam, and to deflect UNPROFOR’s intervention to
prevent the same. The documents referred to in the Memorial and provided in
the Annexes to this Reply confirm the gravity of the consequences explained
128
in the Memorial, had the Dam been breached in the manner intended.
September 1992, Annex 94.
127 UNPROFOR, Letter from Cedric Thornberry to Prime Minister Milan Panić, 21 October
1992, Annex 95.
128
Marin Vilović et al., “Facts and Estimates of the Consequences Resulting from Mining
of the Peruča Dam by Serbian Forces on 28 January 1993”, Croatian Medical Journal, vol
34(4), 1993, pp.280-4, Annex 103; Josip Macan, “A chronological narrative on the events
at the dam until the occupation until the mining”, Croatian National Electricity, Annex 96;
“Consequences if the Peruča Dam was destroyed”, Zvonimir Sever, Elektroprojekt, Annex
110.
Volume 6.indd 235 12/14/2010 2:34:08 PM 236
(24) d uBr o v n i k
6.97 The Respondent does not summarise much of the Applicant’s case
in relation to Dubrovnik (see especially the allegations at paragraphs 5.236-
237, 5.239 and 5.241 of the Memorial, including the removal of civilians to
camps in Bosnia and Herzegovina and Montenegro) and does not specifically
dispute anything other than the number of victims killed in the attacks on
the city (Counter-Memorial, paragraphs 918-925). The dispute as to the
number of victims is predicated on the judgments of the ICTY in Prosecutor
v. Jokić129and Prosecutor v. Strugar. 130 However, the charges in those cases
only concerned the attacks on Dubrovnik in December 1991 (commencing
with the shelling on 6 December): they did not give detailed consideration to
the crimes committed in the period between 1 October 1991 and 5 December
1991, other than by way of background context. It is not correct, therefore, for
the Respondent to assert that the judgments are a complete consideration of
all crimes committed in Dubrovnik in the relevant period. It is theApplicant’s
case that the deaths in Dubrovnik occurred over a much longer period, and
not solely as a result of the December attacks. It should be noted that the
Applicant asserted in the Memorial that 161 civilians were killed, according to
the records of the Dubrovnik-Neretva County Police Station: it has since been
established that the 161 deaths included a number of military and emergency
services personnel. The total number of civilian deaths was 123. 131
6.98 The ICTY case law does, however, set out a helpful background,
entirely supportive of the Applicant’s case. Miodrag Jokić, a commander in
the Yugoslav Navy, pleaded guilty to war crimes in relation to the shelling
of Dubrovnik on 6 December 1991. The summary of facts in the Sentencing
Judgment provides a useful overview:
“21. … from 8 October 1991 through 31 December 1991, Miodrag
Jokić, acting individually or in concert with others, conducted a
military campaign, launched on 1 October 1991 and directed at the
territory of the then Municipality of Dubrovnik (“Dubrovnik”).
22. In the same period, during military operations directed at Srd Hill
and the wider Dubrovnik Region, Yugoslav forces (JNA) under the
command of Miodrag Jokić fired hundreds of shells which struck the
Old Town of Dubrovnik (the “Old Town”).
129 Prosecutor v. Miodrag Jokić, IT-01-42, Trial Chamber Sentencing Judgment, 18 March
2004 (‘okić’). Vladimir Kovačević was also indicted with Jokić and Strugar, but his case was
subsequently transferred to Serbia for prosecution, pursuant to Rule 11bis of the ICTY Rules.
At the present time, the Applicant understands that Kovačević has not stood trial because of
psychiatric problems.
130 Prosecutor v. Pavle Strugar, IT-01-42, Trial Chamber Judgment, 31 January 2005
131trugar’).
Letter from Head of Administration of Dubrovnik-Neretva Police, dated 1 April 2010,
Annex 107; and Letter from Head of the Crime Police Directorate, dated 1 December 2010,
Annex 109.
Volume 6.indd 236 12/14/2010 2:34:08 PM 237
23. Miodrag Jokić was aware of the Old Town’s status, in its entirety,
as a United Nations Educational, Scientific and Cultural Organization
(“UNESCO”) World Cultural Heritage site pursuant to the 1972
Convention for the Protection of the World Cultural and Natural
Heritage (“UNESCO World Heritage Convention”). He was further
aware that a number of buildings in the Old Town and the towers of
the OldTown’sWalls were marked with the symbols mandated by the
1954 Hague Convention on the Protection of Cultural Property in the
Event of Armed Conflict (“1954 Hague Convention”). He was also
aware of the presence of a substantial number of civilians in the Old
Town on 6 December 1991.
24. The shelling of 6 December 1991 was preceded by military
operations around the Old Town of Dubrovnik which had led to
approximately three months of occupation of the areas surrounding
the city. There was no investigation initiated by the JNA following
the shelling of the Old Town in October and November 1991, nor
were any disciplinary measures taken, to punish the violation of the
standing JNAorder to protect the Old Town of Dubrovnik.
25.AtthebeginningofDecember,theJNAandtheCroatianforceswere
about to reach a comprehensive ceasefire agreement which included
the restoration of basic supplies to the population of Dubrovnik. The
negotiators were Miodrag Jokić, on the one side, and three high-level
Croatian cabinet ministers, on the other, including Davorin Rudolf,
who was the Croatian Minister for Maritime Affairs and, for a while,
acting Croatia’s Minister of Foreign Affairs. On 5 December 1991,
after a high-level meeting between the two sides in Cavtat, the only
remaining detail of the ceasefire agreement was the signing of the part
related to the inspection of vessels blockading Dubrovnik’s port.
26. On 6 December 1991, JNA forces under the command of,
among others, Miodrag Jokić unlawfully shelled the Old Town.
Notwithstanding the fact that the forces shelling the Old Town
were under the de jure control of Miodrag Jokić, the Prosecution’s
expressed position is that the unlawful attack was “not ordered by
Admiral Jokić”. Miodrag Jokić told the Trial Chamber: “I was aware
of my command responsibility for the acts of my subordinates in
combat and for the failings and mistakes in the exercise of command
over troops.”
27. As a result of the shelling, two civilians were killed (Tonči
Skočko, aged 18, and Pavo Urban, aged 23) and three civilians were
wounded (Nikola Jović, Mato Valjalo, and Ivo Vlašica) within the Old
Town. Six buildings in the Old Town were destroyed in their entirety
Volume 6.indd 237 12/14/2010 2:34:08 PM 238
and many more buildings suffered damage. Institutions dedicated to
religion, charity, education, and the arts and sciences, and historic
monuments and works of art and science were damaged or destroyed.
The shelling continued “until late in the day of 6 December 1991.”
The witness statements provided by the parties show that the Old
Town was in chaos, that there was debris from the damaged buildings
and that people were crying and in shock.
28. At 2 pm on 6 December 1991, Miodrag Jokić sent a radiogram
to the Crisis Committee of Dubrovnik, and specifically to Minister
DavorinRudolf,expressinghisregret“forthedifficultandunfortunate
situation” and stating that he had not ordered the shelling. However,
notwithstanding the fact that the shelling of the city was so intense,
there was, according to the submissions heard by the Trial Chamber,
“nointroductionofanyimmediateordertoprotect,topreservetheOld
Town.” The parties agree that “Miodrag Jokić had knowledge of the
unlawful shelling from the early hours of the morning of 6 December
1991 and failed to take the necessary and reasonable measures to
prevent, mitigate, stop or punish those under his command directly
responsible for the shelling.” Miodrag Jokić stated, in his message
to the Croat side in the afternoon of 6 December 1991, that he would
undertake an “energetic investigation on our responsibility and the
guilty ones for this event,” at the same time expecting “to find the
responsibilities on your side.” Nonetheless, no-one on the JNA side
was punished or disciplined for the shelling; insufficient efforts, if
any, were put into investigations.
29. On 7 December 1991, Miodrag Jokić met again with Minister
DavorinRudolfinCavtat.Afterfurthernegotiations,acomprehensive
ceasefire agreement was concluded. During this meeting, Miodrag
Jokić apologized for the events of the day before.”
6.99 Pavle Strugar, who had been indicted with Miodrag Jokić, was
subsequently convicted for his part in the crimes committed in Dubrovnik
in December 1991. The ICTY made reference in its judgment to the shelling
of Dubrovnik in both October and November 1991, following the JNA’s
blockading of the city pursuant to the following order:
“31. On 30 September 1991, pursuant to an order of the General Staff
of the SFRY, the Commander of the 2 OG at the time, Lieutenant-
General Jevrem Cokić, issued to subordinate units a directive to
blockade Dubrovnik. The directive provided for the following
deployment of forces:
‘[…] Using most of the forces, to go on the attack from the current
Volume 6.indd 238 12/14/2010 2:34:08 PM 239
sectors, deploying main forces on these axes: Ljubinje – Zavala –
Slano; Ljubovo village – Ivanica - Čibača and Grab – Dubravka –
Molunat; while auxiliary forces will secure features and the Mostar
airportandintheNeretvavalleywiththefollowingobjective:withair,
artillery and naval support, operating simultaneously and forcefully to
defeat forces along the attack axes and reaching the coastline, to cut
off the Adriatic highway at several points along the Slano – Prevlaka
section, to seal off Dubrovnik, Ćilipi Airport and Prevlaka from the
land and sea, and to prevent enemy forces from manoeuvring; then,
providing support from the direction of Ploče, to engage in destroying
and disarming the surrounded enemy forces, and to be in a state of
readiness for further offensive operations in western Herzegovina.’”
6.100 The ICTY judgment in Strugar sets out the attacks on Dubrovnik in
October and November 1991 over a number of pages. It concluded, by way of
example, in relation to the 11/12 November shelling as follows:
“63. On 11 November 1991 the attack on Dubrovnik intensified. In
the context of a much broader attack on Dubrovnik, a lot of shells
were falling very close to the Old Town, as well as within the Old
Town itself. Paul Davies and his team were filming the shelling on
11 November 1991. On his evidence, the shelling was so heavy that
day that he and his team were able to recognise a pattern of noise,
followed by the trajectory of the shell and the point of impact. An
ECMM monitor stated in his report on 11 November that on that
evening he could see the old port on fire, as well as part of the city
beyond the walls.
64. The shelling continued on 12 November. The ECMM monitors
reported sporadic shelling in the morning, which escalated in the
afternoon. They also recorded a “continuation of the burning fire in
the city”, although it is not clear if this refers to the Old Town. It
was the evidence of Paul Davies that the attack that day, unlike the
previous days of shelling, was concentrated on the Old Town. He
characterised the attack on the Old Town that day as “deliberate” and
“sustained”. He and his team filmed between 15 and 17 impacts of
wire-guided missiles, although he testified that the total number of
such missiles used on 12 November 1991 against the Old Town was
probably somewhere between 30 and 100. The wire-guided missiles
hit the walls of the Old Town, the boats moored in the sheltered area
in the port of the Old Town, as well as hitting locations within the Old
Town. The evidence establishes that the shelling of the Old Town on
12 November was intense.”
Volume 6.indd 239 12/14/2010 2:34:08 PM 240
6.101 It was the not the role of the ICTYin the Jokić and Strugar cases to set
out the number of victims killed by the attacks on Dubrovnik in October and
November 1991. It is apparent from its Judgment in Strugar, however, that
civilians were killed, in addition to those whose deaths formed the subject of
the Indictment:
“49. On 5 October 1991, the city of Dubrovnik was shelled again.
The shelling commenced around 0300 or 0400 hrs.According to Lars
Brolund the shelling seemed to come from the sea. However, at least
one person, Milan Milišić, was killed in the course of the attacks by a
120mm mortar shell, a land warfare weapon.”
6.102 The principal focus on the ICTY’s Judgment was on the events of
6 December 1991. The Trial Chamber found that Dubrovnik was subject to
extensive and prolonged shelling on that date by the JNA, notwithstanding the
repeated protests of ECMM monitors. In relation to civilian casualities, the
ICTY specifically noted:
“112. The attack on Dubrovnik, including the Old Town, on 6
December 1991 inevitably gave rise to civilian casualties. While
the Chamber heard evidence of many more victims of the shelling
that day, the Third Amended Indictment charges the Accused only in
relation to two deaths and two victims of serious injuries, both alleged
to have occurred in the Old Town.”
6.103 The ICTY concluded that:
“288. … the Old Town was extensively targeted by JNA artillery
and other weapons on 6 December 1991 and that no military firing
points or other objectives, real or believed, in the Old Town were
targeted by the JNA. Hence, in the Chamber’s finding, the intent of
the perpetrators was to target civilians and civilian objects in the Old
Town.”
6.104 The ICTYfound as a fact that the JNAhad deliberately provided false
reports to create the impression that the 6 December 1991 attack had been a
spontaneous action, when it was in fact a carefully planned and premeditated
operation:
“97. Questions arise whether the false reports and records were
contrived after the event, or were part of a deliberate plan put in
place to provide the JNA with a ready justification for its conduct.
Some reports were made after the events, other records appear
contemporaneous, though contrived. … the circumstances reveal that
the JNA deliberately put in place false records to indicate that the
attack was undertaken spontaneously by Captain Kovačević by virtue
Volume 6.indd 240 12/14/2010 2:34:08 PM 241
of Croatian “provocations” during the night of 5-6 December 1991.
This required planning and coordination of some sophistication.
Contrary to what is suggested by the false records, the Chamber finds
that Captain Kovačević was carrying out orders, given the previous
day, in making the attack. It was not his own spontaneous and ill-
considered action on the morning of 6 December 1991.”
6.105 Miodrag Jokić and Pavle Strugar were each sentenced to 7 years’
imprisonmentfortheirpartintheattacksonDubrovnikinDecember1991.Both
Jokić and Strugar are also the subject of an Indictment before the Dubrovnik
County Court, along with 8 others, concerning the atrocities committed in
the Dubrovnik region in October and November 1991, including the killing,
inhumane treatment and displacement of civilians and the destruction and
looting of villages.32
CONCLuSIONS
6.106 The analysis conducted by the Applicant in this Chapter of its Reply
reinforces the conclusions set out at the end of Chapter 5. The deficiencies in
the Respondent’s Counter-Memorial identified at the outset of Chapter 5 are
again borne out by the Applicant’s analysis set out in Chapter 6. Again, the
Respondent:
• Provides selective and misleading summaries of the Memorial;
• Makessweepingandlegallyunmeritoriouscriticismsofcategories
of evidence;
• Ignores many significant parts of theApplicant’s case;
• Distorts the ICTY case law; and
• At no point advances any positive case on the allegations made by
theApplicant nor adduces any of its own evidence.
6.107 Bywayofcontrast,manyoftheincidentsrelieduponbytheApplicant
intheMemorialhavesincebeenthesubjectoffindingsbytheICTYinMartić,
Babić, Strugar and Jokić cases, which confirm in substantial part the evidence
relied upon by theApplicant, both in the Memorial and in this Reply.
6.108 AstheICTYsummarisedinBabić,betweenAugust1991andFebruary
1991:
“Serb forces comprised of JNA units, local Serb TO units, TO units
132 Dubrovnik County State Attorney’s Office, Indictment against Jevrem Cokić et al., 10
November 2009, Annex 84.
Volume 6.indd 241 12/14/2010 2:34:08 PM 242
from Serbia and Montenegro, local MUP police units, MUP police
units from Serbia, and paramilitary units attacked and took control of
towns, villages, and settlements in the SAO Krajina. After the take-
over, in cooperation with the local Serb authorities, the Serb forces
established a regime of persecutions designed to drive the Croat
and other non-Serb civilian populations from these territories. The
regime, which was based on political, racial, or religious grounds,
included the extermination or murder of hundreds of Croat and other
non- Serb civilians …; the prolonged and routine imprisonment and
confinement of several hundred Croat and other non-Serb civilians
in inhumane living conditions …; the deportation or forcible transfer
of thousands of Croat and other non- Serb civilians from the SAO
Krajina; and the deliberate destruction of homes and other public and
private property, cultural institutions, historic monuments, and sacred
sites of the Croat and other non-Serb populations …” 133
133Babić, paras. 14-15.
Volume 6.indd 242 12/14/2010 2:34:08 PM 243
CHAPTER 7
JURISDICTION OVER EVENTS PRIOR TO 27APRIL1992
INTRODUCTION
7.1 In Chapter IV of its Counter-Memorial the Respondent argues that
acts and omissions that took place before 27 April 1992 cannot entail its
international responsibility because the State only came into existence on that
date and was not bound by the Genocide Convention prior to it. Alternatively
it argues that Croatia only came into existence on 8 October 1991 a1d cannot
raise claims based on facts preceding its coming into existence. According to
theRespondent,eithersituationwouldrequiretheCourttoapplytheGenocide
Convention retroactively, contrary to the principle of non-retroactivity
reflected in Article 28 of the Vienna Convention on the Law of Treaties. 2
Furthermore, the Respondent argues that the principle of attribution reflected
inArticle10(2)oftheILCArticlesonStateResponsibility,attributingtoanew
State the conduct of “a movement, insurrectional or other, which succeeds
in establishing a new State in part of the territory of a pre-existing State”,
does not assist Croatia for several reasons: (a)Article 10(2) does not represent
customary international law, (b) it does not apply to the case of Serbia, (c) it
is merely a rule of attribution, not one concerning breach; and the issue of the
lawfulness under the Convention of the conduct of persons acting as Serbian
officials could only arise after the Convention entered into force for Serbia
on 27 April 1992, and (d) Article 10(2) does not apply in cases where the
3
predecessor State is responsible.
7.2 In reply to these contentions, it is submitted that there is no indication
in the wording of the Genocide Convention, nor any hint in the travaux
préparatoires, to suggest it is subject to temporal limitations of such a kind as
relied on by the Respondent. As the Court’s jurisprudence makes clear, the
Convention was specifically constructed to be as broad and as universal as
possible, both in its substantive coverage and its provision for settlement of
disputes: the Court observed in 1996 and reaffirmed in 2008 that there is no
4
express limitation ratione temporis in the Genocide Convention (see Section
I). Section II deals with the existence and capacity of theApplicant to invoke
responsibility under the Convention on the one hand and of the Respondent to
be held responsible on the other hand. As to the Applicant, although it only
came into existence as a legal person on 8 October 1991, that fact is irrelevant
to the subsequent invocation of responsibility in respect of the Convention.
1 Counter-Memorial, paras. 206, 357-387.
2 Counter-Memorial, paras. 226-230.
3 Counter-Memorial, paras. 280, 284.
4 Case Concerning the Application of the Convention on the Prevention and Punishment of
theCrimeofGenocide(Croatiav.Serbia),PreliminaryObjections,Judgmentof18November
2008, ICJ Reports 2008 p.412, 428, para. 123.
Volume 7.indd 243 12/14/2010 2:40:23 PM 244
As to Serbia, the question is resolved either by the self-proclaimed/de facto
continuity of Serbia or, alternatively, by Article 10(2) of the ILC Articles
on State Responsibility, which reflects customary international law and was
applicable to the facts of the present case. Finally, the Applicant invokes the
effect of FRY’s 1992 declaration of continuation of SFRY’s multilateral treaty
rights and obligations, which amounts to an assumption of responsibility (see
Section III). Section IV sets out the conclusions.5
SECTION I: TEMPORALSCOPE OFTHE GENOCIDE
CONVENTION: SUBSTANTIVE PROVISIONSAND
COMPROMISSORY CLAUSE
7.3 Implicit in the Respondent’s treatment of the Convention in the
Counter-Memorial, as in earlier pleadings, is a vision of the Convention as a
synallagmatic bargain between the States parties to it, giving rise to a “bundle
of bilateral obligations”, just as if it were a framework for bilateral consular
relations or the provision of air services. But this is not how the Court has
approached the Convention.
(1) Th eG e n o c ieo n v eni o nr eGu l aTe sa nesi nG c r i m e
7.4 The precursor to the Genocide Convention was GA resolution 96(I),
adopted unanimously on 11 December 1946. The resolution declared that
genocide was “contrary to moral law” and that its punishment “is a matter of
international concern”. Its first operative paragraph read:
“Affirms that genocide is a crime under international law which the
civilizedworldcondemns,andforthecommissionofwhichprincipals
and accomplices – whether private individuals, public officials or
statesmen, and whether the crime is committed on religious, racial,
political or any other grounds – are punishable.”6
7.5 ThustheConvention,adoptedjusttwoyearslateron9December1948,
is in declaratory mode: it is a Convention on the Prevention and Punishment
of a crime conceived of as already existing. The first preambular paragraph
refers back to GAresolution 96(I):
“Having considered the declaration made by the GeneralAssembly of
theUnitedNationsinitsresolution96(I)dated11December1946that
genocide is a crime under international law, contrary to the spirit and
aims of the United Nations and condemned by the civilized world;”.
Article 1 correspondingly provides:
5 For the Applicant’s arguments at the preliminary objections stage see Memorial, paras.
6.13-15, 8.32-36; Croatia Written Statement, Chapter 3, pp. 11-32, the substance of which, as
it pertains to these issues, is fully incorporated by reference here.
6 GA Res. 96(I) of 11 December 1946.
Volume 7.indd 244 12/14/2010 2:40:23 PM 245
“The Contracting Parties confirm that genocide, whether committed
in time of peace or in time of war, is a crime under international law
which they undertake to prevent and to punish.”(emphasis added)
7.6 The object and purpose of the Convention is to make provision for
the effective prevention and punishment of the prohibition of genocide, not to
institute that crime as a new crime under international law as such. It is true
that national jurisdiction is limited to crimes occurring on the territory of the
State (Article VI), but international jurisdiction, whether of the international
criminaltribunaltobeestablishedorofthisCourt,wasnotsolimited.Genocide
was to be considered a crime wherever it occurred.
7.7 The Respondent describes the Convention as future-oriented, enacted
7
“to secure that no future instances of genocide will take place”. But the word
“future” is supplied by the Respondent, who fails to reflect the declaratory
character of the Convention, and the fact that it is concerned not only with
prevention but also the punishment of genocide.
7.8 The special character of obligations under the Convention was
emphasised by this Court in its advisory opinion of 28 May 1951. There the
Court said:
“The origins of the Convention show that it was the intention of the
United Nations to condemn and punish genocide as ‘a crime under
international law’involving a denial of the right of existence of entire
human groups, a denial which shocks the conscience of mankind and
results in great losses to humanity, and which is contrary to moral law
and to the spirit and aims of the United Nations (Resolution 96 (I) of
the General Assembly, December 11th 1946). The first consequence
arising from this conception is that the principles underlying the
Convention are principles which are recognized by civilized nations
as binding on States, even without any conventional obligation …
The Genocide Convention was therefore intended by the General
Assembly and by the contracting parties to be definitely universal in
scope. …
The objects of such a convention must also be considered. The
Convention was manifestly adopted for a purely humanitarian and
civilizing purpose. It is indeed difficult to imagine a convention that
might have this dual character to a greater degree, since its object
on the one hand is to safeguard the very existence of certain human
groups and on the other to confirm and endorse the most elementary
principles of morality. In such a convention the contracting States do
not have any interests of their own; they merely have, one and all, a
common interest, namely, the accomplishment of those high purposes
7
Counter-Memorial, para. 237 (emphasis in original).
Volume 7.indd 245 12/14/2010 2:40:23 PM 246
which are the raison d’être of the convention. Consequently, in a
convention of this type one cannot speak of individual advantages or
disadvantages to States, or of the maintenance of a perfect contractual
balance between rights and duties. The high ideals which inspired the
Convention provide, by virtue of the common will of the parties, the
8
foundation and measure of all its provisions.” (emphasis added)
7.9 The obligation to prevent and punish genocide is an early example of
what would come to be called an obligation erga9omnes, an obligation owed
to the international community as a whole.
7.10 TheRespondentacknowledgessomeofthis. 10Butitpersistsinseeing
in the Convention the source of a concept of genocide, and of obligations in
regard to genocide, which are dissociated from the customary international
law prohibition. There is, for the Respondent, “treaty genocide” and
“customary international law genocide”, and the two are supposedly distinct
and destined never to meet. Thus, it says, “this is not a case about compliance
with customary obligations governing questions of genocide, even where
the treaty-based prohibition and the customary international law prohibition
of genocide are identical insofar as their content is concerned”. 11 But this
is inconsistent with the recognition by the parties, in the preamble (with its
reference to GA resolution 96(I)) and in Article 1, that there is complete
identity between the concept of genocide under customary international law
and under the Convention. There was (and is) a single crime, which as a result
of recent dreadful events had been recognised not only as “contrary to moral
law” but as a “crime under international law” and for whose prevention and
punishmenttheConventionwasanecessaryinstrument. WhattheConvention
provided that was new was (a) an authoritative definition, and (b) a framework
for “international cooperation” in relation to the application and enforcement
of an underlying customary international law prohibition.
7.11 The point may be tested by postulating aWorldWar II genocidaire, E,
who is hiding in a State party to the Convention (StateA). Can it be suggested
that that State is not obliged to extradite the person concerned to State B, also
a State party, on whose territory the crime was committed and which has an
extradition treaty with StateA? Can it be imagined that StateAcould prevail
in its argument that E was not amenable under the Convention because (the
Convention not being retrospective) he could not have committed genocide
contrary to its terms? Or that the genocide was a “political crime” because
Article 7 of the Convention could have no application to it? Far from being
8 Reservations to the Genocide Convention, I.C.J. Reports 1951 p. 15, 23.
9 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment,
I.C.J. Reports 1996 (II), p. 595, 616, para. 31.
10
11 Counter-Memorial, para. 211.
Ibid., and see also Counter-Memorial, paras. 247, 334.
Volume 7.indd 246 12/14/2010 2:40:23 PM 247
a reaction to the genocide committed during the War, the Convention on this
analysis – which the Respondent persists in calling “lock-step” 12 – would
actually privilege and protect World War II genocidaires. There is no trace of
any such intention in the text of the Convention, or in its travaux, or that may
be discerned anywhere in its underlying object and purpose.
7.12 In short, there is no such thing as “genocide relative to State A”, or
“genocide as between State A and State B”. “[I]n a convention of this type
one cannot speak of individual advantages or disadvantages to States, or of the
13
maintenance of a perfect contractual balance between rights and duties.” It
may be accepted that the obligations of international cooperation set out in the
Convention might be variable and contingent (e.g. depending on reservations
in place and the legal regimes of the two States). But in law, the basic concept
of genocide is neither of these things.
7.13 The Respondent suggests that “even if the content of the prohibition
of genocide under customary international law and in the Convention is
identical, it is the Convention that brought fundamental changes as to the
14
enforcement of the prohibition”, in particular by Article IX. But this is to
confuse substantive obligations and jurisdictional provisions, which the Court
has always been careful not to do. Obviously if the Convention has never
applied to a State then the State’s responsibility cannot be invoked under
the Convention. But the question here is a quite different one: whether the
Conventionappliestotheenforcementofresponsibilityinrelationtogenocide
whenever occurring, or only in relation to genocide occurring after the entry
into force of the Convention for the State concerned. The choice between the
two cannot be made by reference to the presumption against retroactivity of
treaties, since neither interpretation involves retroactivity properly so-called:
the State is still only responsible for breach of an obligation in force for it at
15
the time, and only for conduct attributable to it under international la▯w.
7.14 As noted above, the Court observed in 1996 and again in 2008 that
16
there is no express limitation ratione temporis in the Genocide Convention.
To the contrary:Articles I and XIVreflect the intention of the Parties to extend
its temporal scope of application. Any positive acknowledgment of the gap
as proposed by the Respondent would defeat the spirit of the Convention,
creating a dangerous precedent for impunity of any State undergoing a process
ofdissolutionorclaimingtobeinstatunascendi,whichis–notcoincidentally
– the period when atrocities are most likely to occur. 17
12 Cf. Counter-Memorial, para. 350, citing CR 2008/11, p. 14, para. 23 (Crawford).
13
14 Reservations to the Genocide Convention, I.C.J. Reports 1951 p. 15, 23.
15 Counter-Memorial, para. 247.
Cf. ILC Articles on Responsibility of States for Internationally Wrongful Acts, 2001, Arts.
2, 13.
16 Croatia Preliminary Objections, p. 412, 428, para. 123.
17 The Respondent cites the Ambatielos case in support of its non-retrospectivity argument:
Ambatielos case (merits: obligation to arbitrate), Judgment of May 19th, 1953: I.C.J. Reports
Volume 7.indd 247 12/14/2010 2:40:23 PM 248
7.15 The Badinter Commission dealt extensively with the legal issues
arising out of the dissolution of the SFRY. In its very first opinion the
Commission underlined the need for all human rights conventions to which
SFRY had been a party to remain in force with respect to all territories of
18
SFRY. This proposition was never challenged by the FRY. Indeed, it was
duly implemented in its reformed Constitution, as will be seen. 19
7.16 Such an approach is also reflected in the Human Rights Committee’s
Comment 26 reaffirming that:
“[universalhumanrights]belongtothepeoplelivingintheterritoryof
the State party. The Human Rights Committee has consistently taken
the view, as evidenced by its long-standing practice, that once the
people are accorded the protection of the rights under the Covenant,
such protection devolves with territory and continues to belong to
them, notwithstanding change in Government of the State party,
including dismemberment in more than one State or State succession
or any other subsequent action of the State party designed to divest
20
them of the rights guaranteed…”
(2) Te m p o r aslcopeo fj u r i s do np u r s uTnTo a rTi c lix
7.17 The second point in response to the Respondent’s objection ratione
temporis concerns the interpretation of the compromissory clause, Article IX
21
of the Genocide Convention, in order to determine its scope of application.
This issue should be approached from the perspective of general international
law on treaty interpretation, bearing in mind the special characteristics of
the Convention, as well as the distinction consistently drawn by the Court
between the scope of the substantive obligations forming the subject matter of
the dispute on the one hand and the temporal scope of its jurisdiction on the
other.23
1953, p. 10, cited Counter-Memorial, para. 23; but that was a totally different case: a dispute
concerning an obligation to arbitrate a commercial claim arising under a bilateral treaty.
18
Arbitration Commission, EC Conference on Yugoslavia: Badinter, Chairman, Opinion No.
1, 29 November 1991, 92 ILR 162.
19 See below, Section D.
20 Human Rights Committee, General Comment 26 (61), General Comments under article
40, paragraph 4, of the International Covenant on Civil and Political Rights, Adopted by the
Committee at its 1631st meeting, paras 3-4.
21
See Croatia Preliminary Objections, p. 412 p. 4, 519-520, Separate Opinion of Judge
Tomka, paras 11-12.
22Reservations to the Convention on Genocide, I.C.J. Reports 1951, p. 15, 23. See also Bosnia
case, p. 595, 634 (Separate Opinion of Judge Shahabuddeen).
23Armed Activities on the Territory of Congo (New Application: 2002) (Democratic Republic
of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, pp 50-
51, para. 123.
Volume 7.indd 248 12/14/2010 2:40:23 PM 249
7.18 It is useful to recall the precise wording ofArticle IX:
“Article IX
DisputesbetweentheContractingPartiesrelatingtotheinterpretation,
application or fulfillment of the present Convention, including those
relating to the responsibility of a State for genocide or for any of
the other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties to
24
the dispute.”
7.19 This issue is distinct from that concerning the temporal scope of
application of the substantive provisions of the Genocide Convention,
discussed above. As the Court noted in the South West Africa cases (Second
Phase)
“The faculty of invoking a jurisdictional clause [of a treaty] depends
upon what tests or conditions of the right to do so are laid down by
the clause itself.”25
Commentators rightly observe in this respect that Article IX is “a model of
clarityandsimplicity,openingtheseizingoftheCourtaslargelyaspossible.” 26
In principle, Article IX applies to every dispute concerning responsibility for
or in relation to genocide to which the Convention itself applies. There is no
separate or distinct ratione temporis limitation to the application of Article
IX.
7.20 It is true that on 12 March 2001, Serbia and Montenegro purported
to “accede” to the Genocide Convention, with a reservation as to Article IX.
Assuming,forthesakeofargument,thatthereservationthenmadewaseffective
forthefuture,itisclearthatitcanhavehadnoeffectonthejurisdictionalready
invoked by the Applicant in its Application of 2 July 1999 and confirmed by
its Memorial of 1 March 2001. In accordance with the Court’s decision of 18
November 2008, 27the Court’s jurisdiction had by then been perfected, and
28
subsequent developments cannot be considered relevant.
7.21 Turning to the interpretation of Article IX, it should be noted that
compromissory clauses are subject to autonomous interpretation due to their
24 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, 1
January 1948, Article IX.
25 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase,
Judgment of 18 July 1996, I.C.J. Reports 1966, p. 37, para. 60.
26
Robert Kolb, “The Compromissory Clause of the Convention” in Paola Gaeta (ed), The UN
Genocide Convention, A Commentary (OUP, 2009), p. 420.
27 Croatia, Preliminary Objections, p. 412.
28 See Shabtai Rosenne, The Law and Practice of the International Court 1920-2005 (4 ed.,
Leiden: Martinus Nijohoff, 2006) (hereinafter “Rosenne”), Vol. III, 1153.
Volume 7.indd 249 12/14/2010 2:40:23 PM 250
special status within treaties. The separate consideration due to procedural as
compared with substantive provisions was already underlined by this Court in
the context of the Genocide Convention. 29
7.22 In its previous jurisprudence relating to interpretation of compromis-
soryclauses,thisCourtanditspredecessorhaveconsistentlytakentheposition
that they encompass disputes and situations arising prior to their ratification,
unless explicitly stated otherwise in the instrument or by the State when giv-
ing its consent to the clause e.g. through entering a reservation to that effect.
For example, in Mavrommatis Palestine Concessions the Permanent Court of
International Justice stated that:
“in case of doubt, jurisdiction based on an international agreement
embraces all disputes referred to it after its establishment … The
reservations made in many arbitration treaties regarding disputes
arising out of events previous to the conclusion of the treaty seems
to prove the necessity for an explicit limitation and, consequently the
correctness of the rule of interpretation enunciated above.” 30
7.23 The Court observed in Nicaragua with respect to declarations
accepting the compulsory jurisdiction of the Court that they can be made
“unconditionallyandwithoutlimitoftime…ormaylimititseffectstodisputes
31
arising after a certain date”. In Certain Property, the Court applied to the
compromissory clause of a multilateral convention its previous jurisprudence
on temporal limitations of unilateral declarations accepting its jurisdiction,
32
finding no reason to interpret them differently.
7.24 Thus Shabtai Rosenne draws a distinction between retroactive
application of substantive and of dispute settlement provisions of treaties,
stating that there is a presumption in favour of the retroactive effect of titles
of jurisdiction, based on the major premise that “the purpose of a clause of
jurisdiction is always to confer jurisdiction upon the Court and not to deprive
it of jurisdiction”; it follows that “any instrument conferring jurisdiction on
33
the Court must be presumed to have been drawn with regard to it.”
29 Armed Activities on the Territory of Congo (New Application: 2002) (Democratic Republic
of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, para.
30.
Mavromatis Palestine Concessions, PCIJ 1924, Series A, No. 2, p. 6, at 35. See also Anglo-
Iranian Oil Co. case (jurisdiction), Judgment of 22 July 1952, I.C.J. Reports 1952, p. 93, 104-
107. See also Phosphates in Morocco, Ser A/B No 74 (1938), p. 24.
31 Military and Paramilitary Activities in and against Nicaragua, Preliminary Objections,
I.C.J. Reports 1984, p.392, 418, para. 59.
32 Certain Property (Liechtenstein v. Germany), Preliminary Objections, I.C.J. Reports
2005, p. 6, 24, para. 43.
33
Rosenne, Volume II; Jurisdiction (Brill 2006), p. 915 et seq.
Volume 7.indd 250 12/14/2010 2:40:23 PM 251
7.25 This is further reinforced by a contextual interpretation of the
compromissory clause. Given the close interrelationship between the
provisions of the Convention, when read in conjunction with Articles I and
XIV, there is every reason to construeArticle IX as covering all cases to which
the Convention itself applies.
7.26 This conclusion is not incompatible with GA Resolution 47/1 of
22 September 1992 adopted upon recommendation by the Security Council
Resolution 777 (1992): both instruments were limited to addressing only the
issue of automatic continuation of SFRY’s membership in the UN, with no
referencetothestatusofSFRYorYugoslaviaasapartytomultilateraltreaties.
Indeed, the Legal Counsel took the view that the Secretary General was not
in a position as depository to reject or disregard Yugoslavia’s claim that it
continued the legal personality of the SFRY in the absence of any decision to
the contrary by a competent UN or other treaty organ.
7.27 As observed by Judge Shahabuddeen in his Separate Opinion in
1996:
“It is difficult to appreciate how the inevitability of such a break in
protection could be consistent with a Convention the object of which
was ‘on the one hand…to safeguard the very existence of certain
human groups and on the other to confirm and endorse the most
elementary principles of morality’…the object and purpose of the
Genocide Convention required parties to observe it in such a way as
to avoid the creation of such a break in the protection it afforded.” 34
7.28 The particular wording of the compromissory clause of the
Convention is relevant here. In addition to the standard phrase “interpretation
and application”, Article IX adds the category of “fulfillment”. Fulfillment
implies a non-synallagmatic obligation of result, referred to the Court
for a determination of responsibility by any State entitled to invoke that
responsibility. In this context it must be stressed again that the purpose of the
Convention is to prevent and punish the crime of genocide, not to regulate the
relations of States as such.
7.29 This broad interpretation of the temporal scope of Article IX is
strongly supported by the preparatory work of the Convention. 35 In the Sixth
Committee the debate of the compromissory clause only extended from the
rd th 36
103 tothe105 meeting, duringwhichtheGreekproposaltodeletetheword
“fulfillment” as being superfluous repetition of “application” was rejected by
34
Bosnia, pp. 595, 635 (Separate Opinion of Judge Shahabuddeen).
35 Counter-Memorial, para. 242 fails to discuss the travaux, confining itself to a four line
assertion that they “do not contain any indication” of a retroactive intent.
36 Doc. A/C.6, SR.103-105, Official Records of the Third Session of the General Assembly,
Part I, Sixth Committee, Summary Records of Meetings 21 September - 10 December 1948,
at 428 et seq.
Volume 7.indd 251 12/14/2010 2:40:24 PM 252
27 votes to 10 with 8 abstentions due to the consideration that the former
went somewhat beyond simple application. 37According to India, which voted
against the retention of “fulfillment” in the draft:
“the word ‘application’included the study of circumstances in which
theconventionshouldorshouldnotapply,whiletheword‘fulfillment’
referred to the compliance or non-compliance of a party with the
provisions of the convention. The word ‘fulfillment’ therefore had a
38
much wider meaning.”
7.30 Inthediscussionsofthedraftcompromissoryclausethatfollowed,the
United Kingdom also underlined that acts of genocide did not occur suddenly
as:
“genocide was a process in which racial, religious or political groups
were gradually destroyed. When it became clear that genocide was
being committed, any party to the convention could refer the matter
to the International Court of Justice.” 39
It was further observed by Greece in this context that “As a general rule,
the State was responsible for acts of genocide committed in its territory…
[g]enocide could be committed against the nationals of the State itself, or
against aliens.” 40India explained its vote against the provision because in its
view, it was:
“capable of being interpreted in a much wider sense than the authors
of the amendment had themselves intended. By virtue of that article,
StatespartiestotheconventioncouldbecalledbeforetheInternational
Court of Justice on the basis of vague accusations, for instance, that
they had not carried out the provisions of the convention or that they
were implicated in the acts…” 41
This concern was clearly not shared by the majority of States which voted in
favour of Article IX. These discussions and understandings of the scope of
the Genocide Convention are pertinent to the present case: they show that the
participants were well aware of the potential scope of the term “fulfilment”,
but nevertheless confirmed its inclusion.
7.31 On the basis of these considerations the Court should uphold its
temporal jurisdiction with respect to the entirety of the present disput▯e.
37 Official Records of the Third Session of the General Assembly, Part I, Sixth Committee,
38mmary Records of Meetings 21 September - 10 December 1948, p. 447.
Doc. A/C.6, SR.103, Official Records of the Third Session of the General Assembly, Part I,
Sixth Committee, Summary Records of the 103 Meeting on 12 November 1948.
39 Doc. A/C.6, SR.104, Official Records of the Third Session of the General Assembly, Part I,
Sixth Committee, Summary Records of the 104 Meeting on 13 November 1948.
40 Ibid..
41 Ibid..
Volume 7.indd 252 12/14/2010 2:40:24 PM 253
42
SECTION II: INVOCATIONANDATTRIBUTION OF CONDUCT
7.32 Assuming that the Convention was applicable at all relevant times,
there is still a question as to its application ratione personae. According to
the Respondent, this affects both parties to the present case: the Applicant
cannot invoke responsibility prior to its own emergence as a State since the
Convention cannot have applied to it intuitu personae prior to that date; nor
can it apply to Serbia, whose separate existence as a State dates from 27April
1992. The Respondent claims that any conduct of Serbian authorities prior
to that date cannot be attributed to a State which did not then exist: even if
genocide was committed in the cause of Greater Serbia, by Serbian officials
acting as such under a Constitution which treated Serbia as “independent”
and Serbian interests as paramount, the State responsibility for their conduct
was exclusively the SFRY. Serbia, by contrast, was born free on 27 April
1992, after each of Slovenia, Croatia, Macedonia and even after Bosnia and
Herzegovina. Relative to those new States it is a newcomer.
7.33 Before going into further detail, the Respondent’s account of the
matter calls for three preliminary comments.
1. The first is that it bears no relationship to reality. The reality of
the matter is that – as described in the opinions of the Badinter
Commission and further in Chapter 3 above – the Serbian
leadership in Belgrade had long before been acting on its own
agenda which had nothing to do with the constitutional integrity
of the SFRY.
2. The second comment is that the disintegration of the SFRY was
a process which was already well advanced by the second half
of 1991. The adoption of the 1992 Constitution by Serbia was
the last formal step in that process. In the circumstances, the
adoption by Serbia of the 1992 Constitution was recognition of
an existing reality, not more or less. Given that no existing State
claimed Serbian territory or contested Serbian independence (as
distinct from its entitlement to represent the former SFRY), the
unilateral declaration of independence was purely declaratory of
anexistingsituation:therewasaStateinexistenceontheterritory
in question; that State was not the SFRY. That it took another
seven years for the Serbian leadership finally to accept the latter
proposition casts no doubt on the former.
3. Thirdly, as a general matter State responsibility depends on
42Counter-Memorial,ChapterV,pp.85-133. FortheApplicant’sargumentsatthepreliminary
objections stage see Memorial, paras. 6.13-6.15, 8.32-8.36; Croatia, Written Statement on
Preliminary Objections, Chapter 3, pp. 11-32, the substance of which, as it pertains to these
issues, is incorporated by reference here.
Volume 7.indd 253 12/14/2010 2:40:24 PM 254
effective control, not on considerations of which sovereign
is involved. The position with bilateral treaties is obviously
different, but that is not this case. Genocide and related acts such
as complicity can be committed by any State: the identity of the
State matters not at all. As the ILC noted in its commentary to
Draft Article 10, “it is unnecessary and undesirable to exonerate
… a new State from responsibility for the conduct of its personnel
by reference to considerations of legitimacy or illegitimacy of
its origin”,43and a fortiori to the claims that State makes to its
identity or otherwise with another legal person. Thus the idea
that unlawful conduct of Serbian officials, taken in the perceived
Serbian interest on say 15 April 1992, cannot be attributed to
Serbia (“born” two weeks later) but only to the unresponding
ghost of the SFRY strains credulity. To adopt the words of Judge
Hudson (dissenting) in Lighthouses in Crete and Samos:
“A juristic conception must not be stretched to the
breaking-point, and a ghost of a hollow sovereignty
cannot be permitted to obscure the realities of this
situation.”44
7.34 IntermsofStateresponsibility,itisnecessarytodealwiththeposition
of Croatia and Serbia separately.
(1) c r o Ti ’s d aTe o fi n d e p e n discier r e l eaTno iTs i n v o i o n
o fr e s p o n s i bi n d eTh ec o n v eni o n
7.35 On12October1992Croatiasucceededtothe*/GenocideConvention.
Pursuant to Croatia’s notification to the Secretary-General of the United
Nations dated 27 July 1992, and in accordance with the Vienna Convention
on Succession of States with respect to Treaties (to which both Croatia and
45
Serbia are parties), the effect of this succession is that Croatia stepped into
the existing multilateral treaty rights and obligations of the SFRY as opposed
to acquiring them anew. Thus succession had retroactive effect back to the
date of independence of Croatia, viz., 8 October 1991.
7.36 The Respondent argues that Croatia cannot invoke responsibility
under a treaty at a time when, not being a State, it could not have been a
43 ILC, Commentary to Article 10, para. (11), citing the Court’s dictum in the Namibia
(South West Africa) advisory opinion: “[p]hysical control of a territory, and not sovereignty
or legitimacy of title, is the basis of State liability for acts affecting other States”. See Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 16,
44, para. 118.
PCIJ Ser. A/B No. 71 (1937), p. 127.
45 Vienna Convention on Succession of States in Respect of Treaties, 23 August 1978, 1946
UNTS 3.
Volume 7.indd 254 12/14/2010 2:40:24 PM 255
party to that treaty, or to an international relation of responsibility arising from
46
it. But even if this argument might be relevant to bilateral or synallagmatic
responsibility relations (quod non), 47 it has no bearing when it comes to
responsibility under a treaty such as the Genocide Convention.
7.37 The rights and obligations under the Genocide Convention are not
only declaratory of custom (as evidenced by the wording ofArticles 1 and 2);
they are also non-reciprocal in character, 48as consistently reaffirmed by this
Court. There is no need for both Parties to the dispute to have been Parties
to the Convention when the facts giving rise to it took place. Neither the
Court’s jurisdiction, nor the Respondent’s responsibility under the Genocide
Convention, are conditioned upon the date of Croatia’s independence as the
obligations under the Genocide Convention are owed to the international
community as a whole (erga omnes), and any State may invoke responsibility
for their breach.
7.38 Once more, attention must be drawn to the addition of the word
“fulfilment” in Article IX of the Convention (see paragraph 7.27 above).
Whether the Respondent fulfilled its obligations under the Convention
has nothing whatever to do with the date on which Croatia achieved its
independence. This question is precisely what the Court is requested to
adjudicate upon at present.
7.39 This conclusion accords with the rule expressed in Article 48 of the
ILC Articles on State Responsibility, which in turn is based on the Court’s
famous dictum in the Barcelona Traction case. 49Article 48 states:
“1. Any State other than an injured State is entitled to invoke the
responsibility of another State in accordance with paragraph 2 if:
(a) The obligation breached is owed to a group of
States including that State, and is established for the
protection of a collective interest of the group; or
(b) The obligation breached is owed to the international
community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1
may claim from the responsible State:
46 Counter-Memorial, paras. 367-387.
47 Cf . Certain Phosphate Lands in Nauru (Nauru v Australia), I.C.J. Reports 1992, p.240.
More generally see J Crawford, The Creation of States in International Law (2nd edn, OUP,
2006), Ch. 15.
48Reservations to the Convention on Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 15,
23, quoted in paragraph 7.8 above.
49 Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports
1970, p. 3, 32, para. 33.
Volume 7.indd 255 12/14/2010 2:40:24 PM 256
(a) Cessation of the internationally wrongful act, and
assurances and guarantees of non-repetition in
accordance with article 30; and
(b) Performance of the obligation of reparation in
accordance with the preceding articles, in the interest
of the injured State or of the beneficiaries of the
obligation breached.”
As the commentary toArticle 48 notes:
“Article 48 is based on the idea that in case of breaches of specific
obligations protecting the collective interests of a group of States or
the interests of the international community as a whole, responsibility
may be invoked by States which are not themselves injured in the
sense of article 42. Indeed in respect of obligations to the international
community as a whole, the International Court specifically said as
much in its judgment in the Barcelona Traction case.” 50
7.40 There has been some controversy about the term “international
community as a whole”, and a contrast has been drawn with the term
“international community of States as a whole” as used in Article 53 of the
51
Vienna Convention on the Law of Treaties. But what cannot be disputed is
that all States are ipso jure members of that community, irrespective of when
they came into existence: this prerogative belongs equally to all States, old
and new. No distinction is drawn in this context between States on the ground
of their dates of independence: the “international community as a whole” is a
dynamic, not a static concept, and it necessarily expands to include new States
recognized as such.
7.41 Moreover in the present case, the Applicant has standing to invoke
the Respondent’s responsibility not only as a member of the international
community, but also as a specially affected State within the meaning ofArticle
42(b)(i) of the ILC Articles. Article 42 (“Invocation of responsibility by an
injured State”), in so far as relevant, provides:
“A State is entitled as an injured State to invoke the responsibility of
another State if the obligation breached is owed to:
(a) That State individually; or
(b) A group of States including that State, or the
international community as a whole, and the breach
of the obligation:
50
ILC Commentary to Article 48, para. 2.
51Ibid., Commentary to Article 26, para. 5.
Volume 7.indd 256 12/14/2010 2:40:24 PM 257
(i) Specially affects that State; or
(ii) ...”
Obligations under the Genocide Convention are owed to the international
community as a whole, and it cannot be denied that Croatia was specially
affected by the conduct described in the Application, the Memorial and
this Reply, insofar as it was contrary to that Convention. The Respondent’s
Counter-Memorial does not make such a claim, and obviously cannot do so.
7.42 For all these reasons, the Applicant is entitled to invoke the
responsibility of the Respondent under the Genocide Convention, including in
respect of breaches of the Convention occurring prior to its own independence
on 8 October 1991.
(2)a s a s e fp r o c l a ieodnTi n uTo ro fsfryaT Th er e l e v a Tn
Ti m e(f o rTh i sc ae,a n da sa sTaTe in statun a s c e ndsie r b b e a r s
r e s p o n s i i n d ec o n v ei o n sf o rc o n d uTcaT TrTa b l eTo iT
u n d ei nTe r Ti o n al a w
7.43 But is the Respondent responsible for breaches of the Convention
occurring prior to 27 April 1992, the date formally accepted as the date of
the “independence” of the FRY (Serbia and Montenegro)? In its Preliminary
Objections judgment the Court joined this issue to the merits on the ground
that“thequestionsofjurisdictionandadmissibilityraisedbytheRespondent’s
preliminary objection ratione temporis constitute two inseparable issues in the
present case”. 52
7.44 ItisrespectfullysubmittedthattheRespondent’scombinedarguments
on jurisdiction/admissibility must fail, and this for several reasons. ▯
• First, because in its 1992 Constitution Serbia unequivocally and
unconditionally affirmed that it would continue to perform the
obligations of the SFRY.
• Secondly,becauseevenifSerbiahadnotagreedtocontinuetoperform
the obligations of the SFRY, the conduct of the Serbian authorities in
1991-1992 would still be attributed to Serbia under Article 10(2) of
the ILCArticles on State Responsibility.
(a) Serbia’s self-proclaimed continuity with regard to the
SFRY
7.45 Turning to the first argument of self-proclaimed/de facto continuity,
in its Preliminary Objections judgment, the Court stressed the need to
52 I.C.J. Reports 2008, p. 412, 460, para. 129.
Volume 7.indd 257 12/14/2010 2:40:24 PM 258
examine the factual issues surrounding the dissolution of the SFRY and the
establishment of the FRY. 53This has been done in detail in earlier pleadings, 54
and also in Chapter 3. The position may be summarized as follows. By its
1990 Constitution Serbia located itself as an independent State – separate and
distinct from the SFRY. Then, having established itself as a separate entity,
the Serbian leadership in the course of 1991 gradually assumed control over
the institutions of the SFRY, including its Presidency and the JNA. But the
constitutional,demographicandterritorialbasisforthattakeoverofinstitutions
was and remained Serbian.
7.46 Serbia’s Constitution of 28 September 1990 was effectively an
independence constitution, in that it stood entirely on its own feet, owing
nothing to the federal Constitution. For example,Article 72 provided:
“The following shall be regulated and provided by the Republic of
Serbia:
1) sovereignty, independence and territorial integrity of the
Republic of Serbia and its international position and relations with
other states and international organisations;
...
3) defence and security of the Republic of Serbia and of its
citizens; measures to cope with emergencies;
...
12) other relations of interest for the Republic of Serbia in
accordance with the Constitution.”
7.47 Article 135 of the 1990 Constitution defined the relationship between
Serbia and the still-extant federal Constitution of the SFRY. It provided:
“(1) Rights and duties which the Republic of Serbia, which is
part of the Socialist Federal Republic of Yugoslavia, has according to
this Constitution, and which are realised in the federation according
to federal Constitution, will be realised in accordance with federal
Constitution.
(2) When legislation of federal authorities or authorities of the
other republics conflict with the rights and duties that the Republic of
SerbiahasundertheSFRYConstitution,jeopardizestheindependence
53
54 I.C.J. Reports 2008, p. 412, 459, para. 127.
Croatia, Written Statement on Preliminary Objections, paras. 3.26-3.28, 3.32.3.34, 3.39-
3.40, 3.43-3.50.
Volume 7.indd 258 12/14/2010 2:40:24 PM 259
oftheRepublicofSerbiaorinsomeotherwayjeopardizesitsinterests
without providing compensation, the authorities of the Republic will
enact pass legislative documents for protection of the Republic of
55
Serbia’s interests.”
Article 135 was the only Article in Part VIII of the 1990 Constitution,
entitled “Relationship to the Constitution of the Socialist Federal Republic
of Yugoslavia”. It is the only mention of the SFRY in the 1990 Constitution,
which in all other respects is indistinguishable from the constitution of an
independent State. AndArticle 135 betrays no sign of Serbian subordination:
on the contrary, sub-paragraph (1) subordinates the federal Constitution to the
Constitution of Serbia, and sub-paragraph (2) provides for “defensive” action
in the event of conduct by otherYugoslav entities that, inter alia, “jeopardizes
the independence of the Republic of Serbia”. 56 Thus it was entirely a matter
for Serbia to decide whether to continue to perform its obligations under the
Constitution of the SFRY.
7.48 The new Constitution of the Federal Republic of Yugoslavia,
promulgated on 27April 1992 set out in clear terms the direction to be taken,
in claiming continuity with the SFRY, by now a phantom. Thus, the Preamble
of 1992 asserted the “unbroken continuity of Yugoslavia” before and after
1992. Article 16 of the Constitution of the Federal Republic of Yugoslavia
stated that:
“Article 16
(1) The Federal Republic of Yugoslavia shall fulfill in good faith
the obligations contained in international treaties to which it is a
contracting party.
(2) Internationaltreatieswhichhavebeenratifiedandpromulgated
in conformity with the present Constitution and generally accepted
rules of international law shall be a constituent part of the internal
legal order.”
Correspondingly, the FRY (Serbia and Montenegro) treated itself throughout
as a party to and as bound by the full range of treaties to which the SFRY was
a party. From the standpoint of Serbia itself there were no legal or time or
other gaps: the constitutions reflected an approach premised on nothing less
than complete continuity of the rights and obligations, initially in force for the
former Yugoslavia, throughout the period in question.
7.49 The Badinter Commission examined extensive factual evidence and
noted that by 1991 “the essential organs of the Federation … no longer meet
55
Translation by the Applicant.
56 Constitution of the Republic of Serbia, Belgrade, 28 September 1990, Preface, p.6.
Volume 7.indd 259 12/14/2010 2:40:24 PM 260
the criteria of participation and representativeness inherent in a Federal State”.
It noted further that during the process of the dissolution “the recourse to force
has led to armed conflict between the different elements of the Federation.” 57
7.50 During this period, Serbia’s message to the international community
was one of continuation of the legal obligations of the SFRY. It is true that the
international community did not accept the FRY’s underlying claim to identity
with the SFRY. This is clear from GAResolution 47/1 of 22 September 1992.
The situation has been repeatedly described by the Court, most recently in
its 2008 judgment in the present case. 58 But the FRY (as Serbia was during
this period) did not condition its acceptance of multilateral treaties on the
recognition by individual third States of its clam to identity with the SFRY.
It took advantage of the resulting ambiguous situation. Other constituent
republics of the former Yugoslavia notified their succession to the SFRY’s
multilateral treaties, but the FRY did no such thing: in effect it was hiding
behind the name “Yugoslavia” which continued to be listed as a party to
the treaties. In the result, its assurance of willingness to be bound by the
SFRY’s international obligations (on whatever basis) was accepted, but its
underlying claim of continuity was not. And the subsequent clarification of
the position, with the admission of the FRY as a new member of the United
Nations in November 2000, did not have (and cannot have had) the effect of
retrospectively freeing that State from the treaty obligations it had willingly
accepted and the treaty rights it had relied on during the intervening period.
As the Court held in 2003:
“General Assembly resolution 55/12 of 1 November 2000 cannot
have changed retroactively the sui generis position which the FRY
found itself in vis-à-vis the United Nations over the period 1992 to
2000, or its position in relation to the Statute of the Court and the
Genocide Convention. Furthermore, the letter of the Legal Counsel of
the United Nations dated 8 December 2000, cannot have affected the
FRY’s position in relation to treaties.” 59
7.51 As already noted, in the matter of responsibility, international law
looks to the fact of actual (de facto) control over those concerned, and not to
questions of title.60 In fact, 27April 1992 made no difference to the extent or
character of the control exercised by the FRY/Serbian authorities, including
over the units of the former JNA. To limit the international responsibility of
57
58 Opinion No. 1, 29 November 1991, pp. 1496-7.
59 I.C.J. Reports 2008, p. 412, 426-428, paras. 43-51.
Application for Revision of the Judgment of 11 July 1996 In The Case Concerning Bosnia
Preliminary Objections, p. 31, para. 71.
60 As the Court said in the Namibia (South West Africa), Advisory Opinion, “[p]hysical
control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability
for acts affecting other States”: Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), I.C.J. Reports 1971, p. 16, 54, para. 118.
Volume 7.indd 260 12/14/2010 2:40:24 PM 261
the FRY/Serbia to events occurring only after that date would be the merest
formalism.
(b) Attribution of pre-April 1992 conduct to the FRY,
now Serbia
7.52 Turning to the question of attribution, 61 to the extent that the
responsibility of Serbia is not established on other grounds, it arises for Serbia
by reason of the principle stated inArticle 10(2) of the ILCArticles. It will be
recalled thatArticle 10 reads as follows:
“Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement which becomes
the new government of a State shall be considered an act of that State
under international law.
2. The conduct of a movement, insurrectional or other, which
succeeds in establishing a new State in part of the territory of a
pre-existing State or in a territory under its administration shall be
considered an act of the new State under international law.
3. This article is without prejudice to the attribution to a State
of any conduct, however related to that of the movement concerned,
which is to be considered an act of that State by virtue of articles 4 to
9.”
7.53 The Respondent gives four reasons for rejecting this argument (see
paragraph 7.1 above).
7.54 First, it is said that – by contrast with the rule stated in Article 10(1)
(new governments of existing States) – Article 10(2) does not represent
customary international law. 62It is true that much of the practice relates to
insurrectional governments rather than movements to create a new State,
but the ILC (following Special Rapporteur Ago on first reading) was clear
that were good reasons to cover both situations. According to the Special
Rapporteur on second reading:
“the two positive attribution rules in article [10] seem to be accepted,
and to strike a fair balance at the level of attribution in terms of the
conflicting interests involved. It is true that there are continuing
difficulties of rationalisation, but there has so far been no suggestion
in government comments or in the literature that the substantive rules
61
For the Applicant’s arguments at the preliminary objections stage see Memorial, paras.
6.13-6.15, 8.32-8.36; Croatia, Written Statement on Preliminary Objections, Chapter 3, pp. 11-
32, the substance of which, as it pertains to these issues, is incorporated by reference here.
62 Counter-Memorial, paras. 285-293.
Volume 7.indd 261 12/14/2010 2:40:24 PM 262
should be deleted: if anything the proposals are for reinforcement. It
should be stressed however that the rules of attribution in the law of
state responsibility have a limited function, and are without prejudice
to questions of the validity and novation of contracts under their
63
proper law, or to any question of State succession.”
7.55 Governmentcomments,notablyonChapterIIofPartOne(attribution)
were generally favourable as well, and in the end Article 10 proved
uncontroversial. 64
7.56 The commentary justifiesArticle 10 as follows:
“where the movement achieves its aims and either installs itself as the
newgovernmentoftheStateorformsanewStateinpartoftheterritory
of the pre-existing State or in a territory under its administration,
it would be anomalous if the new regime or new State could avoid
responsibilityforconductearliercommittedbyit.Intheseexceptional
circumstances, article 10 provides for the attribution of the conduct of
thesuccessfulinsurrectionalorothermovementtotheState.Thebasis
for the attribution of conduct of a successful insurrectional or other
movement to the State under international law lies in the continuity
between the movement and the eventual government.” 65
th
7.57 The Respondent relies on a single academic article, focusing on 19
century authority, to counteract this substantial and consistent record. 66 It is
submittedthattheILC’sconclusionsonArticle10,supportedbycontemporary
and subsequent responses of States and by the preponderance of modern
practice and doctrine, should stand.
7.58 Secondly, it is said that even if Article 10(2) reflects customary
international law, it is inapplicable to the case of Serbia, where there was no
“movement” aimed at the creation of a new State of the kind envisaged by
63 James Crawford, First Report on State Responsibility, ILC Ybk. 1998 Vol. II (Pt. 1), para.
279.
64 James Crawford, Fourth Report on State Responsibility (A/CN.4/517 & Add. 1, 2001),
Appendix;andseetheremarksoftheChairmanoftheDraftingCommittee(Mr.PeterTomka),
summarizing the Committee’s conclusions: ILC Ybk. 2001 Vol. I, 94 (paras. 32-35). For the
initial comments of the Drafting Committee on what became Article 10, see the Report of
the Chairman of the Drafting Committee (Mr. Bruno Simma): ILC Ybk. 1998 Vol. I, 290-291
(paras. 86-91).
65 Commentary to Article 10, para. 5.
66
67 Counter-Memorial, paras. 292-293.
Summarised in Crawford, First Report, paras. 267-280. See also Eritrea-Ethiopia Claims
Commission, Partial Award, Civilian Claims (Eritrea’s Claims 15, 16, 23 & 27-32), 17
December 2004, 44 ILM 601, 610-11 (paras. 48-49, 51).
68 See James Crawford, Creation of States (2006) 656, referring to “the well established rule
that a seceding State will be held internationally responsible for acts performed by it in the
process of its formation”, and citing TC Chen, The International Law of Recognition (London,
Stevens, 1951) 179-81.
Volume 7.indd 262 12/14/2010 2:40:24 PM 263
Article 10(2), but rather the actions of officials of the SFRY (some of them
non-Serbs) aimed at preserving the federation. This novel and remarkable
suggestion raises issues both of law and fact.
7.59 As to the law, the ILC intended the reference to a “movement,
insurrectional or other” in Article 10(2) to be broadly construed to cover all
unconstitutional or irregular activity aimed at separation or the dissolution
of the State. After referring, in the context of Article 10(1), to “the wide
70
variety of forms which insurrectional movements may take in practice”, the
Commentary toArticle 10(2) goes on to say:
“(10) Ascomparedwithparagraph1,thescopeoftheattributionrule
articulated by paragraph 2 is broadened to include ‘insurrectional or
other’movements.This terminology reflects the existence of a greater
variety of movements whose actions may result in the formation of a
newState.Thewordsdonothoweverextendtoencompasstheactions
of a group of citizens advocating separation or revolution where these
are carried out within the framework of the predecessor State. Nor
does it cover the situation where an insurrectional movement within
a territory succeeds in its agitation for union with another State.
This is essentially a case of succession, and outside the scope of the
articles, whereas article 10 focuses on the continuity of the movement
concerned and the eventual new government or State, as the case may
be.”71
7.60 As to the requirement that the movement take place outside “the
framework of the predecessor State”, 72 this was intended to exclude from the
scope of Article 10 instances of constitutional advocacy for change. Beyond
that obvious point, the question is essentially one of fact and apprecia▯tion.
7.61 As to the facts, those responsible for the conduct of Serbia’s affairs
proclaimed their continuity with SFRY. The reality, however, as the evidence
shows, is that they were acting against the principle of Yugoslavia as a whole
and not at all “within the framework of the predecessor State”.
7.62 Reference may be made to the factual findings of the ICTY trial and
appealschambersincasesrelatedtotheseevents,whichsupporttheApplicant’s
approach. For example, in Martić the evidence showed “beyond reasonable
doubt” that from at leastAugust 1991 there was a common political objective
to unite Serb areas in Croatia and in Bosnia and Herzegovina with Serbia
in order to establish a unified Serb State, intended by President of Serbia
Slobodan Milošević through the establishment of paramilitary forces, and by
69 Counter-Memorial, paras. 284-316.
70 Commentary to Article 10, para. 9.
71
72 Ibid., para. 10.
Counter-Memorial, para. 305.
Volume 7.indd 263 12/14/2010 2:40:24 PM 264
the use of a JNA largely purged of its non-Serbian elements. This political
objective was implemented through widespread and systematic armed attacks
on predominantly Croat areas. Milan Martić was found to have actively
worked with the other participants to achieve the objective of a united Serb
state, which he also expressed publicly on more than one occasions. 73Other
examples of similar findings are summarised in Chapters 3 and 4 above.
7.63 It should be concluded that for some considerable time prior to April
1992 the FRY was indeed a State in statu nascendi and that the perpetrators
in question acted with the aim of creating a Serbian State. Rosenne observes
that the underlying connection between “the former ‘movement’ (whether
labeled ‘insurgent’, or ‘liberation’, or ‘nationalist’)” 74 and the new State are
the men and women who remain the same and the strongly marked element
75
of continuity in policy. As he concludes, there is no reason why a situation
which arose prior to the formation of the new State should not come before the
Court after its independence and that new States should seek to ensure against
a retroactivity stretching beyond “time as an ‘element’of the State”. 76
7.64 Thirdly, the Respondent emphasises that Article 10(2) is a rule of
attribution only, not one concerning the lawfulness of conduct. According
to the Respondent, this raises insuperable difficulties in that the lawfulness
of the conduct of persons qua Serbian officials cannot be judged under the
Convention prior to its entry into force for Serbia on 27April 1992. 77
7.65 This argument is a further manifestation of the Respondent’s attempt
to divorce the Genocide Convention from its customary international law
moorings, and to treat it as a mere contract between States concerning their
mutual relations (see paragraphs 7.4-7.13 above). For the reasons already
given, the conduct of Serbian officials was already governed by international
law(asdeclaredintheConvention):theonlyquestioniswhethertheirconduct
is attributable to Serbia. This, underArticle 10(2), it is.
7.66 Fourthly, it is said that even if Article 10(2) reflects customary
international law and is potentially applicable, it does not apply in cases where
78
thepredecessorStateisresponsible. AccordingtotheRespondent,theSFRY
is (or rather was) responsible for all the conduct in question, and there is no
79
scope for the application of ILCArticle 10(2).
7.67 An initial comment is that it is by no means clear that – if the issue
73 Martić, at para. 122-129.
74 Rosenne, Volume II: Jurisdiction (Brill 2006), p. 919.
75 Ibid..
76 Ibid ., quoting Hans Kelsen, Principles of International Law (2 ed., ed. R W Tucker,
7766), p. 381.
Counter-Memorial, paras. 330-350.
78 Counter-Memorial, paras. 320-350.
79 Counter-Memorial, paras. 351-364.
Volume 7.indd 264 12/14/2010 2:40:25 PM 265
could have been judicially tested (an entirely hypothetical possibility) –
the SFRY in a state of dissolution would have been legally responsible for
the conduct of the constituent republics, still less for the conduct of others
outside the immediate sphere of influence and control. In fact the constituent
republics were operating at all relevant times virtually entirely as separate
units and in the (perceived) interest of their own people. The international law
of responsibility can, should and – it is submitted – does reflect that reality.
7.68 As the ILC’s Commentary notes, it is true that in cases involving
Article 10(2), the predecessor State will normally not be responsible for the
conduct in question. 80 The case for the special rules contained inArticle 10 is
to sheet home responsibility to a State for what would ordinarily be non-State
action, subject to the very limited mechanisms for applying and enforcing
international law against non-States.
7.69 But as the Commentary also points out, Article 10 covers a wide
variety of situations. In some, the predecessor State will continue to exist,
in others it will not. The possibility that the predecessor State may also be
responsible for the conduct on some basis is expressly preserved by Article
10(3), which the ILC decided to retain even though questions had been raised
as to its utility. The point is made in the commentary:
“(15) ExceptionalcasesmayoccurwheretheStatewasinaposition
to adopt measures of vigilance, prevention or punishment in respect
of the movement’s conduct but improperly failed to do so. This
possibility is preserved by paragraph 3 of article 10, which provides
that the attribution rules of paragraphs 1 and 2 are without prejudice
to the attribution to a State of any conduct, however related to that
of the movement concerned, which is to be considered an act of that
State by virtue of other provisions in Chapter II. The term “however
relatedtothatofthemovementconcerned”isintendedtohaveabroad
meaning. Thus the failure by a State to take available steps to protect
the premises of diplomatic missions, threatened from attack by an
insurrectional movement, is clearly conduct attributable to the State
and is preserved by paragraph 3.”
Thus, even if (quod non) the conduct of Serb officials in the present case were
to be considered as notionally attributable to the SFRY under Article 4, as
the Respondent claims, that would not preclude the same conduct from being
attributable to Serbia underArticle 10(2).
80 Commentary to Article 10, para. 6.
Volume 7.indd 265 12/14/2010 2:40:25 PM 266
(c) Application of ILC Article 10(2) and the jurisdiction
of the Court under Article IX of the Convention
7.70 It remains to deal with a point raised by Judge Tomka in his separate
opinioninthePreliminaryObjectionsphaseandreliedonbytheRespondent. 81
He said:
“13. UndertheruleofcustomaryinternationallawcodifiedinArticle
4 of the ILC Articles on Responsibility of States for Internationally
WrongfulActs, the conduct of an organ of a territorial unit of the State
(and both Croatia and Serbia were territorial or constituent units of
the SFRY) is considered as an act of the State, attributed to this State
and thus engaging the international responsibility of that State, if it is
not in conformity with what is required by an international obligation
resting upon that State. When that State ceases to exist, as was the
case of the SFRY which disintegrated in the process of dissolution
which was completed before summer 1992 ... the issue of succession
to responsibility may arise. Similarly, when a territorial unit of a
predecessor State succeeds in its effort to secede and establishes itself
as a separate State, the issue of the responsibility of the separate State
for acts which were committed by the organs of that entity before
it established itself as a State with international legal personality
may arise. But clearly, regarding these two issues, neither that of
succession into responsibility of the predecessor State nor that of the
responsibility of an entity for acts committed before it became a State
— and thus could have become a party to the Genocide Convention
— fall within the jurisdiction of the Court under Article IX of the
Genocide Convention. That jurisdiction covers “disputes between
the Contracting Parties relating to the interpretation, application or
fulfilment of the . . . Convention” by its Contracting Parties.The FRY,
now continuing as Serbia, became a Contracting Party on 27 April
1992.” 82
7.71 Butwithgreatrespect,ArticleIXdoesnotexcludedisputesconcerning
succession to or assumption of responsibility or disputes concerning the
application of principles of attribution such as that embodied in Article 10(2)
of the ILC’sArticles on State Responsibility. Article IX is formulated in broad
terms: it covers “[d]isputes between the Contracting Parties relating to the
interpretation, application or fulfillment of the present Convention, including
thoserelatingtotheresponsibilityofaStateforgenocideorforanyoftheother
acts enumerated in article III”. Of course, the dispute must be one between
two Contracting Parties, and it must concern the obligations of those Parties
under the Convention. But such a dispute could arise between two States in a
case where the initial responsibility for genocide was that of a third State, or in
81Counter-Memorial, para. 280.
82 ICJ Reports 2008, p. 412, 520, para. 13.
Volume 7.indd 266 12/14/2010 2:40:25 PM 267
a case where (as in the example given in paragraph 7.10 above) the genocide
was committed prior to the entry into force of the Convention for that State.
Article IX does not say “including those relating to the responsibility of one
of those Contracting Parties for genocide”: the contrast between the phrases
“disputes between the Contracting Parties” and “the responsibility of a State
for genocide” is clear and must be taken to have been deliberate. Still less
does it specify that the genocidal acts should all have occurred after the entry
into force of the State in question.
7.72 It follows that a dispute over StateA’s succession to or assumption of
responsibility for genocide allegedly committed by its personnel while it was
in statu nascendi would fall withinArticle IX of the Convention.
SECTION III: SERBIA’S 1992 DECLARATIONASAN
ASSUMPTION OF RESPONSIBILITY FORACTS PRIOR TO
27APRIL1992
7.73 In the alternative, it is submitted that Serbia’s 1992 declaration was a
unilateral declaration binding it internationally. By virtue of that declaration
Serbia publicly manifested its will to assume the international rights and
obligations of the SFRY, as well as to continue its international personality. 83
It is useful to recall the clear and specific terms used by the FRY in its 1992
Declaration
“1. The Federal Republic of Yugoslavia, continuing the state,
international legal and political personality of the Socialist Federal
Republic of Yugoslavia, shall strictly abide by all the commitments
85
that the SFR of Yugoslavia assumed internationally.”
7.74 The official Note of the Permanent Mission of Yugoslavia to the
United Nations also affirmed that:
“Strictly respecting the continuity of the international personality of
Yugoslavia,theFederalRepublicofYugoslaviashallcontinuetofulfill
all the rights conferred to and obligations assumed by, the Socialist
86
Federal Republic of Yugoslavia in international relations…”
The Court noted with regard to this declaration that,
“This intention thus expressed by Yugoslavia to remain bound
83 ILCGuidingPrinciplesApplicabletoUnilateralDeclarationsofStatesCapableofCreating
Binding Obligations, Fifty eighth session of the International Law Commission, Yearbook of
the International Law Commission 2006, vol. II, Part Two, Principle 1.
84 Ibid ., Principle 7 setting out that, “A unilateral declaration entails obligations for the
formulating State only if it is stated in clear and specific terms.”
85
Joint Declaration of the SFRY Assembly, the National Assembly of the Republic of Serbia
and the Assembly of the Republic of Montenegro adopted on 27 April 1992, in UN Doc.
A/46/915, Ann. II (emphasis added).
86 UN Doc. A/46/915, Annex. I (emphasis added).
Volume 7.indd 267 12/14/2010 2:40:25 PM 268
by the international treaties to which the former Yugoslavia was
party was confirmed in an official Note of 27 April 1992 from the
Permanent Mission of Yugoslavia to the United Nations, addressed
to the Secretary-General. The Court observes, furthermore, that it
has not been contested that Yugoslavia was party to the Genocide
Convention.” 87
7.75 The Court has already upheld the “sui generis position which the FRY
found itself in” in the period until 2000. In 1996, in Bosnia and Herzegovina
v. Yugoslavia, the Court found that “Yugoslavia was bound by the provisions
of the Convention on the date of the filing of the Application in the present
89
case, namely on 20 March 1993” on the basis of SFRY’s ratification without
reservation of the Convention on 29 August 1950 and that the “intention
expressed by Yugoslavia to remain bound by the international treaties to
whichtheformerYugoslaviawaspartywasconfirmedinanofficialNoteof27
April 1992 from the Permanent Mission of Yugoslavia to the United Nations,
90
addressed to the Secretary-General.”
7.76 This sui generis situation, created by Yugoslavia’s 1992 declaration
remained unchanged at the time of the initiation of the proceedings at hand,
until the new declaration of “accession” it made in 2001. However the latter
can have no bearing upon the jurisdiction of the Court, in accordance with its
established jurisprudence, jurisdiction cannot be modified retroactively by the
91
occurrence of new facts. Indeed, in the Bosnian Genocide Case, the Court
found it unnecessary to assess the legal effects of Serbia’s notification of
accession to the Genocide Convention of 6 March 2001, as just like at present,
the institution of the proceedings pre-dated it. Moreover a withdrawal from
93
the Genocide Convention cannot have any retroactive effect.
7.77 It was not until GA Resolution 55/12 of 1 November 2000 when
87 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment,
I.C.J. Reports 1996 (II), p. 595, 610, para. 17
88 Ibid., citing I.C.J. Reports 2003, p. 31, para. 71.
89
90 Ibid., p. 610, para. 17.
ApplicationoftheConventiononthePreventionandPunishmentoftheCrime ofGenocide
(Bosna and Herzegovina v. Yugoslavia), Judgment of 26 February 2007, para. 121.
91 See e.g. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J.
Reports 1996 (II), p. 32, para. 95 quoting the Nottebohm Case (Liechtenstein v. Guatemala)
Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 12 and Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 12, 28, para. 36; see also to this effect Legality of Use of
Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports
2004 p. 314, para. 89.
92 Ibid., p. 612, para. 23.
93
J M Ruda, “Terminación y Suspensión de los Tratados”, in E G Bello and P Bola Ajibola
(eds), Essays in Honour of Judge Taslim Olawale Elias (Nijhoff 1992), p. 112.
Volume 7.indd 268 12/14/2010 2:40:25 PM 269
Yugoslavia renounced its claim of succession in favour of accession anew.
Treaty actions after this moment were listed with the Secretary-General as
depository under the designation “Serbia and Montenegro”. The uncertain-
ties surrounding the legal effect of this new declaration are reflected in the
objections raised by other members of the United Nations, e.g.by Sweden on
2 April 2002, noting that:
“The Government of Sweden regards the Federal Republic of
Yugoslavia as one successor state to the Socialist Federal Republic
of Yugoslavia and, as such, a Party to the Convention from the date
of the entering into force of the Convention for the Socialist Federal
Republic of Yugoslavia.”
7.78 Furthermore, Serbia’s breach is of a continuing character within
the meaning of Article 14 of the ILC Articles on State Responsibility as it
first failed to prevent and then to prosecute and punish the perpetrators of
the genocide, which took place on its territory as required by Article I of the
Genocide Convention, but also to co-operate with the competent international
tribunalhavingjurisdictionoverthempursuanttoArticleVI. Thesearguments
apply whatever the outcome on the other issues discussed in this Chapter.▯
SECTION IV: CONCLUSION
7.79 Just because a State is in a process of dissolution, this does not mean
that the situation is unregulated (legibus solutus) or that relevant actors are
unaccountable for egregious violations of international law, particularly of
jus cogens norms. 94That principle applies with at least equal force to issues
of responsibility for acts committed during the process in the period prior to
27 April 1992 – in which there emerged a de facto administration of Serbia
- as it does for applicable law issues. An interpretation that leaves a gap in
accountability for serious breaches of international law is one that is to be
avoided, for obvious reasons. This is all the more so in relation to the crime of
genocide, and also for the cooperative mechanisms reflected in the Genocide
Convention.
7.80 In conclusion, the International Court of Justice has jurisdiction
ratione temporis in respect of acts occurring prior to 27April 1992 to entertain
the present dispute in accordance withArticle IX of the Genocide Convention
and the acts in question are attributable to Serbia as a self-proclaimed
continuator of the personality of its predecessor or in the alternative, pursuant
to the customary rule codified in Article 10(2) of the ILC Articles on State
Responsibility for Internationally WrongfulActs.
94 See e.g. Accordance with International Law of the Unilateral Declaration of Independence
in respect of Kosovo, Advisory Opinion of 22 July 2010, para. 81.
Volume 7.indd 269 12/14/2010 2:40:25 PM 270
Volume 7.indd 270 12/14/2010 2:40:25 PM 271
CHAPTER 8
THE GENOCIDE CONVENTION
INTRODUCTION
8.1 This Chapter responds to the Respondent’s arguments on the legal
regime of the Genocide Convention as set out in Chapter 2 of the Counter-
Memorial, including the definition of the physical and mental elements which
form the crime of genocide. Since Croatia filed its Memorial the Court has
given judgment on the merits in the Bosnia case.
8.2 Section I addresses the mental and physical elements of the crime of
genocide, as set out inArticle II of the Genocide Convention. Section II deals
withtherelatedcrimescontainedwithinArticleIII(b)to(e)oftheConvention.
Section III addresses the obligations of the Respondent to prevent and punish
genocide pursuant to Article I of the Convention. Section IV responds to the
Respondent’s arguments on the nature of the specific intent (dolus specialis)
required to show that the crime of genocide has been committed: it shows that
the Respondent’s approach to proving specific intent is misguided and overly
narrow and is inconsistent with international practice and jurisprudence.
8.3 TheApplicant recognises that this case is exclusively concerned with
the crime of genocide and with the breach of the Respondent’s obligations
under the Genocide Convention. It accepts that the Court can only make
findings in relation to the obligations under the Convention and not any other
violations of international law that were committed by Serbia in the course of
its military campaign. This is not in issue between the parties.
8.4 The background to the Genocide Convention, its rationale and the
events leading to its adoption were set out in detail by the Applicant in the
Memorial. It comes as no surprise that the Respondent should have placed
heavy reliance on the Court’s 2007 judgment in the Bosnia case, noting that
thejudgmentisof“paramountimportancetothepresentcase”. Croatiaagrees
thattheCourt’s2007judgmentiscentraltothepresentproceedings.However,
the Respondent has manifestly failed to recognize that the facts of the two
cases are different, and that the evidence in the two cases is distinguishable.
The Republic of Croatia has set out a catalogue of prohibited acts carried out
againstCroats,fromwhichonlyoneconclusioncanbedrawn:theRespondent 4
has plainly breached its obligations under the Genocide Convention.
1 Memorial, para. 7.04.
2 Memorial, paras. 7.05-7.12.
3 Counter-Memorial, para. 32.
4
See Chapters 4 and 5 of the Memorial, and Chapters 5 and 6 of this Reply.
Volume 8.indd 271 12/14/2010 2:42:18 PM 272
8.5 In this chapter, Croatia reaffirms its interpretation of the obligations
under the Genocide Convention.TheApplicant is mindful of the Court’s 2007
judgment in the Bosnia case, which as will be shown below, clearly confirms
the approach taken by Croatia in the Memorial.
SECTION I: MENTALAND PHYSICALELEMENTS OFTHE
CRIME
(1) M e n t ael eMe n : M e n R e a(D o l ussp e c i i s
8.6 As set out in the Memorial, the crime of genocide comprises two
connected but distinct elements: the mental element (mens rea) and the
physical element (actus reus). In order to establish genocide has occurred
it is necessary to show that one of the five sets of acts enumerated in Article
II (a)-(e) was committed and that it was accompanied by “intent to destroy,
in whole or in part, a national, ethnical, racial or religious group, as such”.
This ‘genocidal intent’has been referred to by the Court in the Bosnia case as
specific intent (dolus specialis).6
8.7 It is established that genocidal intent may be ascertained by inference,
including by reference to evidence showing a relatively consistent pattern
of behaviour involving prohibited acts targeted at group protected under
the Convention. A close examination of the travaux préparatoires of the
Convention reveals that the drafters were conscious that it was unlikely that
a State would formally and publicly declare a plan from which it would
be possible to obtain documentary evidence proving “intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such”. The
8
Respondent accepts this point. The difference between the parties is on the
appreciation of the evidence and the facts, and the question of whether intent
can be inferred; this is addressed below in Section IV(2).
8.8 In addition to the general requirement of specific intent, which can be
inferred from a consistent and systematic pattern of behaviour, the Genocide
Conventionrequiresanumberofelementstobemet,asreflectedinthechapeau
toArticle II. The Convention requires that the perpetrator of genocide must be
shown to harbour an intent to “destroy, in whole or in part, a national, ethnical,
racial or religious group, as such”. In its Memorial, the Applicant outlined its
approach to the four elements to show that each of these has been satisfied in
relation to the acts committed by the Respondent. 9
5
6 Memorial, para. 7.25.
7 Bosnia, para. 187.
Memorial, para. 7.34. See also the Declaration of Judge Bennouna attached to the Court’s
Judgment in Bosnia, p. 362: “Indeed, it is rare for a State bluntly to proclaim its intent to
destroy, in whole or in part, an ethnical, cultural or religious group or to disclose knowledge
that such a crime was going to occur or to admit to having committed it.”
8 Counter-Memorial, para. 48.
9 Memorial, paras. 7.42-7.57.
Volume 8.indd 272 12/14/2010 2:42:18 PM 273
8.9 In relation to the establishment of an intent “to destroy”, Croatia
has argued that Article II is to be read as a whole. Subparagraphs (b) to (e)
make it clear that the requirements of the destruction of a group cannot be
equated simply with the physical destruction of members of the group, but
rather the group as an entity. This interpretation has not been contested by the
Respondent. It is clear from the evidence put forward in Chapters 5 and 6 of
this Reply that the actions of the Respondent were committed with the intent
to destroy Croats as an entity. This is addressed in more detail in Chapter 9.
8.10 The second necessary element - establishing “in whole or in part”
- is also met in this case. Whereas the destruction of a group “in whole” is
relatively straightforward, the Court in the 2007 Bosnia judgment made
10
important findings with respect to the destruction of a group “in part”, as
outlined by the Respondent in the Counter-Memorial. The Court held that
three factors are relevant to the determination with respect to a “part” of the
“group” for the purposes of Article II of the Convention. The first of these
is that there must be an intent to destroy at least “a substantial part of the
particular group” (emphasis added). 12 Secondly, the Court accepted that a
genocide will have occurred “where the intent is to destroy the group within
a geographically limited area.” The third factor relied upon by the Court
is “qualitative rather than quantative”, and it requires an evaluation of the
14
prominence of the targeted portion in relation to the entire group. With
respect to these three factors, the Court emphasised that the first of these - the
15
substantiality requirement - “is an essential starting point.”
8.11 TheApplicant submits that the evidence set out in Chapters 4 and 5 of
the Memorial and Chapters 5 and 6 of this Reply clearly establish an intent, on
the behalf of the Respondent, to destroy the whole of the Croat population in
the areas referred to in those chapters: in Eastern Slavonia, Western Slavonia,
Banovina, Kordun and Lika and Dalmatia. The great number of examples of
prohibited acts carried out in these areas clearly and irrefutably demonstrate
the existence of an intent to destroy the Croat population as a whole in those
areas. This is addressed in further detail in Chapter 9.
8.12 In relation to the third element – “a national, ethnical, racial or
religious group” – the Court in Bosnia was critical of the negative approach in
the definition of a “national, ethnical, racial or religious group”; it adopted the
use of a positive definition based on the presence of relevant characteristics.
As pointed out by the Respondent in the Counter-Memorial, Croatia defines
the protected group in the present case in positive terms (Croats as a national
andethnicalgroup):asregardsmembershipofthatgroup,Croatiahassatisfied
10
11 Bosnia, paras. 198-200.
Counter-Memorial, paras. 64-66.
12 Bosnia, para. 198.
13 Ibid., para. 199.
14 Ibid., para. 200.
15 Ibid.; see also para. 201.
Volume 8.indd 273 12/14/2010 2:42:18 PM 274
both the subjective and objective criteria (as well as a combination of the
two). Accordingly there is no dispute between the parties on this issue: it is
not disputed that the Croats against whom genocidal acts were committed
by or on behalf of the Respondent formed a separate and clearly identifiable
national and ethnical group, in law and in fact.
8.13 Finally, as to the final element – the words “as such” – these were
recognised by the C16rt in Bosnia to emphasise an “intent to destroy the
protected group.” This is understood to mean that the specific intent in
Article II requires that the acts in question were directed against members of
the protected group as such: they were attacked because of their nationality,
ethnicity, race or religion. The words “as such” are there located with the
intent to highlight the discriminatory and targeted nature that is inherent in
the crime of genocide. The Respondent has not advanced any arguments in
the Counter-Memorial to counter Croatia’s arguments and the evidence that
the genocidal acts that were perpetrated against Croats were carried out on
the basis of their identification as members of a distinct ethnical and national
group as such.
(2) P h y s i ell eMe n:a c t uRse u s
8.14 In addition to the mental element, the crime of genocide also
encompasses a physical element. Article II of the Genocide Convention
lists five sets of acts, the commission of any one of which will amount to
genocide where it has been accompanied by the requisite mental element. In
its Memorial, Croatia set out its understanding of each of these sets of acts,
and its approach is entirely consistent with the findings of the Court in the
2007 Bosnia judgment.
(a) “Killing Members of the Group”: Article II(a)
8.15 ‘Killing members of the group’ as set out in Ar17cle II(a) has been
defined in the case-law of the ICTY and ICTR. In Akayesu, the Trial
Chamber of the ICTR found that killing in the context of Article II(a) could
be broken down into two elements: the victim must have been killed, and the
death must have resulted from an unlawful act or omission of the accused or a
subordinate. The Respondent adds to these elements the finding in Krstić to
the effect that the killing needs to be accompanied by an “intention to kill or
cause serious bodily harm which he/she should reasonably have known might
lead to death”.19
8.16 The Respondent’s definition of the physical elements in relation to
16
17Ibid., para. 187.
Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, para. 588; Krstić,
ICTY, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 485.
18Memorial, para. 7.59.
19 Prosecutor v. Krstić, ICTY, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para.
485.
Volume 8.indd 274 12/14/2010 2:42:18 PM 275
ArticleII(a),(b)and(c)alsomakesreferencetotheICCElementsofCrimes. 20
For example, in relation to “killing members of the group” the Respondent
argues that “four further requirements” need to be met: 21
“1. The perpetrator killed one or more persons.
2. Such person or persons belonged to a particular national, ethnical,
racial or religious group.
3. The perpetrator intended to destroy, in whole or in part, that national,
ethnical, racial or religious group.
4. The conduct took place in the context of a manifest pattern of similar
conduct directed against that group or was conduct that could itself
22
affect such destruction.”
8.17 Croatia does not dispute that these four elements need to be met in
order for a finding of genocide to be made. However, the reference to “four
furtherrequirements”bytheRespondentintentionallyconfusestheissueofthe
actus reus and blurs the distinction between the physical and mental elements.
It is clear, for example, that forArticle II(a) of the Genocide Convention to be
met (the physical element), only the first and second of the four requirements
quoted above from the ICC Elements needs to be satisfied. The other two
requirements - namely that the perpetrator intended to destroy the group in
whole or in part and that the conduct took place in the context of a pattern
of similar conduct or was conduct which itself affected the destruction – are
more accurately to be treated as forming the mental element (mens rea) of
the crime of genocide. Although there is a close relationship between the
mental and physical elements, in order to meet the requirements of Article
II(a) it need only be established that one or more members of the protected
group was killed intentionally. The same point may be made in relation to
the Respondent’s reliance on the ICC Elements of Crimes in its definition of
Article II(b) and (c). 23
8.18 On this point, as has been addressed in Chapters 5 and 6, the
Respondent has not disputed the fact that Croats were intentionally killed
during the relevant period.
(b) “Causing serious bodily or mental harm to members of group”: Article
II(b)
8.19 Croatia’s Memorial set out the general finding that “mental harm
means more than minor and temporary impairment, but does not need to be
20 Counter-Memorial, paras. 77, 80 and 83.
21 Counter-Memorial, para. 77
22 ICC, Elements of Crimes, ICC-ASP/1/3, p. 2.
23 Counter-Memorial, paras. 80 and 83.
Volume 8.indd 275 12/14/2010 2:42:18 PM 276
24
permanent and irremediable”. This is consistent with the findings of the
ICTY Trial Chamber in Krstić, as set out by the Respondent in the Counter-
25
Memorial.
8.20 The Court in the Bosnia case endorsed the views of the ICTR Trial
Chamber in Akayesu to the effect that:
“[i[ndeed, rape and sexual violence certainly constitute infliction of
serious bodily and mental harm on the victims and are even, according
to the Chamber, one of the worst ways of inflicting harm on the victim
as he or she suffers both bodily and mental harm”. 26
The Court also cited the views of the ICTYTrial Chamber in Stakić:
“[c]ausing ‘serious bodily and mental harm’ in subparagraph (b) [of
Article 4 (2) of the Statute of the ICTY] is understood to mean, inter
alia, acts of torture, inhumane or degrading treatment, sexual violence
including rape, interrogations combined with beatings, threats of death,
and harm that damages health or causes disfigurement or injury. The
harm inflicted need not be permanent and irremediable.” 27
8.21 The endorsement by the Court of this broad interpretation of Article
II(b) brings within the ambit of the Convention a significant number of the
prohibited acts committed by Serbia against Croats. The Respondent has not
disputed the fact that Croats were subjected to serious bodily and mental harm
within the mean ofArticle II(b) during the relevant period.
(c) “Deliberately inflicting on the group conditions of life designed
to bring about its physical destruction in whole or in part”: Article II(c)
8.22 In its 2007 judgment the Court addressed this third group of
prohibited acts under the Convention. There is no disagreement between the
parties that acts falling under Article II(c) need to be accompanied by the
necessary specific intent (dolus specialis). However, the Applicant reiterates
the point that the actual physical destruction of the group does not need to
have occurred, rather the conditions inflicted need to be calculated to bring
about the destruction. The Respondent has acknowledged that “systematic
expulsion from homes” can, according to the Court in its 2007 judgment, also
fall underArticle II(c). 29
24 Memorial, para. 7.62.
25 Counter-Memorial, para. 79.
26 Bosnia, para. 300, (citing Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 2 September
1998, para. 731).
27
Ibid ., (citing Prosecutor v. Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003,
para. 516).
28 Memorial, para. 7.67.
29 Counter-Memorial, para. 84.
Volume 8.indd 276 12/14/2010 2:42:18 PM 277
8.23 TheApplicant has provided extensive evidence of the many instances
of direct and targeted shelling and the intentional destruction of objects of
cultural and religious importance in Croatia for which the Respondent bears
30
responsibility. The Respondent does not dispute that “some of the Croatian
cultural and religious monuments were looted, damaged and, in some cases,
31
destroyed during the war.” However, the Respondent’s response to these
specific allegations is wholly inadequate, simply stating that the “destruction
of historical, cultural or religious property can never be considered as one
32
of the genocidal acts within the meaning of the Genocide Convention.” To
support this contention, the Respondent invokes paragraph 344 of the Court’s
2007 judgment: it manifestly fails to appreciate what the Court said and the
33
implications of its approach on this point. The Court ruled:
“However, in the Court’s view, the destruction of historical, cultural
and religious heritage cannot be considered to constitute the deliberate
infliction of conditions of life calculated to bring about the physical
destruction of the group. Although such destruction may be highly
significant inasmuch as it is directed to the elimination of all traces of
the cultural or religious presence of a group, and contrary to other legal
norms, it does not fall within the categories of acts of genocide set out
inArticle II of the Convention.” 34
The Court also endorsed the finding of the ICTYin Krstić, namely that “where
thereisaphysicalorbiologicaldestructionthereareoftensimultaneousattacks
on the cultural and religious property and symbols of the targeted group as
well, attacks which may legitimately be considered as evidence of an intent
to physically destroy the group”. The Court was clearly mindful of the fact
that the destruction of cultural and religious heritage, as occurred in the case
of Croatia, can be of significance when viewed in the context of the wider
prohibited acts taking place.
8.24 The Respondent has not disputed the fact that it deliberately inflicted
conditions of life designed to bring about the physical destruction of Croats as
a group in whole or in part within the meaning ofArticle II(c).
30 Memorial, paras. 4.63, 4.92, 4.104, 4.150, 5.12, 5.76, 5.135, 5.155, 5.195, 5.201, 5.235-237,
5.241; see also Chapters 5 and 6, of this Reply, especially the findings of the ICTY referred to
31 paras. 6.33, 6.83 and 6.108.
32 Counter-Memorial, para. 978
Ibid..
33 Counter-Memorial, p. 309, footnote 840.
34 Bosnia, para. 344.
35 Prosecutor v. Krstić, ICTY, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 580
(cited in the Court’s 2007 judgment at para. 344).
Volume 8.indd 277 12/14/2010 2:42:18 PM 278
(d) “Imposing measures intended to prevent births within the group”: Article
II(d)
8.25 The Respondent does not dispute the Applicant’s understanding of
measuresfallingunderArticleII(d)oftheConvention.Rather,theRespondent
challenges the Applicant’s assertion that there was a ‘systematic perpetration
against Croats of rape and other sex crimes’, and that these acts fall clearly
36
within Article II(d) of the Convention’. The Respondent disputes that many
of the alleged acts actually took place, and it asserts that, in any case, the
described acts of random sexual violence cannot fall within the meaning of
‘measures intended to prevent births within the group’ in Article II(d) of the
Genocide Convention.”
(e) “Forcibly Transferring Children of the Group to Another Group: Article
II(e)
8.26 This category of acts is not relevant to the facts of the present case and
the parties are not in dispute as to its non-application.
SECTION II: CONSPIRACY, INCITEMENT,ATTEMPTAND
COMPLICITY
8.27 Article II of the Genocide Convention is supplemented byArticle III,
providing for the punishment of four other categories of acts that may not in
themselves amount to genocide. These acts are also relevant to the present
case. The Respondent has pointed to the findings of Court in Bosnia on the
relationship between the acts enumerated inArticle III (b) – (e) and the direct
act genocide itself underArticle III(a). The reasoning employed by the Court
is that it is “unnecessary” to consider the acts listed inArticle III (b) to (e) if it
has already made a finding attributing state responsibility for genocide under
Article III (a). Croatia recognises that this may be a logical argument – there
would indeed be little point in assessing whether a State is in violation of its
obligations underArticle III, subparagraphs (b), (c), (d) and (e) (conspiracy to
commitgenocide,incitementtocommitgenocide,attempttocommitgenocide
and complicity in genocide) were that state held to be directly responsible for
acts of genocide underArticle III(a). However, if the Court rules – as Croatia
says its must – that the Respondent is responsible for acts of genocide under
Article III(a), then it follows that the Respondent may also be responsible for
acts of individuals under its command or control who committed one or more
of the offences enumerated inArticle III (b) to (e).
8.28 In Bosnia the Court recognised that the concepts enumerated in
Article III(b) to (e) of the Genocide Convention make reference to criminal
36
Counter-Memorial, para. 86.
37 Counter-Memorial, para. 90; and Bosnia, para. 380.
Volume 8.indd 278 12/14/2010 2:42:18 PM 279
law (complicity in particular) but that in light of the object and purpose of the
Convention these obligations are also applicable to the State Parties to the
Convention and may give rise to their responsibility. 38
(1) c o n PiRa c yt oc oM Mi tg e n o cdieRt i c liii(b)
8.29 In the Bosnia judgment, the Court did not specifically define
conspiracy to commit genocide. As set out in the Memorial, Croatia submits
that a conspiracy under Article III(b) of the Convention will exist where two
or more persons have agreed upon a common plan to commit genocide, with
39
the same specific intent as required for genocide itself. The Respondent does
not disagree, relying on the findings of the ICTR in Musema to the effect that
the mens rea requirement for conspiracy is the same as that required for the
crime of genocide. 40
8.30 The distinction that existed at the time of drafting the Convention
between the common law and Romano-Germanic legal systems as to the
nature of complicity are also highlighted in the Memorial and Counter-
Memorial. The Applicant has shown that it would appear from the travaux
preparatoires of the Genocide Convention and the judgment in Musema that
the common law approach to the crime of conspiracy as an inchoate offence
has prevailed (so that conspiracy to commit genocide may be committed
regardless of whether a genocide in fact occurred). Croatia considers that
a conspiracy to commit genocide will only be relevant in respect of those
circumstances where, at a particular location or in respect of particular acts,
a genocide has not been committed. This is the case also with respect to a
finding of State responsibility. In the event that the Court was to rule that the
Respondent was in breach of its obligations not to commit genocide under
Article III(a) of the Convention – as the Applicant has invited the Court to
do – it would be unnecessary for the Court to go on to consider the question of
state responsibility on the basis that individual Serbian leaders (for whom the
FRY bears international responsibility) were party to a conspiracy to commit
genocide.
8.31 In the present case, as shown by the facts set out in Chapters 5 and
6, genocide was committed against the Croatian populations concerned. In
such a case, it would be of little logical and practical effect to also find the
RespondentresponsibleofconspiracytocommitgenocideunderArticleIII(b).
Moreover, if the Court reaches a finding of direct State responsibility for the
perpetration of genocide, it is not necessary to consider the alternative basis
38 Ibid., para. 167.
39 Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, para. 559. See also
40morial, para. 7.76.
Prosecutor v. Musema, ICTR-960130A, Judgment and Sentence, 27 January 2000, para.
191; see also Counter-Memorial para. 92.
41 Memorial, para. 7.77.
42 Counter-Memorial, para. 95.
Volume 8.indd 279 12/14/2010 2:42:19 PM 280
for establishing State responsibility, namely that individual Serbian leaders
were responsible for conspiracy to commit genocide and that the Respondent
is internationally responsible for these acts.
(2) d iRe c ta n dPu b i n c iee n t o coM Mi tg e n o c :ae Rt i ciii(c)
8.32 Incitement is also an inchoate offence, and no actual genocide needs
to have occurred for a finding of direct and public incitement to be made. The
parties agree as to the definition of the mens rea and actus reus elements of
this offence. Simply put, it requires “directly provoking the perpetrator(s) to
commit genocide…”, whilst sharing the same specific intent to destroy the
protected group, in whole or in part, as the principal perpetrator.43
(3)a t t eM Pt t oc oM Mi tg e n :deRt i c liiid)
8.33 There is no disagreement between the parties as to the definitional
aspects of this provision. Unlike Croatia, Bosnia did not make a claim in
relation to attempt to commit genocide in its case before the Court against the
FRY.
(4) coM Pl i c iin g e n o cdeRt i c liiie)
8.34 Complicity in genocide involves the planning, ordering or otherwise
aiding and abetting in the planning, preparation or execution of the crime.
The Respondent has pointed to the fact that unlike the other three inchoate
offences underArticle III (b), (c) and (d), complicity in genocide requires that
genocide actually be committed (as was the case here).
8.35 In the Bosnia judgment, the Court held that complicity includes the
“provisionofmeanstoenableorfacilitatethecommissionofthecrime”. The 44
CourtalsomadereferencetoArticle16oftheInternationalLawCommission’s
(ILC) Articles on State Responsibility, concerning “[a]id or assistance in the
commission of an internationally wrongful act”. Although recognizing that it
was not directly applicable “because it concerns a situation characterized by
a relationship between two States”, the Court saw no reason to make any
distinction of substance betweenArticle III(e) of the Convention and “aid and
assistance” in the context of Article 16 of ILC Articles. Article 16 of the ILC
Articles on State Responsibility provides:
“Aid or assistance in the commission of an internationally wrongful
act
A State which aids or assists another state in the commission of an
internationally wrongful act by the latter is internationally responsible
for doing so if:
43
Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, para. 557; see Counter-
44morial, para. 98.
Bosnia, para. 419.
45 Ibid., para. 420.
Volume 8.indd 280 12/14/2010 2:42:19 PM 281
That State does so with the knowledge of the circumstances of the
internationally wrongful act; and
The act would be internationally wrongful if committed by that
State.”
8.36 In relation to the mental element required to establish complicity,
Croatia has referred to a number of authorities that support the contention
that a person who aids and abets genocide does not need to meet the same
mens rea requirement as the principal offender. The Memorial notes that the
real test “is whether the accused had knowledge of the principal offender’s
intent”.47In Bosnia, the Court did not explicitly rule on this issue, finding only
that:
“thequestionariseswhethercomplicitypresupposesthattheaccomplice
shares the specific intent (dolus specialis) of the principal perpetrator.
Butwhateverthereplytothisquestion,thereisnodoubtthattheconduct
of an organ or a person furnishing aid or assistance to a perpetrator
of the crime of genocide cannot be treated as complicit in genocide
unless at least that organ or person acted knowingly, that is to say,
in particular, was aware of the specific intent (dolus specialis) of the
principal perpetrator.” 48
Judges Keith and Bennouna both addressed this issue in Separate Declarations
appendedtothe2007judgment. JudgeKeithtooktheviewthatanaccomplice
must have knowledge of the genocidal intent of the principle perpetrator, but
does not need to share that intent. Judge Bennouna shared this view, but added
that that the Court “[left] open the question whether an accomplice must share
49
the specific intent (dolus specialis) of the principal perpetrator”
8.37 The Applicant submits that its approach to complicity as set out in
the Memorial therefore remains correct: the person who aids and abets must
have provided the principal offender with aid and assistance in full knowledge
of the genocidal intent of the principal. This approach is not disputed by the
Respondent. 50
SECTION III: THE OBLIGATION TO PREVENTAND PUNISH
8.38 The obligation of State Parties to prevent and punish the crime of
genocide is set out in Article I of the Convention and elaborated on in most
of the substantive articles of the Convention (Articles IV, V, VI, VII and
VIII). The Court ruled in Bosnia that despite clear links between the duty to
46 Memorial, paras. 7.93-7.95.
47
48 Memorial, para. 7.94.
49 Bosnia, para. 421.
See p. 362 of the Declaration of Judge Bennouna in Bosnia.
50 Counter-Memorial, para. 113.
Volume 8.indd 281 12/14/2010 2:42:19 PM 282
prevent genocide and the duty to punish, these are two distinct but connected
obligations. 51
(1) t h eo b l i g a tonP Re v e ng e n o c i d e
8.39 The Obligation to prevent genocide lies at the heart of the Convention
and is set out in Articles I and VIII. The obligation requires that a State take
positive steps to ensure that those within its jurisdiction and control do not
commit genocide.
8.40 In the Bosnia judgment the Court affirmed that the obligation to
prevent has its own separate legal existence. According to the Court, the
obligation:
“is both normative and compelling. It is not merged in the duty to
punish, nor can it be regarded as simply a component of that duty. It
has its own scope, which extends beyond the particular case envisaged
in Article VIII, namely the reference to the competent organs of the
United Nations, for them to take such action as they deem appropriate.
Even if and when these organ have been called upon, this does not mean
that the States parties to the Convention are relieved of the obligation to
take such action as they can to prevent genocide from occurring, while
respecting the United Nations Charter and any decisions that may have
been taken by its competent organs” 52
8.41 Regardless of how Serbia’s military campaign may be characterised,
its obligation to prevent genocide existed as a separate and distinct legal
obligation.As described in Chapter 7, the Genocide Convention applied at all
material times to the geographic areas where genocidal acts occurred and in
respect of all persons who were the target of such acts.As the Court observed
in 1996 and again in 2008, there is no express limitation ratione temporis in
53
the Genocide Convention. For the reasons set out in Chapter 7, theApplicant
is internationally responsible for violations of the Genocide Convention
throughout the period in question.
8.42 Moreover,inits2007judgmenttheCourtmadeclearthattheobligation
is one of conduct rather than result. The obligation cannot be taken to mean
that the State in question must succeed in preventing genocide; rather, it must
have taken all reasonable means at its disposal to prevent genocide as far a
possible. The responsibility of the State is incurred
“if the State manifestly failed to take all measures to prevent genocide
51
52 Bosnia, para. 425.
Ibid., para. 427.
53 Case Concerning the Application of the Convention on the Prevention and Punishment of
theCrimeofGenocide(Croatiav.Serbia),PreliminaryObjections,Judgmentof18November
2008, ICJ Reports 2008 pp. 412, 428, para. 123.
54 Ibid., para 430.
Volume 8.indd 282 12/14/2010 2:42:19 PM 283
which were within its power, and which might have contributed to
55
preventing genocide.”
8.43 As described in Chapters 5, 6 and 9 of this Reply, Croatia submits that
thisstandardisplainlymetinthepresentcase.TheCourtidentifiedfourfactors
that are relevant to setting the parameters for discharging the obligation to
prevent genocide. The first is the capacity of the state to influence effectively
the actions of persons likely to commit genocide, including by reference to
factors of geographical proximity and the strength of political and other links.
This capacity of influence is to be assessed by legal criteria in light of the fact
56
that a State can only act within the limits of international law. Second, it is
irrelevant for a State to show that, even if it had employed all the means at
its disposal, it would not have succeeded in preventing genocide. Third, the
obligation to prevent genocide requires as a prerequisite that genocide was in
fact committed. This does not mean however that the obligation only arises at
the time when the genocide commences: as noted by the Court, “that would
be absurd, since the whole point of the obligation is to prevent, or attempt
to prevent, the occurrence of the act.” 57Finally, the Court drew a distinction
between the obligation to prevent and complicity in genocide: the latter
requiring positive action (it results from commission) whereas the former
results from a mere failure to act in order to prevent genocide (it results from
an omission). Croatia submits, as set out in Chapter 9, that these conditions
are met in the present case.
8.44 As to the mental element required, the Court held that a State can
be responsible for a failure to prevent genocide even where it had no certain
knowledge that genocide was about to be committed or was under way:
“it is enough that the State was aware, or should normally have
been aware, of the serious danger that acts of genocide would be
59
committed.”
On the facts of that case, the Court concluded that the FRY had breached its
obligation under the Genocide Convention to prevent genocide with respect
to the events in Srebenica:
“In view of their undeniable influence and of the information, voicing
serious concern, in their possession, the Yugoslav federal authorities
should, in the view of the Court, have made the best efforts within their
power to try and prevent the tragic events taking shape, whose scale,
though it could not have been foreseen with certainty, might at least
have been surmised. The FRY leadership, and President Milošević
above all, were fully aware of the climate of deep-seated hatred which
reigned between the Bosnian Serbs and Muslims in the Srebenica
55 Ibid..
56 Ibid..
57
58 Ibid., para. 431.
59 Ibid., para. 432.
Ibid..
Volume 8.indd 283 12/14/2010 2:42:19 PM 284
region. As the Court has noted in paragraph 423 above, it has not
been shown that the decision to eliminate physically the whole of the
adult population of the Muslin community of Srebenica was brought
to the attention of the Belgrade authorities. Nevertheless, given all the
international concern about what looked likely to happen at Srebenica,
given Milošević’s own observations to Mladić, which made it clear
that the dangers were known and that these dangers seemed to be of
an order that could suggest intent to commit genocide, unless brought
under control, it must have been clear that there was a serious risk of
genocide in Srebenica. Yet the Respondent has not shown that it took
anyinitiativetopreventwhathappened,oranyactiononitsparttoavert
the atrocities which were committed. It must therefore be concluded
that the organs of the Respondent did nothing to prevent the Srebenica
massacres, claiming that they were powerless to do so, which hardly
tallies with their known influence over theVRS.As indicated above, for
a State to be held responsible for breaching its obligation of prevention,
it does not need to be proved that the State concerned definitely had the
power to prevent genocide; it is sufficient that it has the means to do so
60
and that it manifestly refrained from using them.”
(2) th eo b l i g a toonPu n i sg e n o c i d e
8.45 The Genocide Convention also requires States to punish persons
committing genocide, as set out in Article I, IV, V and VI. This obligation
extends both to private individuals and public individuals. 61
8.46 In its Memorial the Republic of Croatia set out its claim that:
“Although the Convention does not provide for universal jurisdiction in
the modern sense, it is apparent that States are not barred from trying
their own nationals for acts committed outside the territorial State, and
that in light of the provisions ofArticle IVof the Convention, they must
do so.” 62
In the Bosnia judgment the Court ruled that “Article VI only obliges the
ContractingPartiestoinstituteandexerciseterritorialcriminaljurisdiction….” 63
However, the Court proceeded to point out thatArticle VI obliges Contracting
Parties to co-operate with the “international penal tribunal” referred to in that
provision. The Court held that the ICTY constitutes an “international penal
64
tribunal”withinthemeaningofArticleVI. OnthefactsintheBosniacase,the
Court held that there was evidence that the FRY’s intelligence services knew
60 the whereabouts of Mladić, “but refrained from informing the authorities
Ibid., para. 438.
61 Article IV of the Genocide Convention reads: “Persons committing genocide or any of
the other acts enumerated in article III shall be punished, whether they are constitutionally
responsible rulers, public officials or private individuals.”
62 Memorial, para. 7.101.
63 Bosnia, para. 442.
64
Ibid., para. 445.
Volume 8.indd 284 12/14/2010 2:42:19 PM 285
competent to order his arrest because certain members of those services
had allegedly remained loyal to the fugitive.” As described in Chapter 9 at
paragraphs 9.90-94 there has plainly been a failure to punish acts amounting
to genocide for which the Respondent is responsible.
SECTION IV: THE RESPONDENT’SAPPROACH UNDER THE
GENOCIDE CONVENTION
(1) th eR e sPo n d estu n des t a n d i nogft h en Re o fsPecific i n t e n t
8.47 The Respondent has sought to characterise the nature of the specific
intent (dolus specialis) partly on the basis of a comparison of the crime of
genocide with other international crimes, such as that of extermination: In so
doing it has relied on the ILC to the effect that:
“[e]xtermination is a crime which by its very nature is directed against
a group of individuals. In addition, the act used to carry out the offence
of extermination involves an element of mass destruction which is not
required for murder. In this regard, extermination is closely related to
the crime of genocide, in that both crimes are directed against a large
number of victims. However, the crime of extermination would apply
to situations that differ from those covered by the crime of genocide.
Extermination covers situations in which a group of individuals who
do not share any common characteristics are killed. It also applies to
situations in which some members of a group are killed while others are
66
spared.” (emphasis added).
The Respondent also quoted from Vasiljević:
“ThisTrial Chamber concludes from the material which it has reviewed
that criminal responsibility for ‘extermination’ only attaches to those
individuals responsible for a large number of deaths, even if their
part therein was remote or indirect. Responsibility for one or for a
limited number of such killings is insufficient. The Trial Chamber also
concludes that the act of extermination must be collective in nature
rather than directed towards singled out individuals. However, contrary
to genocide the offender need not have intended to destroy the group or
part of the group to which the victims belong.” (emphasis added) 67
8.48 References to the crime of extermination as set out above are
misleading. The Respondent appears to be alluding to the fact that both
extermination and genocide require “mass destruction” and “a large number
65 Ibid., para. 448.
66 Counter-Memorial, para. 44.
67 Counter-Memorial, para. 44 (citing Prosecutor v. Vasiljević, IT-98-32-T, Trial Chamber
Judgment, 29 November 2002, para. 227).
Volume 8.indd 285 12/14/2010 2:42:19 PM 286
of killings”. Although both these often occur as a direct result of a military
campaign in which genocide has been committed, nowhere in the definition of
genocideassetoutintheConventionaretheserequirementsstated.Thenature
of specific intent required is clearly set out in the Memorial: simply that the
“perpetrator clearly seeks to produce the acts charged”. 68 The Perpetrator must
intend, in the words of Article II, “to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such”. The Court in Bosnia was equally
clear: “[t]he additional intent must also be established and is defined very
69
precisely.” This confirms the approach adopted by Croatia in its Memorial.
(2) t h eR e sPo n d e ’taP P o a c ht oP Ro v i nsPecific i n t e n t
8.49 The Genocide Convention is silent as to the manner in which the
specific intent required to establish the crime of genocide is to be proved.
The practice of international courts and tribunals has addressed these issues
and affirmed that genocidal intent may be inferred from the existence of a set
of facts, including a pattern of consistent behaviour. The Respondent agrees
with Croatia that “the existence of a plan or policy to commit genocide is not
70
a formal requirement of the crime of genocide”. The practice of adducing
“intent” is set out in detail in Croatia’s Memorial at paragraphs 7.33 to 7.41.
TheApplicant’s assertion in the Memorial is based on authoritative statements
71
both at the ICTY (Karadžić and Mladić) and ICTR (Akayesu, Kayeshima
and Ruzindana), this approach has also been supported in Jelisić (although
the defendant was acquitted of genocide, the Chamber was willing to accept
an inferential approach to proving “intent”). 73
74
8.50 More recently in Gacumbitsi, the ICTRAppeal Chamber held:
“By its nature, intent is not usually susceptible to direct proof. Only the
accused himself has first-hand knowledge of his own mental state, and
he is unlikely to testify to his own genocidal intent. Intent thus must be
75
inferred.”
In Rutaganda, the ICTRAppeal Chamber considered that:
“TheAppellant contends that the standard applied by theTrial Chamber
implies that it was not necessary to prove dolus specialis. This
68
Memorial, para. 7.31 (citing Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 2 September
1998, para. 497.
69 Bosnia, para. 187.
70 Counter-Memorial, para. 48.
71 Prosecutorv.Akayesu,ICTR-96-4-T,Judgment,2September1998;Prosecutorv.Karadžić;
Prosecutor v. Mladić, Consideration of the Indictment within the Framework of Rule 61 of the
Rules of Procedure and Evidence.
72 Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber Judgment, May 21,
1999.
73 Prosecutor v. Jelisić, ICTY, Trial Chamber Judgment, 14 December, 1999.
74 Prosecutor v. Gacumbitsi, ICTR-2001-64-A, Judgment, 7 July 2006.
75
Ibid., para. 40.
Volume 8.indd 286 12/14/2010 2:42:19 PM 287
contention is entirely unfounded. According to the principles recalled
earlier, the standard applied in paragraph 398 of the Trial Judgment is
in keeping with the generally accepted practice of the ad hoc Tribunals.
TheAppeals Chambers of the International Tribunal and the ICTY also
confirmed that in the absence of explicit, direct evidence, specific intent
may be inferred from other facts, such as the general context and the
perpetration of other acts systematically directed against a given group.
Such an approach does not imply that the guilt of an accused may be
inferred only from his affiliation with a ‘guilty organisation’” 76
8.51 The Respondent accepts the implausibility of a State formally and
publicly putting into place a plan with the stated intention to ‘destroy’ in
whole or in part a group which falls to be protected under the terms of the
Convention. 77Yet, at the same time, and in face of overwhelming international
practice to the contrary, the Respondent now argues that genocidal intent
cannot be inferred from “a relatively consistent pattern of behaviour involving
the prohibited acts and targeted at a protected group”. This contention is
based on a flawed and selective reading of authorities. The first of these is
Stakić:
“The Trial Chamber has reviewed its factual findings in Part II of this
Judgment and a comprehensive pattern of atrocities against Muslims
in Prijedor municipality in 1992 emerges that has been proved beyond
reasonable doubt. However, in order to prove Dr. Stakić’s involvement
in the commission of these acts as co-perpetrator of genocide, the Trial
Chamber must be satisfied that he had the requisite intent.Thus, the key
and primary question that falls to be considered by the Trial Chamber
is whether or not Dr. Stakić possessed the dolus specialis for genocide,
this dolus specialis being the core element of the crime.” 79
8.52 The Respondent points out that Dr. Stakić was acquitted of genocide.
However, the Trial Chamber continued:
“In its Decision on 98 bis Motion to Acquit, the Trial Chamber
concludedthatonthebasisoftheevidencepresentedbytheprosecution,
a reasonable Trial Chamber “could conclude that Dr. Stakić shared
the plans to create a unified Serbian state by destroying other ethnic
groups”. Having heard all the evidence, the Trial Chamber finds that it
has not been provided with the necessary insight into the state of mind
of alleged perpetrators acting on a higher level in the political structure
than Dr. Stakić to enable it to draw inference that those perpetrators had
76 Prosecutor v. Georges Rutaganda , ICTR-96-3, Appeal Chamber Judgment 26 May, 2003,
para. 528.
77 Counter-Memorial, para. 48.
78 Memorial, para. 7.33.
79 Prosecutor v. Stakić, IT-97-24-T,Trial Chamber Judgment, 31 July 2003, para. 546 (cited
in Counter-Memorial, para. 51).
Volume 8.indd 287 12/14/2010 2:42:19 PM 288
the specific genocidal intent. As a consequence, the Trial Chamber is
unable to draw any inference from the vertical structure that Dr. Stakić
shared the intent.” (emphasis in the original) 80
8.53 It is clear, therefore, that that the Trial Chamber did not conclude
that genocidal “intent” cannot, in principle, be inferred from the facts. The
judgment stands only for the proposition that in that case it had not been
provided with the necessary evidence in order to allow it to take an inferential
approach. The Respondent also relies on this finding in Brđanin:
“While the general a widespread nature of the atrocities committed is
evidence of a campaign of persecutions, the Trial Chamber holds that,
in the circumstances of this case, it is not possible to conclude from it
that the specific intent for the crime of genocide in satisfied.” 81
8.54 Again,theRespondentpointsoutthatRadoslavBrđaninwasacquitted
of genocide. But once again it has mischaracterized the Trial Chamber’s
reasoning. The Tribunal continued:
“Although the factors raised by the Prosecution have been examined
on an individual basis, the Trial Chamber finds that, even if they were
taken together, they do not allow the Trial Chamber to legitimately
draw the inference that the underlying offences were committed with
the specific intent required for the crime of genocide. On the basis of
the evidence presented in this case, the Trial Chamber has not found
beyond reasonable doubt that genocide was committed in the relevant
ARK municipalities, inApril to December 1992.” 82
8.55 The same argument is applicable: theTrial Chamber is not stating that
genocidal “intent” cannot legitimately be inferred from the facts, but rather
that it was not possible to do so in that case based on the factual evidence
which was presented. A second point (more fully argued in Chapter 2 above)
is that the ICTY (as is also the case with the ICTR) is an ad hoc criminal
tribunal established pursuant to a Security Council Resolution with a specific
mandate relating to the criminal responsibility of individuals. Vice-President
Al-Khasawneh, in his dissent on the merits of the Bosnia judgment, shed
some light on the distinction between proving “intent” in cases of individual
83
criminal liability and that in the case of State responsibility. The factual
evidence required to prove genocidal “intent” in the case of an individual is
“limited to the sphere of operations of the accused”. However, in relation to
cases of State responsibility under the Genocide Convention, Vice-President
Al-Khasawneh concluded that
80 Ibid., at para. 547.
81
Prosecutor v. Brđanin, IT-99-36-T, Trial Chamber Judgment, 1 September 2004, para.
824.
Ibid., para. 989.
83 Dissenting Opinion of Vice-President Al-Khasawneh in the Bosnia case.
84 Ibid., para. 42.
Volume 8.indd 288 12/14/2010 2:42:19 PM 289
“[t]he Court can look at pattern of conduct throughout Bosnia because
it is not constrained by the sphere of operations of any particular
accused.” 85
The conclusion applies with equal force to the situation in Croatia and in
relation to Croats.
8.56 In a final attempt to show that “intent” can never be inferred from the
facts, the Respondent relies on the Court’s judgment in Bosnia:
“Turning now to the Applicant’s contention that the very pattern of the
atrocities committed over many communities, over a lengthy period,
focusedonBosnianMuslimsandalsoCroats,demonstratesthenecessary
intent, the Court cannot agree with such a broad proposition. The dolus
specialis, the specific intent to destroy the group in whole or in part, has
tobeconvincinglyshownbyreferenttoparticularcircumstances,unless
a general plan to that end can be convincingly demonstrated to exist;
and for a pattern of conduct to be accepted as evidence of its existence,
it would have to be such that it could only point to the existence of such
86
intent.”
8.57 Contrary to the Respondent’s contention, this finding in no way
refutes the approach taken by Croatia in the Memorial. 87 In the Bosnia
judgment the Court did not reject, in principle, an inferential approach to
the establishment of facts showing a genocidal intent; rather, it held that for
a “pattern of conduct to be accepted as evidence” of the specific intent to
destroy the group in whole or in part, “it would have to be such that it could
only point to the existence of such intent”. It follows that this finding by the
Court is consistent with the case-law of the ICTYand ICTR relied upon by the
Applicant in the Memorial and in this Reply. There is no doubt that the Court
recognises that a relatively consistent and widespread pattern of prohibited
acts targeted at a protected group, taken as a whole, may provide evidence of
specific intent to destroy that group as such, in whole or in part. The evidence
of widespread genocidal activities set out in Chapters 4 and 5 of the Memorial
and reinforced by Chapters 5 and 6 of this Reply, taken as a whole, point to
the one inevitable conclusion that the Court had in mind: namely, that the
Respondent possessed the specific intent required to establish the crime of
genocide under the Genocide Convention. Further evidence of this is seen at
paragraph 242 of the Bosnia judgment, where the Court sets out its approach
to an examination of the factual evidence:
“TheCourtwillalsoconsiderthefactsallegedinthelightofthequestion
whether there is persuasive and consistent evidence for a pattern of
85 Ibid..
86 Bosnia, para. 373.
87 Counter-Memorial, para. 941.
88 Bosnia, para. 373.
Volume 8.indd 289 12/14/2010 2:42:19 PM 290
atrocities, as alleged by theApplicant, which would constitute evidence
ofdolusspecialisonthepartoftheRespondent.Forthispurposeitisnot
necessary to examine every single incident reported by the Applicant,
nor is it necessary to make an exhaustive list of the allegations; the
Court finds it sufficient to examine those facts that would illuminate the
question of intent, or illustrate the claim by the Applicant of a pattern
of acts committed against members of the group, such as to lead to an
inference from such pattern of the existence of a specific intent (dolus
89
specialis).”
It is plain from this passage that the Court in Bosnia was receptive to the
Applicant’s approach of inferring genocidal intent through a pattern of acts
committed against members of a protected group. The fact that such an
inference could not be drawn from the evidence in the Bosnia case does not
have a dispositive bearing on the present case. The evidence of a widespread
and consistent pattern of prohibited acts carried out against Croats does meet
thethresholdsetbytheCourtinits2007judgment:theonlypossibleconclusion
to be drawn from this evidence, taken as a whole, is that the Respondent must
have carried out these acts with an intention to destroy Croats as a group.
SECTION FIVE: CONCLUSIONS
8.58 As has been made clear above, the Court’s judgment in Bosnia is
entirelyconsistentwiththeApplicant’sapproachinthesepresentproceedings.
The dispute between the parties is not so much related to interpretation of
obligations under the Genocide Convention, but rather whether the evidence
presented by Croatia in this case conclusively establishes the responsibility of
the Respondent under the Convention: theApplicant submits that the standard
is plainly met.
8.59 Chapter 9, immediately following this chapter, applies the evidence
andfactspresentedbytheApplicanttothelegalregimesetoutintheGenocide
Convention. It sets out the Respondent’s responsibility under the Convention,
reflecting on the relevant findings of the ICTYand applying the test set out by
the Court in the Bosnia case.
8.60 A close examination of the factual matrix in this case reveals that
the Serbian leadership unquestionably intended to destroy ethnic Croats “as
such” through their crimes; the threshold of dolus specialis is clearly satisfied.
As will be seen in following chapter, the test of attribution is satisfied to the
extent that the Respondent is responsible for acts genocide, even where these
acts occurred beyond national boundaries and/or in excess of authority. All
relevant military operations which resulted in breaches of obligations in the
Genocide Convention were carried out under the command and control of
89 Ibid., para. 242.
Volume 8.indd 290 12/14/2010 2:42:20 PM 291
the JNA, which in light of the evidence presented, must be regarded as an
organ of the FRY, or at least as having been under the direction, command
and control of the FRY leadership (for whose acts the FRY is internationally
accountable).
8.61 The Applicant fully accepts and indeed applies the findings of the
Court in the Bosnia case. These findings, when applied to the extensive
and compelling evidence presented by the Applicant in these proceedings,
demonstrate that only one possible conclusion can be drawn: the Respondent
is responsible for acts of genocide on the territory of Croatia.
Volume 8.indd 291 12/14/2010 2:42:20 PM 292
Volume 8.indd 292 12/14/2010 2:42:20 PM 293
CHAPTER 9
THE RESPONSIBILITY OFTHE FRY FOR VIOLATIONS OFTHE
GENOCIDE CONVENTION, INCLUDINGATTRIBUTION
INTRODUCTION
9.1 This Chapter sets out the Applicant’s submissions concerning the
responsibilityoftheFRYforviolationsoftheGenocideConvention. Itresponds
directly to arguments advanced in the Respondent’s Counter-Memorial, and
summarisestheApplicant’ssubmissionsonthelegalandfactualdevelopments
that have occurred since the Memorial was filed. 1 Since then, there have been
a number of developments: the Court has delivered judgment in the Bosnia
case, clarifying important issues concerning the interpretation and application
of the Convention; the ICTY has concluded a number of trials of individuals
charged with war crimes relevant to these proceedings; and theApplicant has
assembled a further body of eyewitness testimony and documentary evidence
corroborating the allegations made in the Memorial.
9.2 At the outset the Applicant wishes to emphasise the following: the
ICTY has found as a fact that at all relevant times there was in existence a
joint criminal enterprise among the Serb political and military leadership, the
purpose of which was to eradicate (by killing and removing) the Croat civilian
population from approximately one third of the territory of Croatia in order
to transform that territory into an ethnically homogenous Serb-dominated
state. The ICTY found as a fact that this was to be achieved through the
commission of widespread and systematic crimes against the majority Croat
civilianpopulationoftheterritoryincludingextermination,systematicmurder,
torture, cruel treatment, sexual violence, detention in inhumane conditions,
forced expulsion, the destruction of Croat public and private property, the
targeting of monuments of cultural and religious significance to the Croat
population, and the establishment of a discriminatory regime of persecution
2
of those ethnic Croats who remained in the occupied territory. The ICTY has
returned convictions in respect of a number of the specific crimes alleged by
the Applicant in the present proceedings, and has found as a fact that those
3
crimes were committed as part of the joint criminal enterprise.
1 The Applicant comments in detail on these developments in the preceding chapters in
Parts 1 and 2 of this Reply. The present Chapter should also be read in conjunction with, in
particular, Chapter 8 of the Applicant’s Memorial which is adopted without repetition.
2
3 See infra. paras. 9.29 et seq..
Ibid., especially paras. 9.32 et seq..
Volume 9.indd 293 12/14/2010 2:45:34 PM 294
9.3 The ICTY has also found as a fact that all of the forces participating
in the military operations in Croatia which are the subject of the present
application(includingtheforcesoftherebelSerbauthorities,andallvolunteer
and paramilitary formations) operated under the effective command and
control of the JNA; and that the JNA (and all of the combined forces fighting
in the Serb cause) operated at all times under the command and control of
the members of the joint criminal enterprise. The ICTY has held that these
combined forces were the instrument through which the members of the joint
criminal enterprise committed widespread and systematic crimes against the
Croat civilian population on the basis of their ethnicity.
9.4 These findings are plainly sufficient to establish the existence of a
criminal agreement among the members of the Serb political and military
leadership to commit crimes against humanity in Croatia. For the reasons
set out in Chapter 7, the Applicant submits that the FRY is internationally
responsible for the acts of the Serbian leadership, which was to become the
leadership of the FRY. There can be no dispute that crimes amounting to the
actus reus of the crime of genocide were committed by the combined Serb
forces on the territory of Croatia pursuant to that joint criminal enterprise.
The remaining (and central) question for the Court to determine is whether
the systematic nature and scale of the crimes committed pursuant to that joint
criminal enterprise is such that it leads to the inevitable inference that the
members of that criminal agreement intended to achieve their objective (of a
racially homogenous Serb state encompassing one third of Croatia) not only
by means of widespread and systematic crimes against humanity directed at
the Croat civilian population on grounds of its ethnicity (which is now firmly
established)butalsobymeansoftheeradication(throughphysicaldestruction,
persecution and deportation) of the majority Croat civilian population of those
territories.
SECTION I: THE CRIME OF GENOCIDE (ARTICLE II)
9.5 In this section the Applicant addresses in further detail the issues
arising between the parties relevant to the mental element of the crime of
genocide (including the elements of specific intent, and the resulting issues
of proof); the issues arising under the actus reus requirement in light of the
Court’s decision in the Bosnia case; and the conclusions the Applicant asks
the Court to draw on these questions by reference to the whole of the evidence
now available.
(1) Th em e Ta le l e m e: Ge n o c i ilTe nT
9.6 TheApplicant relies on a range of elements to prove genocidal intent,
namely: (a) the political doctrine of Serbian expansionism which created the
Volume 9.indd 294 12/14/2010 2:45:34 PM 295
climate for genocidal policies aimed at destroying the Croatian population
living in the areas earmarked to become part of Greater Serbia; (b) the
statements of public officials, including systematic incitement on the part of
State-controlled media; (c) the fact that the pattern of attacks on the Croatian
civilian population far exceeded any legitimate military objectives necessary
to secure control of the regions concerned; (d) contemporaneous video-taped
evidence of the genocidal intent of those carrying out the attacks; (e) the close
co-operationbetweentheJNAandtheSerbianparamilitarygroupsresponsible
forsomeoftheworstatrocities,implyingcloseplanningandlogisticalsupport;
(f) the systematic nature and sheer scale of the attacks on Croatian civilians;
(g) the fact that ethnic Croats were consistently singled out for attack whilst
local Serbs were excluded; (h) the fact that during the occupation, ethnic
Croats were required to identify themselves and their property as such by
wearing white ribbons tied around their arms and by affixing white cloths to
their homes; (i) the number of Croats killed and missing as a proportion of
the local population; (j) the degree and extent of the injuries inflicted (through
physical attacks, acts of torture, inhuman and degrading treatment, rape and
sexual violence) including injuries with recognisably ethnic characteristics;
(k) the use of ethnically derogatory language in the course of acts of killing,
torture and rape; (l) the forced displacement of the Croat population and
the organised means adopted to this end; (m) the systematic looting and
destruction of Croatian cultural and religious monuments; (n) the suppression
of Croatian culture and religious practices among the remaining population;
(o) the consequent permanent and evidently intended demographic changes
to the regions concerned; and (p) the failure to punish the crimes which the
4
Applicant alleges to amount to genocide.
9.7 All but the last of these elements has been substantially confirmed
by judicial findings of the ICTY in proceedings brought against senior Serb
officials. The Indictments brought against named individuals have been
necessarily selective, however, with the consequence that the decisions of the
ICTY in the limited number of cases that have so far been concluded do not
5
reflect the full scale of the attack on the Croat civilian population. More than
12,211 people were killed in the Serb military campaign and 1,030 persons
are still missing and unaccounted for. The demographic evidence shows that
many of the towns and villages which had a predominantly Croat population
prior to their occupation had become almost exclusively Serb by 1993. In 7
the territory of Eastern Slavonia as a whole, the population ratio prior to the
occupation was 70.24% Croat, 17.13% Serb and 12.6% other ethnic groups;
4 Memorial, para. 8.16.
5 See e.g. para. 9.40, infra.
6 Updated List of Missing Persons, 1 September 2010, Annex 41; Updated List of Persons
Detained in Camps under Serbian Control on the Territory of the FRY, BH and Croatia, 1
September 2010, Annex 42; List of Exhumed Bodies for Sites Referred to in the Memorial,
Annex 43; List of Exhumed Bodies for Additional Sites, Annex 44.
7 Memorial, para. 8.08, footnote 24.
Volume 9.indd 295 12/14/2010 2:45:34 PM 296
by 1993, after the occupation, the Croat population had dropped to 2% and
8
the Serb population increased to 97%. It is against this evidential background
that the issue of genocidal intent now falls to be considered.
(a) The elements necessary to establish genocidal intent
9.8 It is essential, at the outset, to draw a distinction between motive and
intent. The primary motive of the Serbian leadership, in pursuing the joint
criminal enterprise which the ICTY has found to have existed, was to secure
control of approximately one third of the territory of Croatia, and to eradicate
the majority Croat civilian from that territory, in order to transform it into
an ethnically homogenous, Serb-dominated State. It can thus be said that the
“motive”forthecommissionofthesecrimeswasterritorialacquisitioncoupled
with“ethniccleansing”.However,astheICTYhasalsoconfirmed,themilitary
and political campaign by which the object of the joint criminal enterprise
was to be achieved included the intentional and organised commission of
widespread and systematic crimes against the Croat civilian population on
account of their ethnicity. It is theApplicant’s case that the scale of the crimes
committed, including murder, torture, detention, crimes of sexual violence,
and forced deportation, taken together, evince a clear intention to bring about
the physical destruction of the Croat civilian population of the identified
regions.
9.9 In its judgment in the Bosnia case, the Court confirmed that the dolus
specialisforthecrimeofgenocideunderArticleIIoftheGenocideConvention
requires proof of an intent to destroy, in whole or in part, a national, ethnic,
racial or religious group “as such”. It is not sufficient simply to prove that
individuals were targeted because of their identification as members of a
distinct national or ethnic group (which is undeniable in light of the decisions
of the ICTY), or that acts of murder and persecution were committed with
discriminatory intent (also undeniable in light of those decisions). It is
necessary for the Applicant to go further, and to prove in addition that the
protected group itself was targeted “as such”, that is to say that the targeting
occurred with intent to destroy the group itself, in whole or in part. This 10
will depend not only on the scale of the crimes committed, but also on their
intended or likely impact on a national or ethnic group as a whole. It is for
this reason that the Applicant relies on the cumulative effect of the matters
identified in paragraph 9.3 above.
9.10 In its Bosnia judgment the Court established three key criteria for
identifying genocidal intent:
8 Memorial paras. 4.3 to 4.5.
9 Bosnia, para. 187.
10 Ibid., para. 187.
11 See further, para. 9.47 infra.
Volume 9.indd 296 12/14/2010 2:45:34 PM 297
1. The first (the “essential starting point”) is whether there was
an intent to destroy at least “a substantial part” of the identified
group. AsthedispositionintheBosniajudgmentmakesclear,the
question whether the “part” can be considered “substantial” does
not necessarily depend upon purely numerical considerations. It
will take account of broader issues relating to the “significance”
of the targeted group to the national or ethnic group as a whole.
2. Second,thedolusspecialiscanbeestablished“wheretheintentis
to destroy the group within a geographically limited area”. It is 13
not necessary to prove an intent to eradicate the group wherever
it is to be found. The opportunity available to the perpetrator is
significant.14 It may be that the perpetrator has the opportunity
to eradicate only those members of an ethnic group living within
a confined geographical area. That is sufficient to constitute
genocidal intent, providing the targeted group is a substantial
part the whole. Thus, in the Bosnia case, the targeting of Bosnian
Muslims living in the geographically confined area of Srebrenica
15
was sufficient for the purposes ofArticle II.
3. Third, having identified the targeted group (or part) the Court
must go on to consider its prominence in relation to the national
or ethnic group as a whole. Put another way, the Court will take
accountoftherelativesignificanceofthepartofthegroupagainst
whichtheactsweredirected.Thus,althoughtheBosnianMuslim
population of Srebrenica accounted for only a small percentage
of the Bosnian Muslim population as a whole, they were a more
significant part of the whole than a purely quantitative analysis
would have suggested. 17 That said, the Court emphasised that a
“qualitative” approach alone, which takes no account of scale,
would not suffice. It will always be necessary to determine
whether the acts in question were committed with the intention
of destroying a “substantial” part of the group. 18
9.11 The Applicant infers from the Court’s approach that there is no fixed
minimumthresholdintermsofscale,beforeacrime,orcombinationofcrimes,
falling within Article II (a) to (e) can be considered to amount to genocide.
It is not a numbers game: the decisive question is the intent with which the
crime was committed. There must, as a minimum, have been an intention to
12 Bosnia, paras. 198-201.
13 Ibid., paras. 198-201.
14
15 Ibid., para. 199.
Ibid., paras. 296-297.
16 Ibid., paras. 198-201.
17 Ibid., paras. 296-297.
18 Ibid., para. 200.
Volume 9.indd 297 12/14/2010 2:45:35 PM 298
bring about the destruction, as a separate entity, of a significant or substantial
part of a national or ethnic group. Once the target group has been identified
(that is the group of individuals against whom the crimes were directed) it is
then necessary to determine whether that group represented a significant or
substantial part of the whole.
9.12 The Court in the Bosnia case held that the idea of a “group”, as it is
contemplatedby the Genocide Convention requires a positive identificationof
individualsthroughcommonnationalorethniccharacteristics. Inthepresent9
case, the target group identified by the Applicant is the Croat population
that was, at the relevant time, living in Eastern Slavonia, Western Slavonia,
Banovina, Kordun and Lika, and Dalmatia. There can be no dispute that this
group constituted a substantial “part” of the Croat population as a whole (such
that the dolus specialis is to bring about the partial destruction of a national
group, namely Croats).
9.13 In light of the decisions of the ICTY, there can be no doubt that the
eradicationoftheCroatcivilianpopulationfromtheidentifiedregions,through
the commission of widespread and systematic crimes, amounting to crimes
against humanity, was the primary purpose of the joint criminal enterprise
between Slobodan Milošević and other members of the Serb political and
military leadership. It is undeniable that members of the group were targeted
as such, and that the numbers killed or otherwise affected was on any view
20
“substantial”. There remains, however, an issue between the parties as to
the scale and significance of the physical attack on the Croat population of
the identified regions, and whether it evinces genocidal intent. The question
for the Court is whether that amounted to an intention to “destroy” part of a
protected group.
9.14 It is clear from the Bosnia judgment, and indeed from the terms of
ArticleII,thattheterm“destruction”doesnotnecessarilyimplyanintentionto
bring about the c21plete physical annihilation of every member of a national
or ethnic group. Nor does it necessarily involve an intention to bring about
thecompletephysicalannihilationofeveryindividualcomprisinganidentified
22
“part”ofaprotectedgroup. Thedolusspecialisrequiresanintentiontobring
about the destruction of the group (or part) “as such”, that is as a distinct and
separate entity sharing common national or ethnic characteristics. Thus, the
actus reus of the crime of genocide can, in principle, be committed through
a relatively small number of discriminatory crimes or other persecutory acts
19
The Court drew a distinction between a positive identification, through shared national
or ethnic characteristics on the one hand, and a purely negative formula▯tion, such as the
“non-Serb” population of a region, on the other. The “group” contemplated by the Genocide
Convention connoted the former rather than the latter: Bosnia, paras. 191-196.
20 Memorial, para. 8.17.
21 As the International Law Commission has pointed out, “it is not necessary to intend to
achieve the complete annihilation of a group from every corner of the globe”: Ybk ILC, 1996,
Vol. II, Part Two, p. 45, para. 8 of the Commentary to Article 17 of the Articles on State
22sponsibility.
See e.g. para. 9.47(c) infra.
Volume 9.indd 298 12/14/2010 2:45:35 PM 299
(falling within Article II(a) to (e)) perpetrated against individual members of
a protected group. Such acts will constitute the crime of genocide provided
the perpetrators’intention was to bring about the destruction of the whole, or
a substantial part, of the protected group. In the present case, however, the
number of discriminatory crimes and other persecutory acts was extensive▯.
9.15 TheRespondentiswrongtoimply,asitdoesinitsCounter-Memorial,
that the dolus specialis for the crime of genocide can be equated with the
international crime of extermination, and that both crimes necessarily require
killing on a scale amounting to “mass destruction” or a “large number
of deaths”. Where (as here) the acts alleged involved massacre or mass
destruction it will no doubt be easier to infer genocidal intent. This is not,
however, a necessary pre-requisite. The Applicant however accepts and
submits that the scale of deaths, and the extent of persecution, contemplated or
inflictedonmembersofaprotectedgroupisanimportantfactorindetermining
whether the acts complained were (or must have been) committed with an
intent to destroy the protected group (or part) as such. Plainly, in a case where
proof of genocidal intent depends upon inferences from a consistent pattern of
crimes committed on a targeted population over a period of time, the greater
the scale of the crimes committed or contemplated, the more readily the Court
24
will infer the necessary genocidal intent. The Court, in its Bosnia judgment,
cited with approval the ICTY’s observation in Kupreškić that;
“when persecution escalates to the extreme form of wilful and
deliberate acts designed to destroy a group or part of a group, it can
be held that such persecution amounts to genocide” 25
9.16 However, the Applicant would point out that certain crimes, even
if committed on a relatively smaller scale, can have such significance, or
be committed in such a way, as to demonstrate clearly that the crime was
committed with intent to destroy the group “as such”. This will, for example,
be the position where the killing of all (or a large number) of males from a
particular national or ethnic group, living in a relatively confined geographical
area, has a disproportionate impact on the group as a whole (as the Court
found to have occurred in the Srebrenica massacre). It could also be the
positionwheretheevidencedisclosesalargenumberofkillingssystematically
committedagainstindividualsfromatargetedgroup,spreadacrossarelatively
wide geographical area. This is all the more so when combined with other
evidence of a military and/or political strategy which clearly demonstrates
that the crimes were committed with an intent to destroy the existence of a
protected group as a distinct and separate entity, including forced deportation
and the infliction of persecutory conditions of life for those who remain. Each
23 Counter-Memorial, para. 44.
24
25 Bosnia, para. 188.
Prosector v. Kupreškić et al, IT-95-16, Trial Chamber Judgment, 14 January 2000, para.
636.
Volume 9.indd 299 12/14/2010 2:45:35 PM 300
of these features has been established in the present case by the decisions of
the ICTY.
9.17 In light of the findings of the ICTY there can be no real dispute
that acts amounting to the actus reus of the crime genocide were committed
against the targeted group. The decisive question for the Court is whether
the mens rea requirements of the Genocide Convention (which are “defined
very precisely”) 26 have been made out. This does not depend simply on
establishing a minimum threshold in terms of the number of deaths caused
(or contemplated) by a military campaign, or particular military operations.
The analysis required is both quantitative and qualitative, necessitating an
examination of all relevant circumstances in order to determine the intention
with which the relevant acts were (or must have been) committed.
9.18 The Applicant’s Memorial (as supplemented in the present Reply)
evidences a very large number of separate genocidal acts (that is, acts which
can constitute the actus reus of the crime of genocide) committed across the
identified regions during the period from 1991 onwards. As the Applicant
submits below, a consistent pattern of conduct of this kind is relevant to
inferring genocidal intent in relation to the entire campaign, and therefore,
by inference, in relation to each separate criminal act which formed part of
that campaign. It is sufficient for the purposes of Article II for the Applicant
to prove genocidal intent in relation to any one (or more) of the acts cited in
the Memorial. This requires a close examination of each of the crimes and
persecutory acts alleged, and a determination of whether the Applicant has
established that any act (or combination of acts) was committed on such a
scale, or was otherwise of such significance, as to prove that the perpetrators
must have intended to destroy a “substantial” part of the targeted group.
9.19 Applying the Court’s approach in the Bosnia case to the facts of the
present case, theApplicant submits that the evidence proves conclusively that
the Serbian leadership harboured an intention to eradicate ethnic Croats from
the identified regions, through a combination of crimes including murder on a
wide scale, and the infliction of persecution and destruction of property, thus
bringing about the destruction of the Croat population living at the relevant
time in those regions.TheApplicant submits that this is sufficient to constitute
the dolus specialis for the crime of Genocide.
(b) Proof of genocidal intent: inference from a consistent pattern of crimes
9.20 The Bosnia judgment confirms that the Applicant bears the burden of
clearly establishing the dolus specialis for genocide, such that the Court is
“fully convinced” of it. The specific intent for genocide is to be distinguished
from other (discriminatory and persecutory) reasons or motives, and the
26 Bosnia, para. 187.
Volume 9.indd 300 12/14/2010 2:45:35 PM 301
Applicant recognises that the Court will exercise considerable care before
finding a sufficiently clear indication of genocidal intent. 27
9.21 That said, however, it is common ground that a formal plan or policy
establishing an intention to destroy a protected group is neither a legal
28
requirement for the crime of genocide, nor a necessary element of proof.
As the Applicant emphasised in its Memorial, it is most unlikely that a state
would ever formulate a political or military strategy in terms that disclosed
a clear genocidal intent. It is equally unlikely that a perpetrator would leave
behind a paper trail evidencing such a strategy. If it were necessary to prove a
formal plan or policy to destroy a protected group, the Genocide Convention
would become effectively unenforceable. As the Respondent recognises
in its Counter-Memorial, in the absence of a formal policy, direct proof of
29
genocidal intent is likely to be difficult if not impossible. It follows that if
the Convention’s provisions are to be effectively implemented, indirect forms
of proof (circumstantial and inferential evidence) must be admissible before
international courts and tribunals called upon to decide whether genocide has
occurred. It has therefore been held that the genocidal intent inherent in a
particular act or series of acts can be deduced from the general context of the
perpetration of other culpable acts systematically directed against the same
group. 30 That much is no more than common sense. The scale of the crimes
committed, their general nature, their geographical context, and the deliberate
targeting of individuals on account of their membership of a particular group
(whilst members of other groups are spared) can all contribute to an inference
of genocidal intent in relation to any particular act alleged. 31
9.22 Adistinction must however be drawn between permissible methods of
proof on the one hand, and the standard of proof required before a finding of
genocide can be reached on the other. The fact that it is permissible to draw
reasonable inferences from circumstantial evidence has to be reconciled with
the principle that “cogent evidence” is required to prove the dolus specialis
for genocide. Genocide is the most serious of all international crimes, and the
standard of proof must be commensurate with the gravity of the allegation. 32
The Applicant accordingly acknowledges (as it did in its Memorial) that it 33
34
bears the burden of proving the allegations it makes, and that in order to do
so, it must adduce evidence that is, according to the standard adopted by the
27 Bosnia, para. 189.
28 Memorial, paras. 7.33 - 7.41; Prosecutor v. Jelisić, IT-95-10,Appeals Chamber Judgment,
5 July 2001, para. 48; Counter-Memorial, para. 48.
29 The Respondent expressly acknowledges this: Counter-Memorial, para. 135.
30 Prosecutor v. Rutaganda, ICTR-96-3, Appeal Chamber Judgment, 26 May 2003 (‘Ruta-
ganda’), para. 525.
31 Rutaganda, para. 525.
32 Bosnia, para. 209
33 Memorial, paras. 7.33 et seq. and 8.16.
34 Bosnia, para. 204.
Volume 9.indd 301 12/14/2010 2:45:35 PM 302
Court, “fully conclusive”. 35 Insofar as it is necessary to rely on inferences
from the scale and the systematic nature of the crimes committed, taken in
conjunction with the surrounding political and military circumstances, such
an inference can only be drawn where it is an inevitable inference from all of
the available evidence. 36
9.23 In the Bosnia case the Court expressly adopted this approach, holding
that in the absence of a “general plan” to destroy a protected group in whole
or in part, genocidal intent could nonetheless be inferred from the existence
of a set of facts, including a pattern of consistent atrocities committed against
the targeted community over a period of time, providing that pattern is such
that that it “could only point to the existence of such intent”. 37 Whilst the
dolus specialis must be “convincingly established” by evidence that is “fully
conclusive”, it can nonetheless be established by reasonable inferences
from proven facts. In order to meet the necessary threshold, the inference
of genocidal intent must be the only reasonable inference to be drawn from
the facts found proved. The Applicant submits that this test is amply met on
the evidence against Serbia adduced in the Memorial and in this Reply. The
Applicant argued in its Memorial that the 16 factors identified at paragraph
9.6 above “point to the inevitable conclusion that there was a systematic
policy of targeting Croats with a view to their elimination from the regions
concerned” and that this is sufficient to prove genocidal intent. Proof of
those 16 factors has now been substantially corroborated in the judgments
of the ICTY summarised below. The central question to be determined in
the merits phase of the present case is therefore an inferential one, namely
whether the Applicant is right to assert that the pattern of consistent attacks
on, and persecution of, the Croat population of the identified regions during
1991 and 1992, taken in its political and military context, leads inevitably to
an inference of genocidal intent.
9.24 The Respondent criticises the Applicant for relying on a plurality of
“common crimes” as being sufficient to establish genocidal intent. That is
not and has never been the Applicant’s position. The Applicant’s argument
throughout these proceedings has been that the proven pattern of crimes and
acts of persecution evidenced in the Memorial, and in this Reply, can (and
do) lead to an inevitable inference of specific intent. In the end, the point is a
simple one. Genocidal intent must be “convincingly shown”, if necessary by
inference from all of the available evidence.
(c) Genocide and “ethnic cleansing”
9.25 One of the factors on which the Applicant relies to prove specific
35
36 Ibid., para. 209.
37 Memorial, paras. 7.33 et seq. and 8.16; Bosnia, para. 373.
Bosnia, para. 373.
Volume 9.indd 302 12/14/2010 2:45:35 PM 303
intent is the forced and large-scale displacement of the Croat population. The
Applicant accepts, as it has done throughout these proceedings, that a policy
of “ethnic cleansing” cannot directly be equated with proof of genocidal
intent since the displacement of a protected group does not inevitably lead
38
to its destruction. However, as the Court recognised in the Bosnia case, the
forcibledeportationordisplacementofanationalorethnicgroupcanconstitute
a genocidal act contrary to Article II(c) (“deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole
39
or in part”) if committed with the necessary intent. In its Memorial the
Applicantrecognisedthattheterm“ethniccleansing”couldencompassawide
spectrum of conduct, not all of which would necessarily amount to genocide.
However where “ethnic cleansing” takes the form not merely of displacement,
but of systematic killing (including a significant number of mass executions)
and the infliction of wide-scale physical brutality on the protected group (as
well as destruction of property, and the infliction of persecutory conditions
of life) with the intention of bringing about the destruction of the protected
group, then this will constitute the crime of genocide. 40 The question to be
determined is whether, in the present case, the policy of “ethnic cleansing”
through the commission of crimes against humanity and war crimes (a policy
that is now firmly established by the ICTY) was pursued with the intention of
bringing about the physical destruction of the group, or merely its dissolution
or the displacement of its members. 41 The Applicant submits that when the
evidence is viewed as a whole, the former inference is inevitable.
(d) The Respondent’s admissibility objections
9.26 The Respondent makes a number of general objections to the
admissibility of the documentary evidence adduced by the Applicant. In
particular, the Respondent argues that each item of documentary evidence
relied upon should be excluded as inadmissible on one or more of the
following grounds: that it is not relevant since it does not prove genocidal acts
or intent; or that it emanates from a witness who is not disinterested; or that 43
44
it fails to meet formal evidentiary requirements for admissibility; or that it
includes press reports and books that cannot provide primary evidence; 45 or
46
that it includes maps and graphics the providence of which is unknown.
38
Bosnia, para. 190.
39 bid., para. 190.
40 Memorial, para. 8.09.
41 Bosnia, para. 190.
42 Counter-Memorial, at para. 144 et seq. This submission is addressed in Chapter 2, para.
4336.
Ibid., para. 150 et seq. This submission is addressed in Chapter 2, paras. 2.40-41.
44 Ibid., para. 153 et seq. This submission is addressed in Chapter 2, paras. 2.42-43.
45 Ibid., para. 159 et seq. This submission is addressed in Chapter 2, paras. 2.47-51.
46 Ibid., para. 163 et seq. This submission is addressed in Chapter 2, paras. 2.52-54.
Volume 9.indd 303 12/14/2010 2:45:35 PM 304
9.27 These criticisms are manifestly without substance: they are either
unfounded,unspecific,orhavebeenaddressedsincethefilingoftheMemorial,
as more fully explained in Chapters 2, 5 and 6 of this Reply. Having regard
to established principles governing the presentation of evidence and matters
of proof in proceedings before the Court, each of the objections goes to the
weight of the evidence and not to its admissibility. The Court is entitled to
have regard to all of the available evidence and to make its own evaluation
of it. That is particularly so in light of the judicial findings of the ICTY, on
the criminal standard of proof, corroborating a number of the key allegations
made by the Applicant. It is the cumulative impact of all of the evidence,
taken in conjunction with the judgments of the ICTYthat forms the evidential
matrix in this case.
(e) The Respondent’s substantive response to the allegations
made and evidence adduced by the Applicant
9.28 In Chapter VII of its Counter-Memorial the Respondent seeks
to mount a critique of the evidence adduced by the Applicant, through
a combination of selective criticism and assertion. The points made in the
Counter-Memorial are addressed in detail in Chapters 5 and 6 of this Reply.
The Applicant has answered each of the criticisms made by the Respondent
and has summarised the further evidence that has been obtained since the
initial Memorial was filed corroborating the allegations it makes. Significant
parts of the Applicant’s factual case remain unchallenged, and even where
the Respondent has challenged the allegations, it has failed to adduce any
affirmative evidence in support of its case (instead confining itself to a critique
of the evidence adduced in the Applicant’s Memorial). It is unnecessary to
repeat or summarise the submissions made in response in the present Chapter.
The Applicant relies not only on the evidence initially submitted with the
Memorial, but on the additional corroborative evidence submitted with this
Reply, and on the judgments and findings of the ICTY. In the light of all
the evidence now available the Court is invited to reject the Respondent’s
evidential criticisms as failing to afford a substantive answer to the allegations
made in the Memorial.
(f) ICTY judgments and prosecutorial decisions
9.29 TheApplicanthassetoutitssubmissionsontherelevanceoftheICTY
proceedings in detail in Chapter 2, paragraphs 2.25-33. It is common ground
that the Office of the Prosecutor of the ICTY has not indicted any Serbian
official for the crime of genocide in connection with the military operations
conducted in Eastern Slavonia, Western Slavonia, Banovina, Kordun and
Lika, and Dalmatia, or the subsequent persecution of the Croatian population
living in those regions. In the Applicant’s submission, this is significant only
Volume 9.indd 304 12/14/2010 2:45:35 PM 305
in the sense that, as a consequence, there has been no judicial determination
by the ICTY, one way or another, as to whether the crimes committed, taken
in their totality, escalated beyond the systematic and widespread commission
of crimes against humanity, and amounted to genocide. That is an evaluation
that the ICJ is better placed to make since it is concerned not with individual
responsibility for particular crimes, but with State responsibility for the
totality of the crimes committed during the totality of the military and related
operations that made up the military campaign against Croatia.
9.30 Nonetheless, the findings of the ICTY provide strong support for
key elements of the Applicant’s case in accordance with the principles laid
down by the ICJ in the Bosnia case. So far, the ICTY has concluded criminal
prosecutions against seven individuals, the results of which are of direct
probative relevance to the present proceedings: Martić; Babić; Mrkšić et al;
Strugar, and Jokić. Indictments relevant to the present proceedings have
also been issued against four further individuals: Franko Simatović, Jovica 47
48 49 50
Stanišić, Vojislav Šešelj, and Goran Hadžić.
9.31 To put the concluded proceedings in context, it is necessary first to
summarise the joint criminal enterprise (‘JCE’) alleged against Slobodan
51
Milošević and others. Although Milošević died during his trial, such that
the ICTY made no findings of fact in his case, the scope of the Indictment
against him is nevertheless relevant. This is because two of the cases that
have so far been brought to a final conclusion (and therefore involve judicial
determinations of fact) involved the prosecution of individuals who were
alleged to have been party to the same JCE as Milošević himself.
9.32 The Milošević Indictment alleged inter alia a JCE to bring about “the
forcible removal of the majority of the Croat and other non-Serb population
from approximately one third of the territory of the Republic of Croatia that
[Milošević] planned to become part of a new Serb-dominated state through
52
the commission of war crimes and crimes against humanity”. It alleged that
Milošević, along with and through the other participants of the JCE “directed,
commanded,controlledorotherwiseprovidedsubstantialassistanceorsupport
53
to the JNA, the Serb-run TO staff, and volunteer forces”. Those named as
parties to the JCE included Milan Martić, Milan Babić, Franko Simatović,
Jovica Stanišić, Vojislav Šešelj, Goran Hadžić and Ratko Mladić. The
47 Prosecutor v. Jovica Stanišić and Franko Simatović, IT-03-69, ThirdAmended Indictment,
9 July 2008.
48 Ibid..
49 Prosecutor v. Vojislav Šešelj, IT-03-67, ThirdAmended Indictment, 7 December 2007.
50
51 Prosecutor v. Goran Hadžić, IT-04-75-I, Indictment, 21 May 2004.
Prosecutor v. Slobodan Milošević, IT-02-54-T, SecondAmended Indictment, 27 July 2004.
52 Ibid., paras. 6-7.
53 Ibid., para. 26(j).
Volume 9.indd 305 12/14/2010 2:45:35 PM 306
Indictment contained specific allegations of war crimes and crimes against
humanity in Eastern Slavonia and inWestern Slavonia, Banovina, Kordun and
Lika, and Dalmatia. In particular;
1. The Indictment alleged the crime of persecution through the murder
(between 1 August 1991 and June 1992) of hundreds of Croat and other
non-SerbciviliansinDalj,Erdut,Klisa,LovasandVukovar;theprolonged
imprisonment of thousands of Croat and other non-Serb civilians, and
the repeated torture and killing of such civilians; the forcible transfer
or deportation of at least 170,000 Croat and other non-Serb civilians
(including the deportation or forcible transfer of at least 5000 inhabitants
of Ilok, 20,000 inhabitants of Vukovar and at least 2,500 inhabitants of
Erdut).
2. It alleged murder (as a crime against humanity and as a war crime) and
extermination (as a crime against humanity) between October 1991 and
May 1992 of 264 Croats and other non-Serb civilians from Dalj, Lovas,
Erdut, Erdut Planina and Dalj Planina through their removal, torture and
execution. 54 These crimes were alleged to have been committed “as part
of the overall persecution campaign” conducted by “Serb military forces
under the command, control, or influence of the JNA, the TO SBWS and
other participants of the JCE”.
3. It alleged deportation and inhumane acts (as crimes against humanity)
and unlawful deportation or forcible transfer (as war crimes) between 1
August 1991 and May 1992. The allegations were made against “Serb
forces comprised of the the JNA, TO and volunteer units including the
‘White Eagles’, ‘Šešelj’s Men’, ‘Dušan Silni’and ‘Arkan’s Tigers’, in co-
operation with police units including ‘Martić’s Police’, SNB and Serbian
MUO, and others under the effective control of Slobodan Milošević or
other participants in the joint criminal enterprise.”5 The modus operandi
alleged was that set out in the Applicant’s Memorial in the present
proceedings, namely that Croat towns and villages would be surrounded,
andtheinhabitantstoldtosurrenderallweapons;thetownorvillagewould
then be attacked, and civilians (including those who had surrendered their
weapons) would be targeted with a view to compelling the population
to flee; thereafter, once Serb forces had gained control, the remaining
civilians would be rounded up and forcibly transferred outside Croatia
(particularly to Serbia and Montenegro), or to locations in those parts of
Croatia which remained under the effective control of the Government of
Croatia.
54Ibid., paras. 49-58 and 60-62.
55Ibid., para. 68.
Volume 9.indd 306 12/14/2010 2:45:35 PM 307
9.33 For the reasons set out above, the Applicant does not rely directly
upon the inclusion of these charges in the Indictment against Milošević, or
upon the fact that applications to dismiss certain of the charges at the end
of the Prosecution case were rejected. However, in June 2007, following a
contested trial, the ICTY found Milan Martić guilty of participation in a JCE
which was in all material respects the same as the JCE alleged in Milošević
56
Indictment. Martić held a number of senior posts in the ‘SAO Krajina’(later
the ‘RSK’) including (from January 1994) its Presidency. He was convicted
by the ICTY on 16 counts alleging crimes against humanity (including
persecution, murder, imprisonment, torture, inhumane acts, deportation and
forcibletransfer)andwarcrimes(includingmurderandtorture)andsentenced
to 35 years imprisonment. The majority of these convictions related to his
involvement in a JCE in the ‘SAO Krajina’ and the RSK between 1991 and
1995.
9.34 TheTrialChamberfoundasafactthatMartićhadparticipatedinaJCE
jointly with inter alia Slobodan Milošević, Milan Babić, Franko Simatović,
Jovica Stanišić, Vojislav Šešelj, Veljko Kadijević, and Ratko Mladić. The 57
JCE “involved the killing and the removal of the Croat population” by theTO,
the police and the JNAacting in co-operation”. 58 The aim was to eradicate the
Croat civilian population from the territory. The ICTYfound that the JCE had
been implemented through a “generally similar pattern” of military attacks
namelytheencirclementofCroattownsandvillages,attacksonthepopulation,
widespread crimes of violence and intimidation and crimes against public
59
and private property, detention, and then forced displacement. The Trial
Chamber in Martić held that the displacement of the Croat population was not
a mere side-effect of this pattern of attacks, but was its primary objective. 60
9.35 As to the specific crimes alleged by theApplicant in its Memorial, the
ICTY held as follows:
1. Hrvatska Kostajnica: The ICTY found as a fact in the Martić
case that 83 Croat civilians were killed in this municipality in
October 1991. 61 The Trial Chamber found that the killings and
other persecutory conduct amounted to crimes against humanity,
committed pursuant to a joint criminal enterprise to conduct a
systematic attack on the Croat civilian population (a finding that
is fully consistent with the agreed factual basis of plea in the
56
57 Martić, para. 446.
Ibid., para. 446.
58 Ibid., para. 443.
59 Ibid..
60 Ibid..
61 Ibid..
Volume 9.indd 307 12/14/2010 2:45:35 PM 308
Babić case). The killings were systematic and organised. In
particular, the ICTY held that:
a. On various dates in September and October 1991
Serb forces destroyed 10 houses belonging to Croats
or families of mixed ethnicity in the village Hrvatska
Dubica, that during the same period the JNA, TO
and Milicija Krajine looted Croatian property in the
village, and that on 20 October 1991 the Milicija
Krajine detained 41 civilians from the village in the
local fire station and murdered them the following day
at Krečane near Baćin. 63
b. On various dates in September 1991 Serb forces
burnt 10 houses and a Catholic church in the village
of Cerovljani, and that on or about 20 or 21 October
1991 10 civilians from the village were murdered
by the Milicija Krajine, units of the JNO or TO, or a
combination of them, and the victims were buried in a
mass grave in Krečane. 64
c. During October, 28 civilians from the village of Baćin
were murdered by the Milicija Krajine, units of the
JNO or TO, or a combination of them, and that 7 of
the victims were buried in mass graves in Krečane and
Višnjevački Bok. 65
d. The Trial Chamber held that it had been established
beyond reasonable doubt that all of these crimes were
66
committed on the basis of the victims’ethnicity.
2. Slunj: The Chamber found as a fact that at the end of September
or October seven Croat civilians from Lipovača were murdered
67
and their bodies buried in a mass grave in Lipovača Drežnička;
and that on 7 November 1991 JNA soldiers murdered 8 Croat
68
civilians in the village of Vukovići.
62
Chapter 6, para. 6.33.
63 Babić, paras. 354-358.
64 Ibid., paras. 359-363.
65 Ibid., paras. 365-367.
66 Martić, paras. 354-367.
67
68 Ibid., paras. 202-208.
Ibid., paras. 212-214.
Volume 9.indd 308 12/14/2010 2:45:36 PM 309
3. Saborsko: The Chamber found as a fact that the JNA, TO and
paramilitaries, in combination were responsible for the killing of
69
a total of 34 Croat civilians in Saborsko in November 1991. On
12 November 1991 JNAforces, acting with forces of the TO and
the Milicija Krajine attacked Saborsko with aerial bombardment
and shelling. Ground units, including tanks, moved in on three
axes. In total the Chamber found that 30 Croat civilians had been
murdered during this operation and that four were murdered
subsequently. After the attack, Serb forces looted the village and
during the ensuing months Croat properties were systematically
destroyed.TheonlytwohousesleftstandingwereSerbproperties.
The Chamber found that all these crimes had been committed on
the ground of the victim’s ethnicity. The ICTY’s findings in the
Martić case concerning attack on Saborsko are fully consistent
withtheagreedfactualbasisofpleaintheBabićcasesummarised
below. 70
4. Titova Korenica: The Chamber found as a fact that the attack
on the villages of Poljanak and Vuković constituted the crime of
persecution (as a crime against humanity). 71
5. Gračac: The Chamber found as a fact that between 5 and 14
August 1991, 5 Croat civilians were killed in Lovinac by Serbian
paramilitaries. 72
6. Knin: The Chamber found as a fact that on 18 January 1992, 6
Croat civilians were killed in Ervenik as part of a wider pattern of
73
killings in the Knin region; that the attacks on Kijevo and Knin
were co-ordinated and systematic; and that civilians detained
in detention facilities including the old hospital at Knin were ill-
treatedandbeaten,andthatthedetentionsamountedtopersecution
(as a crime against humanity) as well as imprisonment, torture,
cruel treatment and other inhumane acts (as crimes against
humanity). 75
7. Obrovac: The Chamber found as a fact that five civilians from
76
Jasenice were killed, and over 100 Croat civilians displaced.
69
Ibid., paras. 225-234 and 379-383.
70 Chapter 6, paras. 6.33 and 6.53 et seq.
71 Martić, paras. 211 et seq.
72 Ibid., para. 324, footnote 1002.
73 Ibid., para. 327, footnote 1012.
74
75 Ibid., paras. 166 to 169.
Ibid., paras. 279 to 294.
76 Ibid., para. 299, footnote 930; and para. 324, footnote 1002.
Volume 9.indd 309 12/14/2010 2:45:36 PM 310
8. Benkovac: The Chamber found as a fact that on 21 December
1991, forces of the Milicija Krajine killed 9 Croat civilians
in Bruška, and that these killings amounted to the crimes of
persecution (as a crime against humanity) and murder (as crime
against humanity and as a war crime).
9. Zadar: TheChamberfoundasafactthaton18and19November
1991 Serb forces killed 75 Croat civilians and that these killings
amounted to persecution (as a crime against humanity), murder
(as crime against humanity and as a war crime), and further that
the physical destruction in the municipality amounted to wilful
77
destruction (as a war crime).
9.36 Milan Babić was also indicted as a member of the same JCE. Babić
held a number of senior posts in the ‘SAO Krajina’and the ‘RSK’, including
its ‘Presidency’. He pleaded guilty and accordingly it is necessary (and
permissible) for the ICJ to have regard to the agreed factual basis for his plea,
and the sentencing judgment. By his plea, Babić accepted that he was guilty
of the crime of persecution (as a crime against humanity) committed as part
of a JCE jointly with Milošević, Martić, Hadžić, Stanišić, Simatović, Šešelj,
Mladić and others betweenAugust 1991 and February 1992.
9.37 The purpose of the JCE to which Babić pleaded guilty was to
“permanently and forcibly remove the majority of the Croat and other non-
SerbpopulationsfromapproximatelyonethirdofCr78tiainordertotransform
the territory into a Serb-dominated state”. The area concerned was the ‘SAO
Krajina’, the ‘SAO Western Slavonia’, the ‘SAO SBWS’ and the Dubrovnik
Republic. The JCE was accomplished by Serb forces (comprising the JNA,
TO, MUP police and paramilitary units acting together) attacking and taking
control of towns, villages and settlements in the ‘SAO Krajina’, and thereafter
establishing a “regime of persecution” designed to force the Croat and other
non-Serb civilian populations from those territories. On the agreed facts, this
persecutoryregimeincludedtheexterminationormurderofhundredsofCroat
andothernon-SerbciviliansinDubica,Cerovljani,Baćin,Saborsko,Poljanak,
Lipovača, and the neighbouring hamlets of Škabrnja, Nadin and Bruška; the
prolonged and routine imprisonment of several hundred Croat and other non-
Serb civilians in inhumane living conditions in the old hospital and the JNA
barracks in Knin; the deportations of thousands of such civilians from the
‘SAO Krajina’: and the deliberate destruction of homes and other public and
private property, cultural institutions, historic monuments, and sacred sites
of the Croat and other non-Serb populations in Dubica, Cerovljani, Baćin,
77
78 Ibid., paras. 386-399.
79 Babić, para. 16.
Ibid., para. 34.
Volume 9.indd 310 12/14/2010 2:45:36 PM 311
Saborsko, Poljanak, Lipovača and the neighbouring hamlets of Vaganac,
80
Škabrnja, Nadin and Bruška.
9.38 According to his agreed basis of plea, Babić participated in the JCE
in his role as President of ‘SAO Krajina’ though the formulation, promotion
and implementation of the JCE; through the establishment and maintenance
of government bodies that, in co-operation with the JNA, implemented
the JCE; by giving assistance in the recruitment and re-organisation of TO
volunteer forces of the ‘SAO Krajina’, and by acting as their commander in
chief; through his co-operation with the head of the ‘Martić Police’who were
involved in the commission of crimes; through the provision of financial,
materialand logisticalsupport to the forces carrying out the militarycampaign
throughwhichtheJCEwasimplemented;throughfacilitatingtheparticipation
of the JNAin the maintenance of the ‘SAO Krajina’; and by making ethnically
inflammatory speeches aimed at fomenting an atmosphere of fear and hatred
amongst the Serb population of the region. 81
9.39 In the Mrkšić et al case the ICTY convicted Mile Mrkšić of murder,
torture and cruel treatment (as war crimes) and convicted Veslin Šljivančanin
of torture (as a war crime) in relation to their part in the Ovčara farm
massacre, thereby confirming the factual allegations about this massacre set
out in theApplicant’s Memorial. They were sentenced to 20 years and 5 years
imprisonment respectively, although the sentence imposed on Šljivančanin
was subsequently increased on appeal to 17 years. 82 In its judgment, the
ICTY found that prisoners held at the Ovčara farm on 20 October 1991 were
systematically beaten by TO members, Serb paramilitaries and regular JNA
soldiers, acting in concert, and that at least 194 prisoners were then taken to
a separate site nearby where they were summarily executed and buried in a
mass grave . The facts of that massacre are thus beyond dispute. Subsequent
to the judgment of the ICTYin the Mrkšić et al case, the BelgradeWar Crimes
Chamberhas returnedconvictionsagainst13 individualschargedfor theirpart
in the Ovčara farm massacre. 84
9.40 In its Counter-Memorial, the Respondent makes a number of
observations concerning the Mrkšić et al case which are inaccurate and fail
properly to reflect the scope of the Indictment or the significance of the
findings made (or not made) in the judgment. These issues are addressed in
Chapter 6 supra. In summary, the Applicant points out that the Indictment in
Mrkšić et al was limited in scope, and did not encompass any charges relating
to the prolonged attack by JNA and other Serb forces directed against the
80
81 Ibid., para. 15.
82 Ibid., para. 24.
Prosecutor v Mile Mrkšić, Miroslav Radić and Veselin Šljivančanin, (IT-95-13),Appeals
Chamber Judgment, 5 May 2009.
83 Mrkšić et al., paras. 215 to 253.
84 Chapter 6, paras. 5.65 and 5.81.
Volume 9.indd 311 12/14/2010 6:01:46 PM 312
85
civilian population ofVukovar in 1991. As a result, the Chamber was unable
to return verdicts in relation to these events. Notwithstanding this, the ICTY
found as a fact that JNAtroops, acting in concert with territorial defence units
(‘TO’) and paramilitary units took part in the attack on Vukovar; that there
were dramatic differences in the military capabilities of the Serb forces and
the Croatian defence forces; and that Serb forces had brought “devastation”on
Vukovar during the prolonged military engagement in 1991, which involved
“very many civilian casualties, and extensive damage to property”. To that 86
extent the judgment is consistent with, and confirms, the allegations made by
theApplicant in its Memorial.
9.41 In addition to these cases, the ICTY has concluded proceedings
against Pavle Strugar and Miodrag Jokić in respect of a sample incident of
shelling directed against civilian targets in the old town of Dubrovnik on 6
December 1991. The ICTY found as a fact that this attack (which was the
culmination of three months of similar attacks) was directed against civilians
and civilian sites of cultural and religious importance for the Croat population.
In the Bosnia case the Court held that attacks on sites of religious and cultural
significance cannot, taken alone, constitute prohibited acts within the meaning
ofArticle II(c) (deliberately inflicting on the group conditions of life designed
to bring about its destruction in whole or in part). 87 The Court went on to
hold, however, that such acts may nonetheless be highly significant inasmuch
as they are directed to the elimination of all traces of the cultural or religious
presence of a group and are contrary to other legal norms. The relevance is to
show genocidal intent. The Court specifically referred to the observations of
the ICTY in Krstić to the effect that
“where there is physical or biological destruction there are often
simultaneous attacks on the cultural and religious property and
symbols of the targeted group as well, attacks which may legitimately
be considered as evidence of an intent to physically destroy the
89
group”.
9.42 The Indictment against Miodrag Jokić (an Admiral in the Yugoslav
Navy) and Pavle Strugar (a JNA commander) did not directly concern the
crimes committed in the period between 1 October 1991 and 5 December
1991, which form a key part of the allegations set out in the Applicant’s
Memorial. Jokić pleaded guilty to a charge alleging war crimes in relation to
85
Mrkšić et al.,para. 8. Nor did the Indictment include the acts of mistreatment and kil▯ling
that occurred at the Velepromet facility on 19 November 1991 (as to which see Chapter 5,
paras. 5.74-77).
86 Mrkšić et al.,para. 8.
87 Bosnia, para. 344.
88 Prosecutor v Krstić, IT-98-33, Trial Chamber Judgment, 2August 2001.
89 Bosnia, para. 344.
Volume 9.indd 312 12/14/2010 2:45:36 PM 313
the shelling of the old town of Dubrovnik on 6 December 1991. Accordingly
it is necessary (and permissible) for the ICJ to have regard to the agreed
factual basis for his plea, and the sentencing judgment. This records that Jokić
took part in a military campaign directed at Dubrovnik which began on 1
October 1991; that during this campaign JNAforces under his command fired
“hundreds of shells” which struck the old town of Dubrovnik which, to his
knowledge,wasaUNESCOWorldCulturalHeritagesite,undertheUNESCO
World Heritage Convention, and included sites which were protected under
the Hague Convention on the Protection of Cultural Property in the Event of
Armed Conflict; that he was also aware that a substantial number of civilians
lived in the old town; that no steps were taken to investigate the shelling of
the old town during October and November, or to bring the perpetrators to
justice; that on 6 December 1991 JNA forces under his command (and for
whom he bore command responsibility) unlawfully shelled the old town; and
that as a result two civilians were killed, three were wounded, six buildings
were completely destroyed and many more suffered substantial damage, and
institutions dedicated to religion, charity, education, and the arts and sciences,
and historic monuments and works of art were damaged or destroyed. 90
9.43 Pavle Strugar was subsequently convicted for his part in the attack
on 6 December 1991. The Trial Chamber found as a fact that the old town of
Dubrovnik was subjected to extensive and prolonged artillery shelling on that
date by the JNA, notwithstanding repeated protests from the ECMM monitors
on the ground, and that there was evidence of a significant number of civilian
deaths and casualties. The Chamber held that in shelling the old town the JNA
was not targeting Croatian firing points, or legitimate military targets, and that
the intent of the perpetrators was to target civilians and civilian objects.
9.44 Indictments relevant to the same JCE have also been issued against
91 92 93 94
Franko Simatović, Jovica Stanišić, Vojislav Šešelj, and Goran Hadžić.
The prosecutions of Simatović, Stanišić and Šešelj are extant, and Hadžić
remains at large.At the time of writing there have therefore been no definitive
findings of fact by the ICTYin relation to any of these Indictments. Applying
the principles laid down by the Court in the Bosnia case, 95 the Applicant
places no reliance on the proceedings in those cases, other than to note that
90 Jokić, paras. 21-29.
91 Prosecutor v. Jovica Stanišić and Franko Simatović, IT-03-69, ThirdAmended Indictment,
9 July 2008.
92
93 Ibid..
Prosecutor v. Vojislav Šešelj, IT-03-67, ThirdAmended Indictment, 7 December 2007.
94 Prosecutor v. Goran Hadžić, IT-04-75, Indictment, 21 May 2004.
95 Supra., paras. 9.9 et seq..
Volume 9.indd 313 12/14/2010 2:45:36 PM 314
Indictments have been issued, and that further ICTY judgments are expected
in due course in relation to three of the accused members of the JCE. The
Applicant would, however, point out that in the Martić case, the ICTY has
already found as a fact that Simatović, Stanišić and Šešelj were parties to the
96
same JCE.
9.45 Finally, in the context of extant judicial proceedings, the Applicant
would point out that the crimes alleged to have occurred at Lovas are currently
the subject of a war crimes prosecution before the Belgrade District Court. 97
Applying mutatis mutandis the Court’s approach in the Bosnia case, the
Applicant does not place direct reliance on the Indictment or the institution
of proceedings in that case since there have, at the time of writing, been no
definitivefindingsoffactintheproceedings. Exceptionallyhowever,theterms
of the Indictment issued by the FRY in its own courts are themselves relevant
to the present proceedings since they are inconsistent with the position taken
98
by the State in its Counter-Memorial.
(2) Th ep h y s i ell e m eT: G e n o c i alcTs
9.46 As regards the physical element of the crime of genocide (proof
that genocidal acts occurred) the Applicant makes two points by way of
introduction:
First, the Applicant’s case on genocidal intent depends in large part
upon the inferences of intent which it invites the Court to draw from
the widespread and systematic pattern of attacks that were perpetrated
on the Croat civilian population of the identified regions. To that
extent, there is a significant overlap between the evidence relevant to
proving the dolus specialis for the crime of genocide and the evidence
relevant to proving that genocidal acts occurred.
Second, in light of the evidence adduced in the Memorial and in this
Reply, taken in conjunction with the factual findings of the ICTY
outlined above, there can be no doubt that genocidal acts (that is,
acts which are capable of constituting the actus reus of the crime of
genocide) occurred. The question for the Court is whether those acts
were (or must have been) perpetrated with genocidal intent.
9.47 TheApplicant submits that the factual evidence, taken in conjunction
with the judicial findings of the ICTY, establishes beyond doubt that Serb
forces (comprising the JNA, the MUP, the TO, the Milicija Krajine, the
‘MartićPolice’andvariousparamilitarygroupings)actingontheauthority
96 Supra., para. 9.47(c)(i).
97 Chapter 5, paras. 5.57-62.
98 Ibid..
Volume 9.indd 314 12/14/2010 2:45:36 PM 315
of the leadership of the FRY, and the ‘SAO Krajina’(‘RSK’), committed
the following prohibited acts:
1. Killing members of the group (Article II(a)): This requires proof
of(a)thedeathofapersonformingpartoftheprotectedgroup;(b)
whichresultedfromunlawfulactsofaccusedorhissubordinates;
(c) committed with either an intention to kill or cause serious
bodily harm, or in circumstances which the perpetrator should
reasonably have known might lead to death. Standing alone, the
judgments of the ICTY leave no room for doubting that large
numbers of ethnic Croats were intentionally and unlawfully
killedaspartofawidespreadandsystematicattackonthecivilian
population. However, the scale of the attack on the Croat civilian
population only becomes fully apparent when those findings are
taken in conjunction with the evidence set out in the Memorial,
and in Chapters 5 and 6 of this Reply. More than 12,000 people
were killed in the Serb military campaign and the demographic
composition of the territory was changed in accordance with the
objective of the joint criminal enterprise.
2. Causing serious bodily or mental harm to members of the
group (Article II(b)): Again, on the findings of the ICTY alone,
there can be no doubt that acts falling within Article II(b) were
systematically committed against the Croat civilian population
on a wide scale, and on account of their ethnicity. The Court has
held that “serious bodily or mental harm” includes significant
psychological harm resulting from acts of torture, inhumane
and degrading treatment, the use or threat of violence, and in
particularrapeandotherformsofsexualviolence. 99Theevidence
discloses numerous instances of such harm being inflicted on
Croat civilians on grounds of their ethnicity, and demonstrates
conclusively that such acts were carried out systematically, and
on a wide scale.
3. Deliberately inflicting on the group conditions of life designed to
bring about its destruction in whole or in part (Article II(c)): For
the purposes of Article II(c) it is not necessary to prove that the
conditions of life inflicted on the protected group in fact brought
about its actual physical destruction in whole or in part. It is,
however, necessary to prove that the conditions were calculated
(that is, intended) to bring this about. The Applicant makes four
submissions on the application ofArticle II(c):
i. In the Bosnia judgment the Court left open the question
whether the encirclement of Croat towns and villages by
99
Bosnia, paras. 298-304.
Volume 9.indd 315 12/14/2010 2:45:36 PM 316
military forces, accompanied by shelling and a period of
enforced starvation could constitute a prohibited act falling
within the meaning of Article II(c) if accompanied by the
necessary genocidal intent. 100 The issue did not arise for final
determination in the Bosnia case because (with the exception
ofthemasskillingsatSrebrenica)theCourtwasunabletofind
the necessary genocidal intent. TheApplicant submits that in
the present case, by contrast, the issue arises directly since the
inference of genocidal intent is established and inevitably so.
In this context the Applicant recalls the findings of the ICTY
in the Martić case that the JCE proved in that case was carried
out through a “generally similar pattern” of military attacks
involving the encirclement of Croat towns and villages,
attacks on the population, widespread crimes of violence and
intimidation and crimes against public and private propert101
followed by detention, and then forced displacement.
ii. TheApplicant also recalls the basis of plea in the Babić case,
whereby the accused admitted that through his role as a senior
officialinthe‘SAOKrajina’,hehadbeenpartytoestablishing
a “regime of persecution” designed to force the Croat and
other non-Serb civilian populations from those territories. On
the agreed facts, that regime included the extermination or
murder of hundreds of Croat and other non-Serb civilians; the
prolonged and routine imprisonment of several hundred Croat
and other non-Serb civilians in inhumane living conditions;
the deportation of thousands of such civilians from the ‘SAO
Krajina’: and the deliberate destruction of homes and other
public and private property, cultural institutions, historic
monuments, and sacred sites. The Applicant submits that
these findings, taken together, are plainly sufficient to bring
the conduct concerned withinArticle II(c).
iii. As the Court recognised in the Bosnia case, the forcible
deportation or displacement of a national or ethnic group
(“ethnic cleansing”) can constitute a genocidal act contrary to
Article II(c) (“deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction in
102
whole or in part”) if committed with the necessary intent.
The Respondent does not dispute this. 103For the reasons set
out above, the Applicant submits that the evidence, taken
as a whole, establishes beyond doubt that acts of forcible
expulsion and deportation occurred on a wide scale; that this
100
101 Ibid., paras. 328.
Martić, para. 443.
102 Bosnia, paras. 190-334.
103 Counter-Memorial, para. 84.
Volume 9.indd 316 12/14/2010 2:45:36 PM 317
policy was combined with systematic and targeted acts of
physicaldestruction(ofbothpeopleandofproperty)onethnic
grounds; that it was also accompanied by the imposition of a
“persecutory regime” (see Babić above); and further that the
only reasonable inference from the whole of the evidence is
that the forced displacement of the remaining Croat civilian
population was carried out for the purpose of destroying the
group in whole or in part, and not merely for the purpose of
displacing it.
iv. There is overwhelming evidence that Serb forces perpetrated
attacks on (including direct shelling and destruction of)
targets of cultural and religious importance for the Croat
civilian population. A particularly notorious example (the
shelling of civilian targets in the old town of Dubrovnik) was
the subject of two convictions before the ICTY. There are,
in addition, numerous instances in the Martić case in which
the ICTY found as a fact that sites of religious and cultural
significance to the Croat civilian population were targeted for
destruction on ethnic grounds. This was confirmed by the
Babić case where, according to the agreed facts, the parties
to the JCE caused deliberate destruction of public and private
property, cultural institutions, historic monuments, and sacred
sites, perpetrated on ethnic grounds. The Applicant accepts
that, taken alone, the destruction of property (including sites
of cultural and religious significance) does not constitute a
genocidal act within Article II(c) since it does necessarily
connote an intention to bring about the physical destruction of
104
the persons making up the group. As the Applicant points
out above, 105 however, such acts, taken in conjunction with
acts of physical destruction of members of the group, and the
infliction of physical and psychological injury, may be highly
significant evidence of genocidal intent.
SECTION II: CRIMES OF CONSPIRACY, INCITEMENT,ATTEMPT
AND COMPLICITY (ARTICLE III)
9.48 The Applicant accepts that if the Court finds the FRY responsible for
acts of genocide under Article III(a) of the Convention it is not necessary to
go on to consider the other forms of responsibility under Article III(b) to (e).
The Court is concerned with the responsibility of States for internationally
wrongful acts. If, and to the extent that, substantive acts of genocide under
Article III(a) are held to be attributable to a State directly, it is unnecessary to
104 Bosnia, para. 344.
105
Paras. 9.41-43.
Volume 9.indd 317 12/14/2010 2:45:36 PM 318
go on to consider, in relation to that particular act, whether persons or entities
for whom the State is responsible were also guilty of the inchoate offences
in Articles III(b) to (e), and thereby to impute State responsibility through an
additional and alternative route. Thus Articles III(b) to (e) would only arise
for determination if the Court were to hold against theApplicant in relation to
its primary case underArticle III(a) as regards all or any of the acts alleged.
(1) co n s p i r a c y
9.49 AsnotedinChapter8,inordertoproveconspiracytocommitgenocide
contrary to Article III(b), the Applicant bears the burden of establishing that
individuals or entities for whom the FRY bears international responsibility
agreed on a common plan to commit genocide, and shared the same specific
intent as is required for proof of the crime of genocide itself. Proof of the
existence of a conspiracy does not require proof that genocide was actually
carried out.
9.50 Taken together the findings of the ICTY in the Martić and Babić
cases establish that there was a conspiracy between Serb leaders, including
Slobodan Milošević, Milan Martić, Milan Babić, Franko Simatović, Jovica
Stanišić, Vojislav Šešelj, Goran Hadžić, and Ratko Mladić to commit crimes
against humanity involving a widespread and systematic attack on the Croat
civilian population through the perpetration of acts prohibited byArticle II of
the Genocide Convention. The sole issue for the Court to determine therefore
is whether the criminal agreement proved in Martić, and admitted in Babić,
takeninconjunctionwiththewiderpatternofcrimesdisclosedbytheevidence
in the Memorial and this reply, must have contemplated crimes on a scale, or
of such significance, as to demonstrate an intention to destroy a protected
group in whole or in part.
9.51 The OTPof the ICTYhas not alleged that genocide was encompassed
within the objects of the criminal conspiracy which undoubtedly existed
between the members of the Serb leadership responsible for the military
campaign. That cannot however be dispositive. The ICTY has never been
called upon to reach a finding of fact, one way or the other, as to the existence
of an agreement to commit genocide in Croatia. That now falls to the ICJ. In
light of the findings of the ICTY, however, there can be no reasonable doubt
that a criminal agreement or conspiracy existed among the Serb leadership;
that the agreement envisaged the commission of widespread and systematic
crimes (including murder, infliction of serious bodily and psychological harm,
torture, unlawful detention in inhumane conditions, persecution and forcible
deportation) against the Croat civilian population of the identified regions;
and that its objectives included the wholesale eradication of the Croat civilian
population of those areas, in order to establish an “ethnically pure” Serb-
dominated state. The remaining question is one of legal categorisation. The
Court must determine whether, having regard to the factual findings of the
Volume 9.indd 318 12/14/2010 2:45:36 PM 319
ICTY, taken in conjunction with the totality of the evidence now available to
the ICJ, the scale or significance of the crimes envisaged by this agreement
was sufficient to amount to genocide.
(2) d i r T a n dp u b l iicn cTie T e n
9.52 The parties are agreed that the crime of direct and public incitement
contrary to Article III(c) requires proof that an individual or entity for whose
acts the State is responsible has directly provoked the perpetrators to commit
genocidewhilstsharingthesamespecificintenttodestroytheprotectedgroup,
in whole or in part. In its Memorial the Applicant set out a series of public
statements which it alleges amount to a crime contrary toArticle III(c). 106This
evidence has been supplemented by the evidence summarised in Chapter 3 of
this Reply, and in particular the report by Professor de la Brosse, submitted by
theOTPasevidenceintheMiloševićtrialwhichdemonstratesthemanipulation
of the media by the members of the Serbian joint criminal enterprise in order
to justify ethnic cleansing (a single state for “all Serbs”) and prepare the Serb
population for the perpetration of genocide. 107 In addition, the Applicant
recalls that in the Babić case, it was agreed that the accused, in his capacity
as a senior official (and President) of the SAO Krajina, had participated in the
JCE with Milošević, and other members of the Serb leadership, by inter alia,
making ethnically inflammatory speeches aimed at fomenting an atmosphere
of fear and hatred amongst the Serb population of the region. 108 In the context
of the other evidence in the case, this must be considered as further evidence
of direct and public incitement to genocide.
(3)a T Te m pT
9.53 The Applicant has nothing to add to the submissions made in its
Memorial concerning the crime of attempt contrary to Article II(d), save that
it agrees with the Court in its Bosnia judgment that the issue of attempt will
arise only in a case where the Court has concluded that genocide did not in
fact occur in respect of certain areas and acts.
(4) c o m p l Tic
9.54 In its Bosnia judgment the Court held that the crime of complicity
in genocide contrary to Article III(e) requires proof that a person or entity
for whom the State bears international responsibility was guilty of planning,
ordering or otherwise aiding and abetting in the planning, preparation or
execution of the crime.This would include the provision of means to enable or
109
facilitate the commission of the crime. Unlike other inchoate offences, the
106 Memorial, paras. 8.23 - 26.
107 Annex 106.
108 Babić, para. 24.
109 Bosnia, para. 419.
Volume 9.indd 319 12/14/2010 2:45:36 PM 320
crime of complicity requires proof that genocide has actually occurred. The
Court summarised the elements of the crime of conspiracy in the Bosnia case,
holding that “there cannot be a finding of complicity against a State unless
at the least its organs were aware that genocide was about to be committed
or was under way, and if the aid and assistance supplied, from the moment
they became so aware onwards, to the perpetrators of the criminal acts or to
those who were on the point 110committing them, enabled or facilitated the
commission of the acts.”
9.55 In its Memorial the Applicant identified a number of acts alleged to
111
amount to complicity in genocide, submitting that the crime of complicity
does not require proof that the secondary (complicit) party had the same
specific intent as the principal perpetrator.112 The Court left this latter question
open in its Bosnia judgment, holding that “the conduct of an organ or a person
furnishing aid or assistance to a perpetrator of the crime of genocide cannot
be treated as complicit in genocide unless at least that organ or person acted
knowingly, that is to say, in particular, was aware of the specific intent (dolus
specialis)oftheprincipalperpetrator.” 11TheApplicantmaintainstheposition
takeninitsMemorial: Apersonisguiltyofcomplicityingenocideiftheyplan,
order, aid or abet, or provide the means to enable or facilitate the commission
of crime of genocide, knowing that it was the principal perpetrator’s intention
to destroy a protected group in whole or in part.
9.56 It is clear that the actus reus of the crime of complicity (the provision
of aid and assistance to facilitate the commission of crimes against a civilian
population) has been established. The ICTY has found as a fact that forces
underthedirectcontrolofSlobodanMilošević,MilanMartićandMilanBabić
acted in co-operation with paramilitary groups to achieve the objectives of the
JCE:
1. TheMiloševićIndictmentallegedthat,alongwithandthroughthe
other participants of the JCE Slobodan Milošević had “directed,
commanded, controlled or otherwise provided substantial
assistance or support to the JNA, the Serb-run TO staff, and
volunteer forces” in the commission of crimes against humanity
and war crimes targeting the Croat civilian population. 114 It
was alleged that these crimes were committed by “Serb forces
comprised of the JNA, TO and volunteer units including the
‘White Eagles’, ‘Šešelj’s Men’, ‘Dušan Silni’ and ‘Arkan’s
Tigers’, in co-operation with police units including ‘Martić’s
110 Ibid., para. 431.
111 Memorial, para. 8.30.
112 Memorial, para. 8.31.
113 Bosnia, para. 421.
114 Milošević, Indictment, para. 26(j).
Volume 9.indd 320 12/14/2010 2:45:36 PM 321
Police’, SNB and Serbian MUP, and others under the effective
control of Slobodan Milošević or other participants in the joint
criminal enterprise”. 115The ICTY’s judgment in the Martić case
confirmstheexistenceofthisjointcriminalenterpriseasafinding
of fact.
2. Similarly, in the Babić case, it was part of the agreed factual basis
of plea that in carrying out the JCE with Milošević, and through
his senior position within the SAO Krajina, Babić had been
personally responsible for the provision of financial, material and
logisticalsupporttotheforcescarryingoutthemilitarycampaign
through which the JCE was implemented. 116
9.57 These judicial findings are sufficient to establish the actus reus of
the crime of complicity since in each case individuals for whom the FRY
bears international responsibility have been convicted of an agreement to put
substantial military and other resources at the disposal of the perpetrators of
crimesagainsthumanity.Thequestionswhichremainare(a)whetherthetotality
of these crimes in fact amounted to genocide, and (b) whether individuals
for whom the FRY bears international responsibility provided assistance in
the knowledge of the genocidal intent of the principal perpetrators. As to the
former, the Applicant adopts the submissions outlined above concerning the
scale and significance of the attack on the civilian population. As to the latter,
the judicial decisions of the ICTYin Martić and Babić establish beyond doubt
that individuals for whom the FRYbears international responsibility were not
only aware of, but were party to, a criminal agreement to commit the crimes
alleged.
SECTION III:ATTRIBUTION
(1) G e n e r aplr i n c iefsaT Tr i Ti o n
9.58 In its Bosnia judgment the Court held that in order to prove State
responsibility, it is necessary for the party alleging genocide to “clearly
establish”117 either (a) that the entities that committed the genocide were
organs of the Serbian state or (b) that they were acting on the instructions of
an organ of the State or under the effective direction and control of such an
organ.118 If attribution is established according to any one of these principles,
the State will be responsible for the conduct even if it occurs beyond its
national boundaries, 119 and it is irrelevant that the conduct may have been
performed in excess of authority.
115
116 Ibid., para. 68.
Babić, para. 24.
117 Bosnia, para. 209.
118 Ibid., paras. 385-415.
119 Namibia, para. 118
Volume 9.indd 321 12/14/2010 2:45:37 PM 322
9.59 The question whether an entity is an organ of the state is primarily to
120
bedeterminedaccordingtotheinternallawofthestateconcerned. However,
the Court held that it would, in certain limited circumstances, be permissible
to go behind the characterisation of a particular organ in internal law, and to
attribute international responsibility to a State for acts committed by persons
or groups who, while they do not have the legal status of State organs, in
fact act “under such strict control by the State that they must be treated as
its organs for the purposes of the necessary attribution leading to the State’s
responsibility for an internationally wrongful act”. 121The Court endorsed the
test laid down in the Case concerning Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v United States of America) (Merits,
Judgment, ICJ Reports 1986 pp 62-64), (“the Nicaragua case”) namely that
in order to attribute responsibility to a State for the acts of entities that did
not constitute organs of the State under internal law, it would be necessary to
show that the relationship of the perpetrator to the State was “so much one of
dependence on the one side and control on the other that it would be right to
equate [the perpetrator], for legal purposes, with an organ of [the State], or as
acting on behalf of [the State]”.
9.60 Adopting this formulation, the Court in its Bosnia judgment held
that “persons, groups or entities may, for the purposes of international
responsibility, be equated with State organs even if that status does not follow
from internal law, provided that in fact the persons, groups or entities act in
‘complete dependence’ on the State, of which they are ultimately merely the
instruments”. 122 This requires the Court to look beyond legal formality, and
to “grasp the reality of the relationship between the person taking action, and
the State to which he is so closely attached as to appear to be nothing more
123
than its agent”. The purpose of this approach is to prevent States from
evading international responsibility by taking action through entities whose
independenceispurelyfictitious. 124TheattributionofStateresponsibilityunder
this doctrine would be exceptional since it requires proof of a “particularly
great degree” of State control over a perpetrator amounting to “complete
dependence”, 125 and carries the implication that the State is responsible for
all actions committed by the person or entity concerned (and not merely the
particular acts relied upon as amounting to genocide). 126
9.61 If the perpetrator was neither an organ of the State according to
its own internal law, nor a person or entity in a relationship of “complete
120 Article 4 of the ILCArticles on State Responsibility; Bosnia, para. 386.
121 Bosnia, paras. 391 - 393.
122
123 Ibid., para. 392.
Ibid..
124 Ibid..
125 Ibid., para. 393.
126 Ibid., para. 397.
Volume 9.indd 322 12/14/2010 2:45:37 PM 323
dependence”, so as to amount to a de facto organ of the State, responsibility
for the perpetrator’s actions may nevertheless be attributable to a State if the
acts alleged were committed on the instructions of, or under the direction and
controlof,apersonorentitythatwasanorganoftheStateinthesensedescribed
above. 127 This requires the Court to look at the specific circumstances of each
alleged act of genocide rather than at the general relationship between the
perpetrator and the State. Under this doctrine, international responsibility is
attributedtoaState“owingtotheconductofthoseofitsownorganswhichgave
the instructions or exercised the control resulting in the commission of acts in
breachof itsinternationalobligations”. 128Thequestiontobedeterminedinthe
present case therefore is whether organs of the Serbian State “originated” the
genocidebyissuinginstructionstotheperpetrators,orexercisingdirectionand
129
control. In the Nicaragua case, the Court held that under this test, it would
be necessary to prove that the State “had effective control of the military or
paramilitary operations in the course of which the alleged violations were
130
committed.” It is not sufficient to show that the perpetrators were under the
control of the State “generally in respect of [their] overall actions”. 131 On the
other hand, it is not necessary to prove that the perpetrator was in a general
relationship of “dependence” on the State. 132 Rather, it must be shown, in
relation to each incident under examination (considered separately) that in
committing an act amounting to genocide the perpetrator was acting on the
instructions, or under the direction and control, of the State concerned▯. 133
(2)a p p l i i o nTo Th ef a Ts
9.62 In the Applicant’s submission, the judgments of the ICTY leave
no room for doubt that the Serb leadership had effective control over all of
the military operations which are the subject of the Applicant’s complaint
under the Genocide Convention, and over the acts and conduct of all of the
perpetrators. The ICTY has found as a fact that the participation of the TO
(volunteer groups), the Milicija Krajine, the MUP, and paramilitary groups
in the commission of the crimes in Croatia invariably occurred under the
direction and control of the JNA. The ICTYhas also found that the JNA, in its
turn, was operating under the direction and control of Milošević and the other
members of the Serb political and military leadership who were party to the
joint criminal enterprise. For the reasons set out in Chapter 7 and summarised
below, the FRYis internationally responsible for the acts of Milošević and the
other members of the Serb leadership during the entire period to which the
present claim relates.
127 Article 8 of the ILC Articles on State Responsibility; Bosnia, para. 397.
128 Bosnia, para. 397.
129 Ibid., para. 397.
130
131 Nicaragua, para. 115 (emphasis added).
Bosnia, para. 400.
132 Ibid., para. 400.
133 Ibid., para. 400.
Volume 9.indd 323 12/14/2010 2:45:37 PM 324
9.63 The joint criminal enterprise the “JCE” alleged in the Milošević
Indictment was found proved in the Martić case. The allegation against
MiloševićwasthathehadbeenpartytoacriminalagreementwithMilanMartić,
Milan Babić, Veljko Kadijević and others, which involved the commission of
crimes against humanity were committed by Serb forces comprised of the
JNA, theTO and volunteer units including the ‘White Eagles’, ‘Šešelj’s Men’,
‘Dušan Silni’and ‘Arkan’sTigers’, in co-operation with police units including
‘Martić’s Police’, SNB and Serbian MUP. The Milošević Indictment alleged
that all of these groups operated under the “effective control of Slobodan
Milošević or other participants in the joint criminal enterprise.” 134 It alleged
that Milošević, along with and through the other participants of the JCE
“directed,commanded,controlledorotherwiseprovidedsubstantialassistance
or support to the JNA, the Serb-run TO staff, and volunteer forces.” 135
9.64 If the Applicant is correct that the crimes committed in Croatia,
viewedcumulatively,provegenocidalintent,thenthequestionofattributionis
straightforward. The JCE alleged and found proved in the ICTY proceedings
is sufficient to establish that the Serb leadership is responsible under the
Genocide Convention for all of the combined military operations in Croatia
by which the members of the JCE inflicted widespread and systematic crimes
on the Croat civilian population. The ICTY had found that these crimes were
committed under the direction and control of the JNA, and that all perpetrators
participated in military operations on the instructions of, or under the effective
directionandcontrolof,MiloševićandtheothermembersoftheSerbleadership
for whose criminal acts the FRY is internationally responsible. Applying the
criteria adopted by the Court in the Bosnia case, this is sufficient to establish
attribution.
9.65 In Martić the ICTYheld that during the summer and autumn of 1991,
numerous attacks were carried out on Croat majority villages by the JNA
“acting in coordination with the TO and the Milicija Krajine”. The Chamber
found as a fact that the Serbian leadership armed and financed the armed
forces of the ‘SAO Krajina’, made up of the TO and the Milicija Krajine, and
co-operated with the JNAin organising operations on the ground. 136Similarly,
the agreed basis of plea in the Babić case acknowledged that the combined
Serb forces responsible for the commission of crimes in the ‘SAO Krajina’,
pursuant to the JCE, comprised the JNA, TO, MUP police and paramilitary
units, acting in concert.
9.66 Subject to the temporal issue addressed in Chapter 7 (and summarised
below)theApplicantaccordinglysubmitsthatattributionisclearlyestablished.
134
135Milošević, Indictment, para. 68.
136Ibid., para. 26(j).
Martić, para. 344.
Volume 9.indd 324 12/14/2010 2:45:37 PM 325
According to the findings of the ICTY all relevant military operations were
conducted under the command and control of the JNA; and the forces of the
JNA are to be regarded as organs of the FRY (or at the very least as being
under the direction, command and control of the Serb leadership for whose
acts the FRY is internationally responsible) applying the test laid down by the
Court in the Bosnia case.
(3) sTaTe r e s p o n s i i o rTh ea cTs o fTh Jna
9.67 In Chapter VI of its Counter-Memorial the Respondent argues that
according to its own internal law the JNAwas an organ of the SFRYfor which
137
the FRY bears no international responsibility. This stance cannot, however,
be maintained in the face of the findings of the ICTY. The Trial Chamber
in the Martić case found as a fact that that the SFRY Federal Secretary for
Defence, General Veljko Kadijević (who bore overall responsibility for JNA
deployment in Croatia) was himself a party to a joint criminal enterprise with
the leadership of ‘SAO Krajina’ (Martić and Babić) and with the Serbian
leadership under Slobodan Milošević. This important finding is sufficient to
establish that the JNAwas at the relevant time, operating under the command
and control of the FRY leadership. The Chamber also found that by August
1991 the JNA was operating as a Serbian army, rather than a Yugoslav army.
On the findings of the ICTY the JNA was subordinated to the command of
Milošević and the leadership of what was to become the FRY. Accordingly, if
the JNAis not to be regarded as a de jure organ of the FRY, it is to be regarded
as a de facto organ of the FRY, or at the very least as having operated at all
relevant times, and in respect of all military operations, under the direction
and control of the Serbian leadership under Milošević, for whose acts the FRY
is internationally responsible.
9.68 The Trial Chamber in the Martić case found as a fact that from
the date of the Serb attack on the predominantly Croat village of Kijevo in
August 1991, the ‘SAO Krajina’MUP and TO forces were operating in open
co-operation with the JNA. 138 The Chamber held that the decision to attack
Kijevo was taken by Milan Martić in coordination with the JNA. The attack
was carried out by units of the JNA 9th Corps in Knin, the Milicija Krajine
and the local TO. The Trial Chamber found it established that there was co-
ordination between the JNA and the SAO Krajina MUP (‘Martić’s Polic139,
and that the JNAwas in command of the participating forces.”
9.69 The Chamber in the Martić case concluded that “as of this point in
time, the JNAwas firmly involved on the side of the SAO Krajina authorities
137Counter-Memorial, para. 604.
138Martić, para. 443. See also ‘Balkan Battlegrounds’ Report, Vol. II, pp. 90-91.
139Ibid., paras. 166-167.
Volume 9.indd 325 12/14/2010 2:45:37 PM 326
in the struggle to take control of territory in order to unite predominantly
Serb areas.” 140The Chamber noted that General Kadijević had described the
principal purpose of JNA deployment in Croatia as being “full co-ordination
with Serb insurgents in the Serbian Krajina.” 141It went on to find as a fact that
by the “end of the summer 1991 and coinciding with the attack on Kijevo, the
142
JNAbecameanactiveparticipantinCroatiaonthesideoftheSAOKrajina.”
Perhaps most significantly in this context the Chamber found, as noted above,
that Kadijević was himself party to a joint criminal enterprise with Martić,
Babić and Milošević. In light of these findings, the stance of FRY (that the
JNA was an organ of the SFRY, the actions of which cannot be attributed to
the FRY leadership) is unsustainable.
9.70 In addition to the judgments of the ICTY, the Applicant has produced
a substantial body of evidence, including testimony from witnesses, copies of
JNAand other military orders and regulations, extracts from memoirs of those
directly involved within the Serbian/FRY political and military leadership,
press articles (including numerous articles from the official JNA newspaper
Narodna Armija) and videotape evidence, which together demonstrate
conclusively that the JNA was implicated in numerous military operations
identifiedintheseproceedingswhich,intheApplicant’ssubmission,amounted
143
to violations of the Genocide Convention. TheApplicant has adduced clear
evidence (which has not been rebutted by the Respondent) establishing that
JNA forces took a direct part in the attacks on, inter alia: Tenja; Dalj; Berak;
Šarengrad; Ilok; Tompojevci; Bapska; Tovarnik; Sotin; Lovas; Tordinici;
Vukovar; Pakrac; Podravska Slatina; Daruvar; Glina; Petrinja; Hrvatska
144
Kostajnica;Vrginmost; Slunj; Ogulin (Saborsko); Poljanak; and Drniš.
(4) Jna c o m m a ndn dc o Tr o lo v e rThTo, Th e M ilicijK r a j ,ea n dTh e
mup
9.71 The Trial Chamber in the Martić and Mrkšić et al cases found as a
fact that the doctrine of “unified command and subordination” under which
the JNAoperated, meant in practice that the JNAhad effective command and
control of all joint military operations with the forces of the ‘SAO Krajina’
(Milicija Krajina, the TO, the “Martić Police” or paramilitary forces). The
ICTY, applying a criminal standard of proof, has thus held that each of
the military operations which form the basis of the Applicant’s case were
conducted under the command and control of the JNA(which was itself under
the direct command and control of what was to become the leadership of the
FRY).
140
141 Ibid., para 443.
Ibid., para. 330.
142 Ibid., para. 330.
143 Chapter 3, 4, 5 and 6, supra.
144 Chapters 5 and 6, supra.
Volume 9.indd 326 12/14/2010 2:45:37 PM 327
9.72 The JNA’s involvement often took the form of securing or blockading
a town or village in which atrocities then took place with the deliberate aim
of enabling the Milicija Krajina, the TO, the “Martić Police” or paramilitary
forces to carry out the acts in question. The Trial Chamber in the Mrkšić et al
case described the typical pattern of attacks on Croat towns and villages as
involving encirclement and shelling by the JNA, followed by entry into the
area by Serb paramilitaries. TheApplicant has adduced clear evidence (which
hasnotbeenrebuttedbytheRespondent)establishingthattheMilicijaKrajina,
the TO, the “Martić Police” or paramilitary forces acting in conjunction with,
or under the command and control of the JNA, took part in the attacks on,
inter alia: Tenja; Dalj; Lovas; Vukovar; Podravska Slatina; Glina; Petrinja;
145
Hrvatska Kostajnica; Slunj; Ogulin (Saborsko); Poljanak; and Drniš.▯
9.73 IntheMartićcasetheICTYfoundthat,underthe“LawonAllPeople’s
Defence,” the JNAand theTO were the two constituent elements of the armed
forces of the former Yugoslavia. The Chamber held that from the end of the
Summer of 1991 the armed forces of the SAO Krajina TO were subordinated
146
to the JNA, and that the TO was reinforced by volunteer units, often formed
under the auspices of political organisations. The Chamber noted that such
volunteer groups were often referred to as “paramilitaries” and it used that
term in the judgment.
9.74 The Chamber in the Mrkšić et al case found that that under the
constitutional arrangements which had operated in the SFRY, there was to
be “unity of command” over the JNA and TO units; that in situations where
JNA and TO forces were engaged in joint combat operations, they were
routinely integrated and subordinated to one com147ding officer responsible
for commanding all military units in that area. The Chamber confirmed that,
during the conflict in 1991 the Serb TO units (and “volunteer” paramilitaries)
inCroatiawereoperatingunderthecommandandcontroloftheJNAsuchthat,
in practice, JNAofficers were in command of all joint combat operations. The
Chamber’s overall conclusion was that all Serb forces operating in Croatia,
including irregular and paramilitary groups, did so under the command
control of the JNA, and were permitted to operate only to the extent that they
were subordinated to JNAcommand. In relation to a range of military orders
confirming this analysis, the Chamber observed that:
“They serve to confirm that what had been established as the de facto
reality, not only in the zone of operations of OG South, but, generally,
in the Serb military operations in Croatia, was the complete command
and full control by the JNA of all military operations. This, in the
145
146Chapters 5 and 6, supra.
147Martić, para. 142.
Mrkšić et al., para. 84.
Volume 9.indd 327 12/14/2010 2:45:37 PM 328
Chamber’s finding, reflects the reality of what had been established.
It was a reality, which the JNA had the military might to enforce, even
though it may well have been reluctant to be too heavy handed in doing
so, against TO and volunteer or paramilitary units fighting in the Serb
cause. As the order of 1 MD made clear, paramilitary units refusing to
submit themselves under the command of the JNAwere to be removed
from the territory i.e. from the respective zone of responsibility of the
JNAcommand.” 148
9.75 The Counter-Memorial seeks to present the Milicija Krajina and
the TO forces of the Serb “autonomous regions” as independent of the FRY
leadership, operating under the control of independent regional authorities. 149
It suggests that these forces could only be subordinated to the JNA with the
150
prior approval of the regional authorities. Again, this stance cannot be
reconciled with the findings of the ICTY. Not only were Milan Martić and
Milan Babić (both high ranking officials of the ‘SAO Krajina’) convicted of
being party to a joint criminal enterprise with Slobodan Milošević and other
members of the FRY leadership (including the SFRY Federal Secretary for
Defence, General Veljko Kadijević who had overall responsibility for JNA
deployment in Croatia), but the ICTY has also found as a fact that all of the
forces of the “autonomous regions” (including the Milicija Krajina and the
TO) were effectively subordinated to the JNA in all joint military operations,
and that the JNAwas itself under the direct command and control of the FRY
leadership. The ICTY Trial Chamber in the Martić case also found as a fact
that the MUP operating in the Serb autonomous regions were financed and
151
equipped by the MUP and RDB of Serbia; that its units were subordinated
to the JNA for specific assignments; and that when this occurred they would
be under JNA command. 152On the basis of these findings (and subject to the
temporal issue addressed below) the FRY is responsible for the acts of each
component element of the armed forces engaged on the Serbian side in the
armed conflict in Croatia in 1991 and 1992.
(5) Jna c o m m a ndn dc o nTr o lo fn o -e n l se dp a r a m air yGr o u p s
9.76 The ICTY in the Martić case found as a fact that the JNA exercised
effective command and control not only over the official (enlisted) forces of
the regional authorities (Milicija Krajina, the TO and the MUP) but also over
theirregularparamilitarygroupsthatwerenotformallyintegratedintotheTO.
Itisestimatedthattherewere32different“volunteer”(orparamilitary)groups
153
operating in Croatia in the period 1990-97. The Final Report of the United
148
Ibid., para 89.
149Counter-Memorial, paras. 610-612.
150Counter-Memorial, para. 613.
151Martić, paras. 140-141.
152Ibid., para. 142.
153
Memorial, paras. 3.47-49.
Volume 9.indd 328 12/14/2010 2:45:37 PM 329
Nations Commission of Experts established pursuant to Security Council
Resolution 780(1992) identified four categories of paramilitary forces: 154
special forces (operating with substantial autonomy under the command of an
identified leader), militias (members of former TO forces), paramilitary units
(operating under the command of a local leader) and police augmented by
armed civilians (operating under local leadership reportedly under the control
of the Ministry of Interior or other political organisations).
9.77 The Respondent alleges that the Applicant has failed to distinguish
between the various “volunteer” and paramilitary groups, and has accordingly
failed to prove that all or any of them was operating under the effective
155
direction and control of the Serbian leadership and the JNA. Again, this
stancecannotbemaintainedinthefaceofthejudgmentsoftheICTY.TheTrial
Chamber in the Martić and Mrkšić et al cases has found the JNA exercised
effective command and control of all joint military operations with the all
forces fighting on the side of the ‘SAO Krajina’ including the non-enlisted
paramilitary groups such as those listed in the Milošević Indictment. In the
light of this finding it is unnecessary (and indeed impossible) to identify each
group individually and attribute particular crimes to them. It is sufficient that
all such groups were only permitted to operate, and to take part in military
operations if, and to the extent that, they operated under the command and
control of the JNA. That factual finding of the ICTY is entitled to very great
weight (reached as it was by a tribunal charged with determining the facts,
following an adversarial hearing, and on a criminal standard of proof) and is
sufficient to establish attribution in respect of all the perpetrators that took part
in each of the military operations at issue in these proceedings.
9.78 Nonetheless, the Applicant would draw the Court’s attention to the
following matters in relation to FRYresponsibility for the acts of paramilitary
groups operating in Croatia:
1. There is clear evidence that a number of Serb paramilitary groups
includingArkan’sTigers and those operating under ‘Captain Dragan’,
were ‘controlled by the Ministry of Interior (MUP) of the Republic of
Serbia’.156
2. TheevidencedisclosesaparticularlycloseconnectionbetweenŽeljko
Ražnatović (‘Arkan’), and the FRY leadership. 157
158
3. TheApplicanthasshowninitsMemorial thatvolunteerparamilitary
154Memorial, para. 3.49.
155Counter-Memorial, paras. 572-573, and 607-608.
156 Theunens Report, 2007, pp. 6-7 paras. 9-10 and see Part 1: Section Three, Part 5 of the
Report, pp. 89-104.
157
158Chapter 4, supra.
Memorial, para. 3.80.
Volume 9.indd 329 12/14/2010 2:45:37 PM 330
groups were integrated into the JNA by an order of the Federal
Secretariat of People’s Defence dated 13 September 1991. This order
confirms that Serbia had, through the JNA, effective control over
159
Serbian paramilitary forces.
9.79 Finally, in this context, theApplicant notes that the Respondent itself
has alleged in its own domestic courts that paramilitary groups operated
in Croatia under the direction and control of the JNA. The Indictment in
the ongoing prosecution of 14 individuals for war crimes in Lovas, Eastern
Slavonia 160 alleges that the “parties to the conflict were the JNA forces
with other armed groups under their command and control”. 161Six of the
accused were members of a volunteer armed group (“Dušan Silni”), four were
local civilian and military leaders, and four were members of the TO then
nd
subordinated to the 2 Proletarian Guards Motorised Brigade of the JNA.All
were said to have acted in concert in committing atrocities in Lovas, including
killings and torture.
(6) T h eTe m p o r assue
9.80 In Chapter IV of its Counter-Memorial the Respondent argues that
any acts or omissions that took place before 27 April 1992 cannot entail its
international responsibility because the State only came into existence on that
date and was not bound by the Genocide Convention prior to it.TheApplicant
comprehensively responds to this argument in Chapter 7 of this Reply.
9.81 For the purposes of this Chapter, it is sufficient to note that there
is nothing either in the wording of the Convention itself, nor in the travaux
préparatoires, which supports any temporal limitation of the type relied upon
by the Respondent. Any such restriction would be contrary to the Court’s
approachtointerpretingtheConvention,whichithasmadeclear,wasintended
to be as broad and universal as possible. The Court has previously ruled,
and recently affirmed, that there is no express limitation ratione temporis in
the Convention. 162The fact that a State is in the process of dissolution does
not absolve the relevant actors of accountability for egregious violations
of international law, particularly where those violations concern jus cogens
norms. 163The acts in question were perpetrated by the FRY or alternatively,
are attributable to Serbia as a self-proclaimed continuator of the personality
159 Theunens Report, 2003, p. 6, para. 7. Theunens refers to the Serbian and SFRY 1991
orders for the registration and acceptance of volunteers into the Serbian TO and JNA.
160 Vujović et al, KV 4/2006; Sireta et al, KV 9/2008; Pašić, KV 4/2007 (see also the Supreme
Court of Serbia decision in the same case: Kz I r z 2/08).
161
162 Ibid..
Bosnia, para. 123.
163 Accordance with International Law of the Unilateral Declaration of Independence in
respect of Kosovo, Advisory Opinion of 22 July 2010, para. 81.
Volume 9.indd 330 12/14/2010 2:45:37 PM 331
of its predecessor or in the alternative, pursuant to the customary rule codified
inArticle 10(2) of the ILCArticles on State Responsibility for Internationally
WrongfulActs.
SECTION IV: THE FRY IS RESPONSIBLE FOR THE FAILURE TO
PREVENTAND PUNISH THE VIOLATIONS OFARTICLES IIAND
III OFTHE CONVENTION
9.82 Article I of the Genocide Convention imposes two “distinct yet
164
connected” positive obligations to prevent and punish genocide. The first
obligation requires the State is to take all steps within its power to ensure that
those within its jurisdiction or subject to its control (whether public officials,
members of the armed forces, or private individuals) do not commit the crime
of genocide. The second is the obligation to ensure that the perpetrators of
genocideandrelatedacts(whethertheyareconstitutionallyresponsiblerulers,
public officials or private citizens) are punished. The Applicant alleges that
the Respondent has breached both of these obligations, and bears the burden
of proving these allegations to a “high level of certainty.” 165
(1) f a i l u eo p r e v eTna cTs o fGe n o c i d e
9.83 The obligation to prevent genocide depends upon proof that acts of
genocide have in fact occurred, and focuses on a State’s responsibility for
failuretointervene. IftheCourtfindsthattheApplicanthasproveditsprimary
case (that the Respondent is directly responsible for the commission of, or
complicity in, acts of genocide) then it is unnecessary to go on to consider the
alleged breach of the duty to prevent acts of genocide (although it will still be
necessary to consider the allegation of failure to punish).
9.84 The obligation to prevent genocide is an obligation of conduct rather
166
than result. The duty of intervention does not require the State to succeed
in preventing genocide, but there will be a breach of the obligation if the State
has failed to take all reasonable means at its disposal to prevent genocide as
far as possible. The obligation arises as soon as the State was, or should have
beenaware,ofaseriousriskthatactsofgenocidearelikelytobecommitted. 167
If this condition is met, State responsibility will be incurred “if the State
manifestly failed to take all measures to prevent genocide which were within
its power, and which might have contributed to preventing the genocide”. 168
9.85 The Court, in its Bosnia judgment held that four factors were relevant
in determining whether a State was responsible for a culpable failure to
prevent genocide:
164
165 Bosnia, paras. 425 and 427.
Ibid., para. 210.
166 Ibid., para. 430.
167 Ibid., paras. 431 and 432.
168 Ibid., para. 430.
Volume 9.indd 331 12/14/2010 2:45:37 PM 332
1. The first is the capacity of the state to influence effectively the actions
of persons likely to commit genocide. This will include questions
of geographical proximity and the strength of political and other links
between the State and the perpetrator. The question of a State’s capacity
to prevent genocide is to be assessed in the light of the fact that a state can
only act within the limits of international law. 169
2. Secondly, where there has been a culpable failure to prevent genocide, it
is no answer for the State to claim or prove that even if it had employed
all the means at its disposal it would not have succeeded in preventing
genocide. This is irrelevant to a breach of an obligation of conduct rather
than result.170
3. Thirdly,aStatecanonlybeheldresponsibleforfailuretopreventgenocide
ifgenocidewasinfactcommitted. Abreachoftheobligationofprevention
obviously crystallises when the commission of the genocide begins.
However, the duty to take preventative measures arises at the instant the
State becomes aware (or should have become aware) of a serious risk that
genocide will be committed. 171
4. Fourthly, and finally, there is a significant difference between complicity
in genocide and the obligation to prevent it. 172 The former requires a
positive act of aid or assistance, whereas the latter results from a mere
failure to adopt or implement suitable measures to prevent it. Complicity
results from commission (in breach of the negative obligation inArticle I
to refrain from perpetrating acts of genocide), whilst a failure to prevent
results from pure omission to act (in breach of the positive obligation
imposed byArticle I). Moreover, complicity requires the provision of aid
or assistance in the perpetration of genocide, with full knowledge of the
facts, whereas the obligation to prevent arises even if the State does not
know for certain that genocide is about to be committed or is underway,
but was or should have been aware of a serious danger that acts genocide
would be committed. 173
9.86 Given the close co-operation between the JNA and the forces
(including volunteer paramilitary forces) of the autonomous Serb authorities,
and in particular given the findings of the ICTY set out above that all
military operations were conducted under the effective command of the JNA,
the Applicant submits that if the Court were to hold that the FRY was not
responsible for the commission of, or complicity in, acts of genocide, it is
nevertheless responsible for a failure to prevent genocide. There can be no
169Ibid., para. 430.
170Ibid., para. 430.
171
172Ibid., para. 431.
173Ibid., para. 432.
Ibid., para. 432.
Volume 9.indd 332 12/14/2010 2:45:38 PM 333
doubt that the JNA military hierarchy, and the Serb political leadership, were
fully aware of a serious risk that acts of genocide were being, or were about
to be, committed. By way of illustration, the Serbian leadership and the JNA
were fully aware that paramilitary groups, including the “Serbian Guard”
under the command of Željko Ražnjatović (known as Arkan, and “Arkan’s
Tigers”) were operating in Eastern Slavonia, and were engaged in what JNA
intelligence described as the perpetration of acts of genocide. By way of
174
example, annexed to this Reply are:
1. A JNA military intelligence report dated 13 October 1991 which
records information provided by the Government of the Republic
of Serbia regarding the establishment of a “Non-Ideological Serbian
Army”. The report confirms that a paramilitary formation called the
“Serbian Guard”, operating underArkan’s command, is taking part in
combat operations against “Ushtasa Soldiery” in Slavonia, Baranja
andWestSrem. ThereportnotesthatArkanreceives“specialattention
and privileged treatment by numerous Ministers and other officials
of the Serbian Government every day”. It goes on to state that in
“the greater area of Vukovar, volunteer troops under the command
of Arkan...are committing uncontrolled genocide and various acts
of terrorism”. It notes that the Commander of the Serbian TO, the
Assistant Minister of Defence has been informed of this.
2. A JNA military intelligence report dated 25 October 1991 which
refers toArkan as “the Commander of the special forces of Slavonia,
Baranja and Western Srem” and which details his operations at a
Centre for Training of Volunteers in Erdut. The report records that
volunteers are being taught that upon entering a Croat house, they
should “kill everything and everyone in the house, including children,
elders, disabled persons, [and] women”; that “most of the volunteers
are criminals”; and thatArkan routinely killed prisoners brought in by
the local territorial units, by beating them to death with baseball bats,
or shooting them in the back of the head.
3. An undated JNA intelligence report detailing knowledge of the
presence and activities of Arkan’s paramilitary unit in Eastern
Slavonia. The report describes Arkan as a professional criminal
who is engaged in crime and controls the criminal “underworld of
Belgrade”. The report details the weaponry, and military vehicles
(including tanks) at his disposal in Croatia, and states that these were
“acquired from the TO, the MUP and the RS (Reserve Force) of the
JNA”. It goes on to note thatArkan is openly supported by the MUP,
the TO and the MNO of the RSK, that he is accepted by certain JNA
st
leaders, that he attends meetings of the 1 VO Command, and that
174Documents concerning Conduct of Arkan in Eastern Slavonia, Annex 63.
Volume 9.indd 333 12/14/2010 2:45:38 PM 334
he is officially subordinated to the 12 Corps. It also refers to his
“activities in liquidating the Croatian population” (emphasis added).
9.87 It is undeniable therefore, that at least from 13 October 1991, the
JNA leadership, and the political leadership of Serbia was (as an absolute
minimum) aware of the activities of Arkan’s paramilitaries, and was aware
that they were committing acts amounting to genocide. The documents cited
above are more than sufficient to establish that, with effect from 13 October
1991 at the latest, the JNA leadership was aware of a serious risk that this
group in particular would commit genocidal acts. In the light of the findings
of the ICTY in the Mrkšić et al case, there can be no doubt that the JNA had
175
the capacity to prevent this. As the Applicant pointed out in its Memorial,
the military capabilities of the JNA far outweighed those of the paramilitary
formations. The JNA had the capacity to protect the Croat civilian population
from genocide.Without JNAcollaboration or consent the paramilitary groups,
including Arkan, would have been unable to mount sustained attacks on
the Croat civilian population. The Trial Chamber in the Mrkšić et al case
expressly found as a fact that the JNA had the “military might to enforce” its
effective command and control of “volunteer or paramilitary units fighting
in the Serb cause” even though it “may well have been reluctant to be too
176
heavy handed in doing so.” Given the military capabilities of the JNA, its
failure to intervene to prevent genocide amounts to breach of Article I which
is attributable to the FRY.
9.88 The significance of the documents referred to in paragraphs 9.86
and 9.87 above is that they establish JNA knowledge of a serious risk that
genocide was being, or would be, perpetrated by paramilitaries, in Croatia
generally, but in the Vukovar area in particular. As the Applicant noted in its
Memorial, Arkan publicly boasted that his paramilitary group would “mop
177
up” after the JNA had shelled “the first line of houses.” There can be no
doubt that the JNA (at the very least) failed to prevent the genocidal “mop
up” in Vukovar. TheApplicant has previously submitted, 178that the extent of
the genocide committed in Vukovar in November 1991 exceeded any other
area during the hostilities. During the three month siege leading up to the
November occupation approximately 1700 people were killed, of whom 70%
were civilians. In convicting Mile Mrkšić of war crimes, the ICTY found
as a fact that 194 civilians, including civilians who had been taken from the
Vukovar hospital, were executed in the grounds of the Ovčara farm on 20
November 1991 and buried in a mass grave. As many as 200 other people
were killed after the occupation of the city.
9.89 Given the evidence of JNAknowledge, at a senior level, of the risk of
175 Memorial, para. 8.63.
176 Supra., para. 9.74.
177 Memorial, para. 8.61
178 Ibid., para. 4.139
Volume 9.indd 334 12/14/2010 2:45:38 PM 335
genocide by Arkan’s Tigers, and given the findings of the ICTYin the Mrkšić
et al case that the JNA had not only the capacity to enforce its command and
control over paramilitaries, but that all paramilitary participation in military
operations in Croatia occurred under the effective command and control of the
JNA, it is clear, as a minimum, that the FRY is guilty of a failure to prevent
acts of genocide within the meaning ofArticle I.
(2) fa i l u eo p u n i hcTs o fGe n o c i d e
9.90 The importance of the obligation in Article I to punish acts of
genocide is reflected throughout the Convention’s provisions. Article IV
requires expressly that persons committing acts of genocide or any of the
other acts enumerated under Article III shall be punished, “whether they
are constitutionally responsible rulers, public officials or private citizens”.
ArticleVI requires that persons charged with genocide be tried by a competent
tribunal of the State in the territory of which the act was committed, or by
“such international penal tribunal as may have jurisdiction”. In its Bosnia
judgment, the Court held that the ICTY is an international penal tribunal
within the meaning of Article VI, in relation 179which the Respondent was
under an international duty of co-operation. Accordingly, compliance with
the obligation underArticleVI required the Respondent to co-operate with the
ICTYby handing Indictees over for trial. 180 On the evidence, the Court found
that the Serbian security services had known of the whereabouts of Ratko
Mladić, but had refrained from procuring his arrest because they remained
loyal to him. The Court held that this failure to co-operate with the ICTY
amounted to a violation of the obligation to punish genocide in breach of
Articles I and VI of the Convention. 181
9.91 When the Applicant submitted its Memorial the FRY had failed to
surrender a number of high profile suspects including Slobodan Milošević,
Veslin Šljivančanin, Vojislav Šešelj, and Željko Ražnjatović (Arkan). Since
that time the first three named individuals have been put on trial by the
ICTY and the last has died. However, the Applicant would submit that the
Respondent’s continuing failure to procure the arrest Goran Hadžić, and the
circumstances surrounding the OTP’s failed attempt to secure his surrender
disclose a clear breach of Article VI, and bear a strong resemblance to the
failure of the FRY authorities to procure the arrest and surrender of Ratko
Mladić.
9.92 Goran Hadžić was indicted in 2004 as part of the same JCE as
Milošević.TheIndictmentallegedthatHadžić,asPresidentoftheGovernment
of the self-declared Serbian Autonomous District of Slavonia, Baranja and
Western Srem (“SAO SBWS”) and, later, ‘President’ of the ‘RSK’, was
179Bosnia, para. 445.
180
181Ibid., para. 443.
Ibid., paras. 449-450.
Volume 9.indd 335 12/14/2010 2:45:38 PM 336
guilty of crimes against humanity of persecutions, exterminations, murder,
imprisonment, torture, inhumane acts and deportation, as well as numerous
counts of war crimes.As with Milošević, many of the offences alleged against
Hadžić concerned the Eastern Slavonia region. The Indictment alleges that
HadžićwaspartytoaJCEthatincludedtheSerbianVolunteerGuard(‘Arkan’s
Tigers’) and volunteers related to the Serbian Chetnik Movement, and/or the
Serbian Radical party of Vojislav Šešelj commonly known as ‘Chetniks’.
It alleges that during military operations these groups were integrated in or
related otherwise to the TO of the ‘SAO SBWS’ “all operating under the
command of the JNA”. Hadžić is one of only two outstanding fugitives from
the ICTY (the other being Ratko Mladić).
9.93 The then Prosecutor, Carla del Ponte, gave the following statement to
the press at the time the indictment against Hadžić was made public, setting
out the circumstances in which he evaded arrest on 18 July 2004: 182
“As you know, Goran Hadžić, former president of the so-called
Republika Srpska Krajina, was indicted last week, his indictment
being confirmed by a judge on 4 June 2004.
On Tuesday 13 July at 9h30, we handed over to the Ministry of
Foreign Affairs in Belgrade the indictment against Goran Hadžić,
accompanied by an arrest warrant, both documents being under seal.
We asked the authorities to act with all due diligence and within 72
hours. Indeed, Goran Hadžić had been located in his villa in Novi
Sad. All information pertaining to his location were given to the
authorities.
Thesameday,at11h30,acopyofthisindictmentwasalsotransmitted
to the Embassy of Serbia and Montenegro in The Hague, according to
our usual practice.
At 12.38 that same day, Mr. Hadžić left his house in Novi Sad.
He came back 45 minutes later, at 13h18, and spent the rest of the
afternoon with his family at his home.At 16h29, he left by car, having
taken a bag with him. At 18h50, a driver brought back the car to the
house. He has not returned to this house since that day. My office has
evidence and photographs of those events that could be produced to
the relevant authorities.
That same day, at 15h30, the Ministry of Foreign Affairs transmitted
to the Belgrade District Court the indictment and the arrest warrant,
which was received by that court after working hours.
The following day, Wednesday 14 July, at 9 hour the President of the
182Press Release, 19 July 2004, JP/P.I.S./872-e.
Volume 9.indd 336 12/14/2010 2:45:38 PM 337
Belgrade District Court assigned an investigative judge to validate
the arrest warrant that was then transmitted to the Serbian MUP. As
I indicated, by then, the indictee had left his house. In fact, Goran
Hadžić had fled 17 hours before the police was officially required by
the judiciary to arrest him.
On Thursday 15 July, the police reported to the judge that the accused
could not be found at his current address and that his whereabouts
were unknown. That day, information was leaked to the press and
information pertaining to the sealed indictment against Goran Hadžić
appeared in the Belgrade newspaper InterNacional.
On Friday 16 July, at 9h30, in response to our request, the Belgrade
judge informed us that no information on the current whereabouts of
the accused was available.
At 10 hour, we submitted to the Chambers a motion to lift the Order
for Non-disclosure on the indictment and the arrest warrant. That day,
the Minister of Foreign Affairs of Serbia and Montenegro informed
me by a letter that he had received no advice of any action taken by
the competent authorities.
That afternoon, in conformity with the Chamber’s Order, the
indictment was made public. Indeed, it had become obvious by then
that there was no more ground to keep it sealed in order to facilitate
an arrest, since the accused was aware of its existence and had gone
hiding.
The events of last week constitute the second time since the beginning
of the year, when we actually can see for ourselves indictees, located
bymyOffice,fleeinginahurryjusthoursaftertheBelgradeauthorities
had been requested to act upon arrest warrants.
To date, I am sorry to have to report that there is one more ICTY
fugitive, bringing the total number of accused at large to 22. Most of
them are within the territory of Serbia and Montenegro.
This new failure by the Belgrade Authorities to actually cooperate
with us surprised me particularly, as not even 10 days ago, Serbian
President Boris Tadić in his first presidential speech, said “the
cooperation with The Hague Tribunal is a priority of our foreign and
domestic policy, since it proves our commitment to European values
and represents a basic prerequisite of all European and Euro-Atlantic
integrations”.
The same day, Serbia-Montenegro President Svetozar Marović
Volume 9.indd 337 12/14/2010 2:45:38 PM 338
indicated that “every postponement in cooperation with the ICTYwill
move away Serbia and Montenegro from Europe”.
Foreign minister Vuk Drašković added “Our obligations toward The
Hague court are something that must not be bargained with, they must
be followed through. We don’t want to be an isolated island in the sea
of European democracies.All the excuses have been long spent”.
Ten days ago Serbian Deputy Prime Minister Miroljub Labus also
emphasized that “there would be soon strong evidence of Serbian co-
operation with the Hague Tribunal “. “We are aware that the Tribunal
is not satisfied with our co-operation. We are prepared to undertake
serious steps and measures in order to improve this co-operation….
It is true that the next two months are decisive and that we will have
to provide reliable information on the location of ICTY indictees and
begin implementing the law.”
Yesterday 18 July, Serbian Prime Minister Vojislav Koštunica said
that the cooperation with the Hague Tribunal was “the issue of all
issues’ and that no major issue concerning the state’s status can be
resolved until this issue is resolved.
Those statements renewed our hopes that Serbia-Montenegro would
immediately take concrete actions to cooperate with our requests.
Belgrade is now facing a choice:
either, it puts its actions where its mouth is, and proceeds
immediately with the arrest of Mr Hadžić and his transfer to
The Hague.
or, Belgrade’s promises remain empty. I would then have
no choice but to apply again under Rule 7 bis of the Rules
of procedure and evidence of the Tribunal, that is to say
to request the ICTY President to notify the UN Security
Council of Serbia and Montenegro’s failure to comply with
its obligation under Article 29 of the Statute. Nevertheless,
I sincerely hope that such a situation will be avoided and
that, very soon, in the next hours, the authorities of Serbia
and Montenegro will give us sincere signs of their good will,
and put concrete actions behind their recent encouraging oral
commitments.”
9.94 Goran Hadžić remains at large at the time of writing. The plain
inference from the facts outlined by the Prosecutor is that Hadžić (whose
whereabouts were known to the FRYauthorities and the OTP) was directly or
Volume 9.indd 338 12/14/2010 2:45:38 PM 339
indirectly tipped off by at least one public official of the FRYwho knew of the
sealed Indictment and the imminent plan to arrest him (whether the official(s)
who supplied this information was/were in the Ministry of Foreign Affairs in
Belgrade, or the Serbian Embassy in The Hague). Within three hours of the
first communication of the sealed Indictment to the FRY Hadžić had been
made aware that he had to flee to evade capture and immediately did so. As
the Prosecutor pointed out, this amounts to a clear “failure by the Belgrade
Authorities to actually cooperate with us”. She called on the FRY to proceed
immediately with the arrest of Mr. Hadžić and his transfer to the ICTY. That
demand was not complied with. In the Applicant’s submission, the failure of
the FRY to co-operate, involving (as it must have done) the deliberate tipping
off of a fugitive by a public official in order to frustrate the execution of an
arrest warrant issued by the ICTYamounts to a clear breach ofArticle VI, and
accordingly of Article I as well.
Volume 9.indd 339 12/14/2010 2:45:38 PM 340
Volume 9.indd 340 12/14/2010 2:45:38 PM 341
CHAPTER 10
FACTUAL BACKGROUND:
CROATIA AND THE RSK/SERBIA 1991- 1995
INTRODUCTION
10.1 In Part III of its Counter-Memorial the Respondent has filed a Counter-
Claim to the effect that the Applicant has violated the Genocide Convention.
These counter-claims are entirely without foundation and appear to be
intended to further delay these proceedings.
10.2 The Respondent’s allegations that the Applicant committed genocide
againsttheSerbsinKrajinaarerestrictedtoOperationStorm,thatcommenced
on 4 August 1995. The Respondent makes no allegations of genocidal acts
prior to this date. The Applicant responds to Chapter XII of the Counter-
Memorial for the sake of completeness, even though it contains no allegations
regarding the breaches of obligations under the Genocide Convention. 1The
Respondent’s various allegations of human rights violations in Chapter XII
are denied. In any event, as the Respondent recognises, since the Court only
has jurisdiction under the Genocide Convention such allegations fall outside
2
the jurisdiction of the Court.
10.3 As regards Operation Storm, the Respondent has not made out a
basic case in support of its allegations. Indeed, the Respondent’s approach
is contradictory, alleging that Operation Storm was genocidal in character
notwithstanding the fact that it was planned and executed in the same manner
as Operation Flash, which the Respondent admits was not genocide. In any
event, no genocide occurred and the Applicant accordingly is not responsible
for any violations under the Convention. This is clear in the present and
following Chapters. The Applicant’s response to the Counter-Claim is as
follows:
A. This Chapter provides a factual account of the events that
transpired up to the commencement of Operation Storm.
This is necessary to correct the unsatisfactory, incomplete
and misleading “factual background” provided by the
1 In fact there is only one reference to Genocide in the whole of Chapter XII, where the
Respondent admits that non-Serbs in the ‘RSK’ faced a “very difficult human rights
situation…which was characterised by discrimination, abuse and numerous crimes … (but
not genocide).” Counter-Memorial, para. 1123.
2 Counter-Memorial, para. 211. The same holds true for other allegations of human rights
violations said to have been committed by Croatia against the Serbs in Croatia in Counter-
Memorial, Chapter V, paras 538-559.
Volume 10.indd 341 12/14/2010 2:50:07 PM 342
Respondent.As stated above, Chapter XII does not contain a
single allegation regarding the commission of genocide until
Operation Storm inAugust 1995.
B. Chapter 11 responds to the Respondent’s allegations that the
Applicant committed genocide during Operation Storm and
thereafter, by inter alia deliberately driving persons of Serb
ethnicity out of their homes and expelling them from the area,
looting and burning thier property and killing the Serbs who
remained in the “Krajina”, with intent to destroy a substantial
3
and significant part of the Serb national group in Croatia.
C. Chapter 12 refutes the allegation, which is axiomatic to the
Respondent’s Counter-Claim, that a genocidal plan or policy
was adopted by the Croatian political and military leadership
during a meeting on the island of Brioni on 31 July 1995.
It also refutes the allegation that any inference of genocidal
intent can be drawn from the manner in which Operation
Storm was conducted, from events that are alleged to have
occurredinitsaftermath,orfromthelegislativeandexecutive
policies of the Applicant in relation to the return of the Serb
civilian population of “Krajina”, and the protection of their
civil and political rights.
10.4 Before describing the factual background and the events that led up to
Operation Storm, certain points need to be made about the Respondent’s use
of evidence. First, as stated earlier, the Respondent’s Counter-Memorial is
characterised by numerous misrepresentation of facts and events or they are
described out of context. This approach characterises the entirety of Chapters
XII and XIII of the Counter-Memorial. The political context of the events
in question, their interpretation, the context in which Operation Storm was
launched and the manner in which it was conducted are materially different
from those presented in the Counter-Memorial. These misrepresentations are
identified below.
10.5 Second, after describing facts and events out of context, the Respondent
proceeds to make sweeping deductions and draw erroneous conclusions. The
most blatant example of this is in its description of the Brioni Minutes and the
conclusions it draws therefrom that Operation Storm was genocidal. Third, it
is noteworthy that the Respondent scarcely relies on its official documentation
or the “official records” of the ‘RSK’ to which it no doubt has access. It seeks
to overcome this shortcoming with references to allegedly neutral reports
and foreign sources. Great reliance is placed on inter alia UN reports (that
3
Counter-Memorial, para. 1098.
4 See Chapters 11 and 12 infra.
Volume 10.indd 342 12/14/2010 2:50:08 PM 343
are not annexed); an ICTY indictment from an ongoing case (the evidentiary
value of which is addressed in Chapter 2); and accounts of non-governmental
organisations like the Serb Documentation and Information Centre (“Veritas”)
and the Croatian Helsinki Committee for Human Rights (“CHC”). The
authority and neutrality of these sources, as well as of the CIA publication,
Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990-1995
to which the Counter-Claim makes repeated reference, is dealt with in Chapter
5
2, and is also touched upon below. The Respondent’s lack of reliance on its
own internal documents is noteworthy and raises numerous questions. As the
catalystforandprimaryparticipantinalltheeventsrelatingtothepresentcase,
the Respondent has access to its own archives and official documents (e.g.
official and military documents) relating to all the events and these documents
arethesubjectoftheApplicant’sdocumentrequestthathasonlybeenpartially
6
fulfilled. However, the Respondent has chosen not to make reference to any
of these materials. It is submitted that through this reticence the Respondent
seeks to achieve three goals: (a) to create an illusion of “objectivity” in its
presentation; (b) to demonstrate its role as a “victim” against whom unjust and
unfounded accusations have been made and (c) to prevent access to all official
documentation that would contribute to the establishment of its responsibility
for genocide in Croatia, by demonstrating that it directed, commanded and
controlled the events that transpired. An example of the documents that the
Respondent fails to annex is the Report on the Causes and Manner of the Fall
7
ofWestern Slavonia, produced by rebel Serbs on 11 July 1995. Its importance
cannot be underestimated, as is set out below.
10.6 In any event, the Respondent admits that the overview contained in its
Chapter XII “is by no means exhaustive and does not attempt to discuss all the
details of almost 4 years of tensions, armed clashes, and negotiations between
8
the parties.” The Respondent is correct: it fails to address matters that are
highly relevant. By choosing this path it undermines its own case.
***
10.7 This Chapter is organized as follows:
Section I addresses a number of preliminary matters in relation to the
Respondent’s Counter-Claims.
Section II describes the details of the Vance Plan and the conditions
of the Croats living in the United Nations Protected Areas (UNPAs).
Developing on the facts set out in Chapter 3, it reflects upon the
5 See Chapter 2, para. 2.65 et seq.
6 See Chapter 2, para. 2.85 et seq.
7 RSK, State Fact-Finding Commission, Report on the Causes and Manner of the Fall of
Western Slavonia, 11 July 1995, Annex 140. See para. 10.88 et seq.
8 Counter-Memorial, para. 1160.
Volume 10.indd 343 12/14/2010 2:50:08 PM 344
Respondent’s continuing support to the rebel Serbs and explains how
the rebel Serbs failed to comply with the Vance Plan from its very
inception, a fact that the Respondent admits. It also touches upon the
events in Maslenica and Medak.
SectionIIIdescribesCroatia’scontinuingeffortstoarriveatapeaceful
settlement with the rebel Serb leadership, and sets out the difficulties
Croatia experienced as the rebel Serb leadership pursued unification
with FRY/Serbia and the Republika Srpska in Bosnia-Hercegovina
(BH).
Section V describes Operation Flash and the events that followed.
SECTION I: PRELIMINARY ISSUES
10.8 TheRespondent’sarguesthattheApplicant’sclaimandtheRespondent’s
Counter-Claimarebasedonthesame“factualcomplex”andonfactsthathave
a “common territorial and temporal setting”. This is strongly rejected. 9
10.9 The Applicant’s claim does not arise out of a conflict between
the “Croatian armed forces and the armed forces of the Republika Srpska
Krajina”, as suggested by the Respondent. Rather, it arises out of the conflict
between the FRY/Serbia and Croatia, which was a part of the political process
triggered by the breakdown of former Yugoslavia. This did not start in mid-
1991, as the Responden claims, but earlier. The Respondent, together with
the JNA, supported the Serb rebellion in Croatia from 1990 onwards. After
the proclamation of the FRY (Serbia and Montenegro) in 1992, this entity
and its army continued to control and support the rebellion and the ‘RSK’,
until 1995. In legal terms, the entire process was set off by the adoption
of the Constitution of Serbia in September 1990, a year before Croatia’s
proclamation of independence.Through this new Constitution the Respondent
10
in effect declared its independence. It took responsibility over its territorial
integrity and international relations, defence and security, and declared that
11
its President would command the Armed Forces in peacetime and in war.
Serbian jurist Srđa Popović understood this act, amongst others, as referring
to the “fact of the existence of an independent and sovereign Serbia.” 12
9 Counter-Memorial, paras. 1108-1109.
10 See Chapter 7, para. 7.45 et seq.
11
Constitution of the the Republic of Serbia, adopted in 1990. Article 72 provided that the
Republic of Serbia would regulate and provide for the the following:
1) sovereignty, independence and territorial integrity of the Republic of Serbia
and its international position and relations with other states and international
organisations; ...
2) defence and security of the Republic of Serbia.
See also Article 83(5).
1 Quoted by: M. Antić, Teorija nadmoći i rat na teritoriju bivše Jugoslavijtheory of
predominance and the war on the territory of the former Yugoslavia], Politička misao, Vol.
Volume 10.indd 344 12/14/2010 2:50:08 PM 345
Together with the removal of the autonomy of the provinces of Kosovo and
Vojvodina, this marked the prelude to the Respondent’s total takeover of the
federal institutions of the SFRY and their subsequent transformation and use
to achieve the goal of a Greater Serbia for all Serbs. 13
10.10 The Respondent also argues that the Claim and Counter-Claim both
relate to the same geographical area - commonly referred to as the “Krajina”
region of Croatia 14- that the Respondent equates with the Serb occupied
15
territories of Croatia, and that it projects as the “roots of everything Serbian”
in Croatia. 16 The Respondent seeks to project this area as historically,
geographically and ethnically distinct from the rest of Croatia. This is wrong.
No region called the “Krajina” ever existed in the territory of Croatia. From a
historical and geographical perspective, the Vojna Krajina (Military Krajina)
was the border separating the Hapsburg and Ottomon Empires and was spread
over a considerably larger area than the rebel Serb occupied territories and
17
the inhabitants of the region were both Serbs and Croats. A map of the
Vojna Krajina is set out inAnnex 147. Similarly, throughout history and more
recently, Serbs lived and worked in other areas in Croatia, and numerous
Croatiancitizens,representingdifferentethnicities,livedinKrajina.According
to the last census conducted inYugoslavia in 1991, the areas that later came to
be occupied and held by the rebel Serbs and the JNA (the area of the ‘RSK’)
were inhabited by 287,830 Serbs (52.4% of the population). The rest of the
19
population was made up of Croats and people of other ethnicities. Later, as a
result of the Serb aggression in 1991 a majority of the Croats fled from these
areas and the population demographic changed.
10.11 Furthermore, contrary to the Respondent’s suggestion that the ‘RSK’
was a legally established entity, distinct from both Serbia and Croatia, the
‘RSK’ was in fact an illegal entity that for four years occupied territory that
41, No. 2, 2004, p. 123.
13 See Chapters 3 and 7 supra.
14 Counter-Memorial, para. 1109.
15 For e.g. see Counter-Memorial, paras. 1381-1390, 1167.
16 Counter-Memorial, para. 1385.
17
18 Military Encyclopaedia, vol. 10, 2nd ed., Belgrade 1975, pp. 556-562.
For example, in 1981 Serbs living in the area of the Dalmatian hinterland made up 14.3%
of the total Serb population, while in Kordun and Banija this percentage amounted to 8.3%.
At the same time, in Zagreb, Osijek, Vukovar, Karlovac and Rijeka, Serbs accounted for
respectively, 7.15%, 5.37%, 4.73%, 3.42% and 3.06% of the total Serb population. Thus, as a
result of various social and economic developments and migrations after World War II more
ethnic Serbs (in total number) lived in some large Croatian cities than in some municipalities
where they traditionally made up a majority of population. Further, though in 1982 Serbs
accounted for only 11.5% of the total population of Croatia, 17.7% of political leaders and
21.6% of members of the Central Committee of the League of Communists of Croatia came
from their ranks. D. Roksandić (1991), Srbi u Hrvatskoj: od 15. stoljeća do naših dana [Serbs
in Croatia: from the 15th century until today], Zagreb: Vjesnik, pp. 124-157.
19
N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia 1990-1995],
Zagreb, 2005, p. 172.
Volume 10.indd 345 12/14/2010 2:50:08 PM 346
was an integral part of Croatia. This fact was recognised and supported by
the international community. The ‘RSK’ consisted of three territorial units:
the first in Eastern Slavonia, Baranja and Simirium; the second in Western
Slavonia; and the third, the largest, situated in central Croatia, along Croatia’s
border with Bosnia - the so-called Krajina. In fact all the areas over which the
self-proclaimed ‘RSK’ exercised control were sometimes referred to as the
‘Krajina’. The last two units accounted for 85% of the area of the ‘RSK’. For
four years the rebel Serbs controlled 17,028 km, with a border of 923 km that
separated it from the rest of Croatia, under the control of the lawfully elected
Croatian authorities. 20Chapter 3 describes how the ‘RSK’ emerged and how
its very existence was only made possible through the continuing direction,
command, control, support and backing of the FRY/Serbia.
SECTION II: FACTUALBACKGROUND
(1) In t r o d uotn
10.12 In order to establish jurisdiction with respect to the Counter-Claim, the
Respondent argues expansively that the facts giving rise to both claims have a
21
commontemporalsetting. However, on the very next page it seeks to restrict
that temporal setting to the “period from the deployment of UNPROFOR in
the spring and summer of 1992 to Operation Storm in August 1995”. This is
22
despite the fact that it admits that the conflict began earlier. By excluding
the crucial period before the summer of 1992 the Respondent seeks to ignore
the acts of genocide for which it is responsible, committed by and through the
JNA, paramilitaries and the ‘RSK’against the Croat population.
10.13 The Respondent also fails to describe the attitudes and actions of the
FRY/Serbiaandthe‘RSK’authoritiestowardstheCroatslivingintheUNPAs.
It fails to address the conditions of Croats living in the rebel Serb occupied
territories and how these areas came to be almost exclusively inhabited by
Serbs. The Respondent fails to address its own role and activities, that of
the Yugoslav Army (VJ), the ‘RSK’ authorities and their armed forces - the
Serb Army of Krajina (SVK). It also fails to address the ‘RSK’s’ continuing
efforts for unification with the FRY/Serbia and the Republika Srpska (BH).
By excluding all of these facts from its account, the Respondent provides a
wholly incomplete and misleading account of the factual background that
resulted in Operation Storm. This Chapter sets the record straight.
10.14 In its Chapter XII, the Respondent once again alleges general
discrimination and an intolerant attitude against the Serbs by the government
of President Tuđman, “accompanied with the rehabilitation of the Independent
20 Davor Marijan, Storm, Zagreb, August 2010, p. 42.
21 Counter-Memorial, Chapter XI.
22 Counter-Memorial, para. 1115.
Volume 10.indd 346 12/14/2010 2:50:08 PM 347
State of Croatia” which lead to a massive exodus of Serbs from Croatia. 23
Chapter 3 deals with the allegations of discrimination against the Serbs,
which are strongly denied. That Chapter also sets out details of the hate
speech propagatedand promoted by the Serbian state controlled mediaand the
Serbian leadership with regard to the alleged rehabilitation of the Independent
State of Croatia, and the impact it had on the Serbs in the region. 25
10.15 It is recognised that there was an ongoing departure of Serbs from
Croatiabetween1991to1995.Thisresultedfromanumberofcomplexfactors
that are addressed below. This “exodus” was also the result of actions taken
by the rebel Serb leadership after Operations Flash and Storm, in an attempt
to create the impression that the Croatian Government was undemocratic and
genocidal, that Croats were ‘Ustashe’and that it was impossible for the Serbs
to live in Croatia, under Croatian authority. Detailed evacuation plans were
put in to operation, with some Serbs being compelled to leave. Mr. Akashi,
the Special Representative of the UN Secretary General, stressed that the UN
Agencies had been under enormous pressure from the Knin authorities, who
threatened further attacks on Zagreb, to assist the Serb population in leaving
the area after Operation Flash. 26
10.16 It is noteworthy, however, that the Respondent admits that several
27
thousand Croats fled the Serb-held areas of the country. In other words, the
Respondent admits that the conditions in the Serb-occupied areas of Croatia
were such that they resulted in a massive exodus of Croats from these areas.
These conditions are dealt also dealt with below.
(2) t h ed e p l o y m oft h eunprofor a n dt h c r e aIto no ft hunpa s
a n dpIn kZ o n e s
10.17 Chapter 3 briefly describes the Vance Plan, the deployment of the
United Nations Protection Force (UNPROFOR) and the creation of the United
Nations Protected Areas (UNPAs). Pursuant to the Vance Plan a proposal for
the deployment of a UN peacekeepingforce was formally agreed in December
1991. Its role and functions were set out in a Report of the UN Secretary
General, that stated categorically that this was “an interim arrangement”
23
24 Counter-Memorial, para. 1116.
See Chapter 3, para.3.41 et seq.
25 See Chapter 3, paras 3.12-3.33.
26 Council of Europe, Political Affairs Committee, Memorandum on the Visit to Zagreb
and Western Slavonia, 23 June 1995, Annex 144, p. 3. The Report also sets out details of the
27struction of Croat villages in the rebel Serb occupied areas.
Counter-Memorial, para. 1116.
28 See Report of the Secretary-General pursuant to Security Council resolution 721 (1991),
UN doc. S/23280, 11 December 1991, para. 9 et seq. and Annex III (Concept for a United
Nations peace-keeping operation in Yugoslavia, as discussed with Yugoslav leaders by
the Honourable Cyrus R. Vance, Personal Envoy of the Secretary-General and Marrack
Goulding, Under-Secretary-General for Special Political Affairs), Annex 92.
Volume 10.indd 347 12/14/2010 2:50:08 PM 348
to create the conditions for peace required for the negotiation of an overall
settlement to the conflict. From its inception, it was not intended to prejudice
orotherwiseaffecttheoutcomeofnegotiationsforacomprehensivesettlement
29
of the conflict.
10.18 The Report provided that UN troops and monitors would be deployed in
those areas of Croatia where Serbs constituted the majority - or a substantial
minority - of the population and where so-called “inter-communal tensions”
had led to armed conflict. 30 These areas, designated as UNPAs, were to be
demilitarized, with all armed forces (including the JNA) being withdrawn or
disbanded.UNtroopsweretoensurethattheareasremaineddemilitarizedand
its residents, including Croats and non-Serbs, protected from fear of armed
attack. UN Police monitors were to ensure that local police carried out their
duties without discriminating on the basis of ethnicity and abusing human
rights. Working with UN humanitarian agencies, the UN force was also to
secure the return of displaced persons to their homes in the UNPAs. 31Three
UNPAs were identified: Eastern Slavonia, Western Slavonia and Krajina.
However, their exact boundaries were not defined. Once again the “interim
32
nature” of these arrangements was reiterated.
10.19 The Respondent states that all the parties generally accepted the ceasefire
and the Vance Plan. This contradicts its earlier admission that the “RSK
leadership” was reluctant to accept the plan, allegedly because it was of the
view that the UN forces would be unable to protect the Serb population from a
Croatian attack. It was only after the direct intervention of Milošević that the
rebel Serbs in Knin agreed to accept the Vance Plan. Borisav Jović reports
a “difficult and dramatic” meeting on 2 February 1992 whereby, pursuant to
36
Milošević’s direction, the leadership of the ‘RSK’ accepted the Plan.
29 Ibid., para. 1.
30 See Ibid., para. 8. The Secretary General judged that “special arrangments” were required
in these areas for “an interim period to ensure that a lasting ceasefire was maintaine.”
31 Ibid., Annex III, para. 7.
32 Ibid., Annex III, paras. 8, 9. The UNPAs are set out in the Memorial, Volume 3, Plate 2.7.
33
Counter-Memorial, para. 1117.
34 Counter-Memorial, para. 564. See Chapter 3, paras. 3.120-3.121.
35 Milan Babić, the ‘President’ of the ‘RSK’ was opposed to the Plan and stated that the Serbs
would refuse to co-operate, to surrender their weapons or permit the JNA to withdraw. See
Further Report of the Secretary-General pursuant to Security Council resolution 721 (1991),
UN doc. S/23513, 4 February 1992, para. 12. See also Martić, para. 149.
36 See Memorial, paras. 2.125 and 2.126; Boris Jović: “Last Days of the SFRY (Excerpts
from a Diary)”, Memorial, Volume 5, Appendix 4.3. See also Further Report of the Secretary-
General pursuant to Security Council resolution 721 (1991), UN doc. S/23592, 15 February
1992, paras. 7-8 wherein Jović informed the Secretary General of the unconditional acceptance
of the Krajina to the Vance Plan. Jović stated that “no undue significance” should be attached
to Babić’s resistance. Babić was “officially” replaced on 27 February 1992 by Goran Hadžić,
the Serb leader in Eastern Slavonia. (Balkan Battlegrounds: A Military History of the
Yugoslav Conflict 1990–1995, Central Intelligence Agency (CIA), Vol. I, p. 106). See also
Martić, para. 149.
Volume 10.indd 348 12/14/2010 2:50:08 PM 349
10.20 In any event, UNPROFOR was established on 21 February 1992,
and assumed responsibilities over four sectors in the three UNPAs between
15 May and 2 July 1992. 37 UNPROFOR’s authority was extended to “pink
zones”, the term used to describe those parts of Croatian territory outside the
UNPAs,thatremainedunderrebelSerbcontrolafterthecessationofhostilities
in January 1992.The Respondent once again distorts the facts and changes the
order of events when it claims that the “pink zones” were largely populated by
Serbs, and that Croatia sought to re-establish its authority over these areas. 38
Once it became known which areas would constitute the UNPAs, rebel Serbs
occupied areas beyond and outside the designated, but as yet undemarcated,
UNPAs. At that point these areas were not “largely populated by Serbs.” In
fact, Serbs accounted for less than half the population of the overall territory
within the “pink zones”. 39 After the conflict began the Croat inhabitants of
these areas were driven out by the rebel Serb forces in conjunction with the
JNA. This resulted in the area being largely populated by Serbs. 40
10.21 In order to avoid the outbreak of further hostilities, Croatia agreed
to accept UNPROFOR assistance in reinstating Croatian authority in these
areas even though the Vance Plan required that these areas be handed back to
Croatia following the JNA’s withdrawal. The Respondent accepts that the
rebel Serb authorities resisted the re-establishment of Croatian authority in
this area. In so doing it admits that the ‘RSK’began violating the Vance Plan
from its very inception.
Liberation of Miljevci Plateau
10.22 The Miljevci Plateau (comprised of seven villages and some ten
hamlets) was not “largely populated by the Serbs,” as the Respondent claims.
Before the Serb rebellion, there were some 2,500 Croats and only about 50
Serbs living in the area. 43The attack on the positions of rebel Serbs in the
Miljevac Plateau, that occurred on 21 June 1992, was not organised by the
37
Report of the Secretary-General pursuant to Security Council resolution 762 (1992), UN
doc. S/24353, 27 July 1992, para. 2.
38 Counter-Memorial, para. 1118.
39 O. Žunec, Goli život: socijetalne dimenzije pobune Srba u Hrvatskoj [Naked life: social
dimensions of the Serb rebellion in Croatia], Zagreb, 2007; N. Barić, Srpska pobuna u
Hrvatskoj 1990-1995 [Serb Rebellion in Croatia 1990-1995], Zagreb, 2005, pp. 178-182.
40 See: Report on the Shelling of Civilian Targets and the Victims of those Shellings, April
1992 – July 1993 Annex 116.
41 Memorial, para. 2.128. See Further Report of the Secretary-General pursuant to Security
Council Resolution 752 (1992), 26 June 1992, UN Doc. S/24188, para. 16. Also Report of the
Secretary-General pursuant to Security Council Resolution 762 (1992), 27 July 1992, para.
10.
42 Counter-Memorial, para. 1118.
43 Serbs were only resident in the village of Nos Kalik which was liberated by the Croatian
Army as early as 2 March 1992. At the time of the liberation of Miljevci, on 21 June 1992,
there were no Serb civilians in the area, only active and reserve forces of the former JNA, i.e.,
the Territorial Defence. Only some Croatian civilians remained, the majority having fled or
been forced to leave earlier.
Volume 10.indd 349 12/14/2010 2:50:08 PM 350
senior command of the CroatianArmy. This is evident from a communication
of the Chief-of-Staff of the CroatianArmy to the Commander of the Croatian
Navy, on 24 July 1992 which states inter alia that action was carried out
44
without the knowledge or approval of the higher commands. The operation
lasted one day.
10.23 Claims about the killing of imprisoned Serb soldiers are not
established by the evidence, and the Respondent is able to rely only on a
report from the Serb NGO Veritas, 45which is neither impartial nor convincing
46
as an authority.
10.24 Finally, the Respondent refers to UN Security Council Resolution
762, adopted after events at Miljevci, that urged Croatia to withdraw its
army to the positions held before the offensive of 21 June 1992. Yet the 47
Respondent fails to mention that the same Resolution also ordered the local
Serb authorities to demilitarize the “pink zones” and bring them back under
48
the control of the Government of Croatia.
(3) th e c o n In uIn s u p p o rtft h efry/s e r Ia f o rt h ‘rsk’
10.25 But for the active political, financial, military and logistic support and
backing of the FRY/Serbia, the ‘RSK’, proclaimed in December 1991, would
never have come into being or existed for the four years that it did. Chapter
4 sets out details of the extensive military and logistical support provided by
the FRY/Serbia to the ‘RSK’, and its army- the SVK. Security Council and
General Assembly Resolutions confirm this support. 49
44
The communication states:
“The latest incursions of parts of HV [Croatian Army] in the area of Unešić on 22
July and previous incidents near Nos Kalik and Miljevci Plateau prove that actions
are conducted without the knowledge of and authorization from higher-ranking co-
mmands – OZ and HRM [Croatian Navy]. Set up a commission to investigate this
matter and find out which forces or persons did this and whether this was done
deliberately in order to jeopardize the implementation of the plan of the UN peace-
keeping operation and inform me thereof by 8:00 hours on 26 July 1992. ... Having
learned a lesson from this event, establish a command system so that these incidents
do not happen again. The HV cannot enter, after having assumed commitments, into
the territories of UNPAs, or territories outside of the UNPAs in which the HV units
are not allowed to be present.”
Letter from Lieutenant General Anton Tus to Admiral Sveto Letica, 24 July 1992, Annex
117.
45 Counter-Memorial, para. 1120 and its Annex 46.
46 Chapter 2, paras. 2.66-2.68. The Respondent fails to mention that 13 of the 14 prisoners
of war (POWs) were exchanged for Croatian soldiers in Nemetin near Osijek on 11 August
1992 and an investigation is on at the Šibenik County State Attorney’s Office/County Police
Department regarding one death.
47 Counter Memorial, para.1119
48 UN Security Council Resolution 762, dated 30 June 1992, para. 4.
49 See inter alia General Assembly Resolution A/RES/49/43 of 9 December 1994, Memorial,
Vol.4, Annex 4, p. 25; Security Council Resolution 871 of 1993, which when calling for the
demiliterization of the UNPAs called upon the FRY “in particular....to co-operate in [the] full
Volume 10.indd 350 12/14/2010 2:50:08 PM 351
10.26 The Respondent’s continuing direction, command and control is
also clear from numerous other examples. For example, in early 1994, the
FRY, through its National Bank, introduced a united monetary system into
the ‘RSK’ and the Republika Srpska in BH. This led the two so-called Serb
50
‘republics’replacing their own ‘state’currencies with the dinar of the FRY.
10.27 Further, the rebel Serb authorities in the UNPAs, (in the ‘RSK’),
were issuing documents, including personal identification cards, as if the
UNPAs were a part of the FRY/Serbia. These documents show that the ‘RSK’
authorities (and Serbia) considered the UNPAs a part of the territory of the
FRY. 51
10.28 As regards military control and direction, the Respondent admits that
the sources adduced by the Applicant confirm the links between Knin and
52
Belgrade and their communication. It claims, however, that this does not
prove Belgrade’s “control” over Knin. In fact, the ‘RSK’ and the SVK could
not have survived without the support of the financial and material resources
of the FRY/Serbia. This is clear from UN General Assembly Resolution
on “The Situation in the Occupied Territories of Croatia”, that noted the
53
relationship between [Yugoslavia] and Knin. By this Resolution, the General
Assembly reaffirmed the principles of inadmissibility of the acquisition of
territory through the use of force, and urged the restoration of the authority
of the Republic of Croatia in its entire territory. Stressing the importance
of preserving Croatia’s territorial integrity, the General Assembly stated that
the the UNPAs were integral parts of the Republic of Croatia and called for
the peaceful reintegration of “the Serbian-controlled territories” into the rest
55
of Croatia. Expressing alarm and concern that “the ongoing situation in the
Serbian-controlled parts of Croatia [was] de facto allowing and promoting a
stateofoccupationofpartsofsovereignCroatianterritory”,thereby“seriously
jeopardizing the sovereignty and territorial integrity of the Republic of
Croatia,” it called upon the FRY to fully comply with all Security Council
56
resolutionsregardingCroatia,andrespectitsterritorialintegrity. Itfoundthat
FRY’s “activities aimed at achieving the integration of the occupied territories
of Croatia into the administrative, military, educational, transportation and
communication systems of the Federal Republic of Yugoslavia (Serbia and
implementation of the [Peacekeeping] plan.” Annex 118, para. 4.
5 N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia 1990-1995],
51greb, 2005, pp 406-407.
See one such example of a Identity Card, issued by the ‘RSK’ authorities, dated 26
November 1992, Annex 119.
52 Counter-Memorial, para. 626.
53 General Assembly Resolution A/RES/49/43 of 9 December 1994, Memorial, Vol.4, Annex
4, p. 25.
54
55 Ibid.
Ibid.
56 Ibid., para. 2.
Volume 10.indd 351 12/14/2010 2:50:08 PM 352
57
Montenegro) [were] illegal, null and void, and must cease immediately.”
The General Assembly requested the FRY to immediately cease military and
logistic support to the self-proclaimed Serb authorities. 58
10.29 The Respondent seeks to underplay its own role. The evidence
discloses the close connections between theArmy of Yugoslavia (VJ) and the
SVK and demonstrates the control that Serbia exercised over the SVK. The
SVK came into being because the JNAhad to “withdraw” from Croatia due to
pressure imposed by the international community.The links between the SVK
and the VJ included the political and ideological goal of securing a Greater
Serbia.This was the basis on which the SVK was formed and which continued
to link them until the end of the conflict. A further link was organisational, in
the form of personnel: from November 1993 this operated through the 40 th
Personnel Centre for transmission of commanding officers from the VJ to the
SVK, without whom the SVK could not have functioned. The Respondent
provided the entire commanding personnel (brigades, corps, General Staff)
of the ‘RSKs’ army. A third connection was logistical: without operational
support from Serbia, the SVK could not have functioned or been armed.
10.30 The Respondent seeks to create the impression that there were only
a few commanding officers of the VJ in the SVK, and seeks to minimise their
role. However, the minutes of a session of the “Government” of the ‘RSK’, of
early July 1994, confirms that the situation was as indicated by the Applicant
in the Memorial: large numbers of JNA officers were active in the SVK. 59
Officers and non-commissioned officers of the VJ volunteered for the SVK,
and many did so. The majority, however, went there by force of law, which
60
can be seen from their personnel documents.
10.31 The 40 Personnel Centre was established on 10 November 1993
as Military Post 4000 – Belgrade and was part of the Belgrade garrison. The
professional officers, non-commissioned officers of Serb nationality who were
born on the territory of the Republic of Croatia, i.e., who were sent to Military
Schools from the municipalities of the Socialist Republic of Croatia, before
57
58 Ibid.
Ibid., para. 3.
59 See Memorial, Chapter 3, Section 2, especially para 3.68 et seq. See RSK, Minutes from
the Thematic Session held on 6 July 1994, Knin. The Minutes state:
“We in SVK have 1,227 professional officers and non-commissioned officers sent
from the Army of Yugoslavia and born in the former territories of the Republic of
Croatia. This is around 50% of the total number of officers and non-commissioned
officers born in the former areas of Croatia. Around 50% of them are still in the
Army of Yugoslavia.”
RSK, Minutes on the Thematic Session of the Government of the RSK, 6 July 1994, Annex
600.
There are thousands of such personnel documents. For example under an order of the
head of Personnel Administration dated 22 April 1992, 72 commanding officers of the JNA
were sent for a year to the SVK. See SFRY, Chief of Personnel Administration of the Federal
Secretariat for National Defence, Order No. 2-77, 22 April 1992, Annex 121.
Volume 10.indd 352 12/14/2010 2:50:09 PM 353
th
the war, were to be transferred (with certain exceptions), to the 40 Personnel
Centre from other units of the VJ. The establishment of the 40 thPersonnel
Centre was intended to conceal the sending of VJ officers to paramilitary units
on the territory of Croatia so that they could be assigned to the SVK as active
members of the VJ. 61
10.32 Also significant are the provisions on the joint authority of the
commands, on the one hand, and the VJ and the SVK as a whole, on the other,
with respect to transfers to the units of the so-called Army of the Republika
Srpska (VRS), on the territory of Bosnia and Herzegovina. These were within
the competence of the Personnel Directorate within the General Staff of the
VJ (i.e., in the case of transfers within and between the SVK corps, within
the competence of, respectively, the General Staff of the SVK and the corps
commands).
10.33 It follows from this that the SVK and the VRS were de facto
constituent parts of the VJ. Although they each had their own command
structures, they were not, in practice, independent of the VJ. Furthermore, the
PersonnelDirectorateoftheGeneralStaffoftheYugoslavArmywasincharge
of the transfers of VJ members who had been assigned (“raspoređeni”) to the
SVK, i.e., to the units of the VRS. The evidence shows that the functioning of
the 40t Personnel Centre confirms the leading role of the FRY/Serbia and the
VJ within the ‘RSK’on the territory of Croatia.
(4) c o nIn uIn gh u m a r Ig h t svIo l aIto n s f b y cr o a t s
In t h er e bsee r o c c uIpe te r It oIe s
10.34 Although the UN called for the demilitarization of the UNPAs, they
were not demilitarized. Secure under the protection of the UNPROFOR, the
rebel Serbs consolidated the gains of their genocidal campaign, cleansing
occupied territories of non-Serbs and destroying non-Serb property (including
cultural and religious monuments) in such a way as to make conditions of
62
life impossible for Croat and other non-Serb populations. The actions of the
61
See RSK, 18th Corps., Command no. 7-214/1, 16 April 1994, Annex 122 which describes
the work of the 40th Personnel Centre. Para 4 states:
“All persons who have been transferred cannot request the return [“povrat”] to
the VJ, only the transfer [“premještaj”], while the persons who have been sent
[“upućen”] may get the return. The position of the Collegiate Body is to approve
the return only to the persons who were not born in Krajina and those who really
have justifiable reasons (serious disease). The PU /Personnel Administration/ is
responsible for the transfer into the VRS /Army of Republika Srpska/, the GŠ of the
SVK is responsible for the transfer from one corps into another within the 40th KC,
and within the Corps it is the Corps Command, which can be achieved through a
62 Proposal for deployment into another unit.”
In Security Council Resolution 757, 30 May 1992 (which introduced wide-ranging
sanctions against the FRY) the Security Council expressed its deep concern at persistent
ceasefire violations, at the continued expulsion of non-Serb civilians and at the obstruction
Volume 10.indd 353 12/14/2010 2:50:09 PM 354
Respondent and the rebel Serbs, described in detail in the Memorial and in
63
earlierChaptersofthisReply, werecondemnedbytheUNandtheinternational
community, including by the UN Special Rapporteur of the Commission on
Human Rights on the situation of human rights in the territory of the former
YugoslaviainFebruary1993. 64TheUNSpecialRapporteurvisitedtheUNPAs
and found that “the de facto authorities of the self-proclaimed Serbian region
of Krajina (RSK) are vigorously pursuing a policy of ethnic cleansing.” 65
In another report, the UN Special Rapporteur referred to the deliberate and
systematic shelling of civilian objects in Croatian towns and villages and to
66
the resulting deaths and injuries among the civilian population. The intention
to prevent the return of displaced populations and refugees on a permanent
basis was also noted by the General Assembly. This situation continued
through the years of Serb occupation.
10.35 Other members of the international community also condemned
the acts of the FRY and the ‘RSK’. The US State Department stated that in
of and lack of cooperation with UNPROFOR in parts of Croatia. See also the Report of the
Secretary-General pursuant to Security Council 762 (1992), 27 July 1992, paras. 14-15 which
refers to expulsion, coercion and intimidation of the non-Serb populations in the UNPAs who
were being compelled to leave their homes.
63
See generally Memorial, Chapters 4 and 5 and Reply, Chapters 3 to 6.
64 The Report submitted by Tadeus Mazowiecki, Special Rapporteur of the Commission
on Human Rights, (UN doc. E/CN.4/1993/50, 10 February 1993), appointed to investigate
first hand the human rights situation in the territory of the former Yugoslavia pursuant to
UN Human Rights Commission Resolution 1992/S-1/1, UN doc. E/1992/22/Add.1, 14 August
1992. See also General Assembly Resolution A/RES/49/196 of 9 March 1995 in which the
Assembly expressed its serious concern at the prevalence of lawlessness in the Serbian-
controlled territories of Croatia and the lack of adequate protection for Croatian and non-Serb
populations remaining in Serb controlled municipalities. See also the Report on the Shelling
of Civilian Targets and the Victims of those Shellings, Annex 116, that sets out details of the
expulsion of Croats from the UNPAs.
65 Report submitted by Tadeus Mazowiecki, 10 February 1993, para. 143. Before the war
Croats accounted for 37.1% of the total population living in the occupied territories of Croatia,
while in 1993 this percentage fell to just 7%. See O. Žunec (2007), Goli život: socijetalne
dimenzije pobune Srba u Hrvatskoj [Naked life: social dimensions of the Serb rebellion in
Croatia], Zagreb, pp. 720-721.
66 Fifth Periodic Report on the situation of human rights in the territory of the former
Yugoslavia, UN doc. E/CN.4/1994/47, 17 November 1993 at para. 161. Similar findings were
made in a Report of 4 November 1994, UN doc. A/49/641, UN doc. S/1994/1252.
67 General Assembly Resolution A/RES/48/153 of 20 December 1993 urged an immediate
end to the practice of ethnic cleansing and in particular that the authorities of the FRY use
their influence with the self-proclaimed Serbian authorities in Croatia to bring the practice
to an immediate end and reverse the effects of that practice. During the Serb occupation
several hundreds of Croats who had remained in the UNPAs were killed, abandoned Croatian
property was destroyed and plundered and Roman Catholic churches were destroyed.
Specifically, of some 16,000 Croats who had remained in the occupied territories after the
formationofUNPAsin1992,approximately8,000people(mostlyCroats)weresystematically
expelled, while around 600 were killed. See A. Bing (2007), Put Do Erduta: Položaj Hrvatske
u međunarodnoj zajednici 1994.-1995. i reintegracija hrvatskog Podunavlja, [Path to erdut:
Croatia’s position in the international community 1994-1995 and the reintegration of Croatian
Danubebasin],ScriniaSlavonica, Vol. 7, No. 1, 2007:379; N. Barić, SrpskapobunauHrvatskoj
[Serb Rebellion in Croatia 1990-1995], Zagreb, pp. 373-398.
Volume 10.indd 354 12/14/2010 2:50:09 PM 355
1993, in the Serb-controlled portions of the UNPA’s, there was no evident
commitment to ending human rights abuses against the Croat population and
that the Krajina Serb “authorities” continued to be among the most egregious
perpetrators of human rights abuses that included killings, disappearances,
68
beatings, harassment, forced resettlement, or exile. In 1994 the US State
Department found that the well-armed police and military forces of the self-
proclaimed RSK continued their pattern of egregious human rights abuses
including physical violence and “ethnic cleansing.” It also found that of the
44,000 Croats who originally lived in Sector South, only 800 to 900 remained.
In Sector North it found that only 1,000 Croats of an original population of
112,000 remained. 69
10.36 International human rights organizations made similar findings. In
its 1993 Report, Human Rights Watch stated inter alia that the
“Serbian policy of “ethnic cleansing” involves the summary execution,
disappearance,arbitrarydetention,deportationandforcibledisplacement
of hundreds of thousands of people on the basis of their religion or
nationality. The goal is to rid all Serbian-controlled areas of non-Serbs,
70
or at least to diminish their numbers significantly.”
10.37 As stated earlier, in December 1994, in a Resolution on the “situation
in the occupied territories of Croatia”, the UN General Assembly reaffirmed
the principle of the inadmissibility of the acquisition of territory through
the use of force, and urged the restoration of the authority of the Republic
of Croatia in its entire territory. In addition to calling upon “the Federal
Republic of Yugoslavia (Serbia and Montenegro)” to fully comply with all
68 See Croatia Human Rights Practices, 1993, U.S. Department of State, 31 January 1994.
The report states inter alia:
“Killings continued to occur in the UNPA’s as part of the Belgrade-backed Serbs’
program of “ethnic cleansing.” [...]. Conditions in prisons within the Serb-controlled
UNPA’s are reliably reported to be abysmal. ... There were reports of torture and
abuse in Serb-run prisons in the UNPA’s. [...] In the Serb-controlled areas of the
UNPA’s, virtually no safegurds exist against arbitrary detention. The use of deten-
tions to intimidate non-Serbs continued in 1993. [...]In Sector South, UNPROFOR
had to provide 24-hour protection for a small Croatian village after local Serbian
“authorities” announced they could no longer “protect” the inhabitants from the
depredations of armed bands. [...] In Sector South and the Pink Zones, home to
44,000 ethnic Croats in 1991, there were reportedly only 1,161 ethnic Croats by
year’s end. In UNPA Sector East, most of the Croats have been driven out [...] The
Croatian population has dropped from 46 % of the total in 1991 to approximately 6
%, whereas the Serbian population increased from 34 % to approximately 73 %. [...]
There were reports of murder, rape and pillage, as well as brutal beatings against
the remaining non-Serbs.
69 See Croatia Human Rights Practices, 1994, U.S. Department of State, February 1995.
70 Human Rights Watch World Report 1993, Situation in the Former Yugoslavia, available at
71tp://www.hrw.org/reports/1993/WR93/.
General Assembly Resolution A/RES/49/43 of 9 December 1994, Memorial, Vol.4, Annex
4, p. 25.
Volume 10.indd 355 12/14/2010 2:50:09 PM 356
Security Council resolutions regarding Croatia, the UN General Assembly
requested the FRY to immediately cease military and logistic support to the
so self-proclaimed Serb authorities. The General Assembly also condemned
the “Serbian self-proclaimed authorities in the Serbian-controlled territories
of Croatia” for their militant actions that had resulted in ethnic cleansing of
the UNPAs and for their constant refusal to comply with Security Council
72
resolutions. And it urged the restoration of the authority of the Republic of
Croatia in the entire territory, calling for the utmost respect for human and
minority rights in the territory of Croatia, including the right to autonomy in
accordance with the Constitution of the Republic of Croatia and established
international standards, and for efforts to achieve a political solution within
the framework of the International Conference on the Former Yugoslavia
73
(ICFY).
10.38 In a 1995 Resolution, the UN General Assembly strongly
condemned all violations of human rights and international humanitarian law
in the Republic of Croatia and recognized, once again, that the “leadership
in territories under the control of Serbs in ... Croatia, and the commanders of
Serb paramilitary forces and political and military leaders in the [FRY bore]
74
primary responsibility” for the violations. It expressed serious concern at the
lawlessness in the Serbian-controlled territories of Croatia and the physical
75
violence and insecurity faced by non-Serb populations in those territori▯es.
(5) s e r Ia nn o n-co m pIla n c ewIt ht h va n c p l a c o n In u e s
10.39 As stated earlier, the FRY/Serbia and the leadership of the ‘RSK’failed
76
to comply with the Vance Plan from its very inception. First, as noted in the
Memorial, when the JNA finally withdrew from Croatia towards the end of
May 1992, it left behind much of its weaponry with the SerbTO and police, in
plainviolationoftheVancePlan’sprovisionsfordemilitarisation. Second,(as77
also admitted by the Respondent) the TO units that were to be disbanded and
78
demobilizedweretransferredto“specialpolice”andborderunits. Thus,while
72 Ibid . The Resolution reaffirmed the right of all refugees and displaced persons to return
voluntarily to their homes safely and noted that the 1991 census was the basis for defining the
population structure of the Republic of Croatia.
73
Ibid. para. 7.
74 General Assembly Resolution A/RES/49/196 of 10 March 1995, para. 4.
75 Ibid., para. 17.
76 Chapter 3, para. 3.125. The Respondent admits this in Counter Memorial, see inter alia
para. 1118.
77
Memorial, para. 3.47 and Reply, para. 4.86 et seq. See also Report of the Secretary-General
pursuant to Security Council resolution 762 (1992), UN doc. S/24353, 27 July 1992, para. 5
which states that the JNA transferred its heavy weapons to Serb TOs and paramilitary units.
78CounterMemorial,para.1121.SeealsoReportoftheSecretary-GeneralpursuanttoSecurity
Council resolution 762 (1992), UN doc. S/24353, 27 July 1992, para. 7; Further Report of the
Secretary-General pursuant to Security Council resolution 743 (1992), UN doc. S/24848, 24
Volume 10.indd 356 12/14/2010 2:50:09 PM 357
theTOsweredisbanded,andtechnicallydemobilized,theirstructureremained
intact and available for fresh mobilization. The demobilized personnel were
incorporated into eight brigades of militia (Milicija), and the de facto army
and police brigades were subordinated through the Special forces units under
the ‘Ministry of Defence’ of the ‘RSK’. Third, these groups were equipped
79
with automatic rifles and machine guns and armoured vehicles. Recognising
the failure to demilitarise and demobilize, the UN Security Council expressed
concern at the creation of Serb paramilitary forces in the UNPAs and urged all
parties and others concerned to comply with their obligations to withdraw and
disarm under the Vance Plan. 80
10.40 Notwithstanding these incontrovertible facts, the Respondent seeks
to create the impression that it sought to demilitarize the UNPAs by referring
tothewithdrawal of the JNAinthespring of1992 andthetransferof anumber
of the ‘RSK’ TOs to the RSK Police units. The Respondent admits that this
81
was in violation of the Vance Plan, but justifies this on the grounds of an
alleged fear of a Croatian attack, based on events at the Miljevci Plateau to
argue that their fears were justified. Subsequently, the Respondent contradicts
itself: in its attempt to make its case that the Applicant committed genocide
against the Serbs during Operation Storm, the Respondent states that Krajina
was an UNPA and in it the “Krajina Serbs” were made even easier targets for
the subsequent ‘genocide’ as they were led to believe that the UNPA status
82
afforded them “at least some degree of safety from the Croatian forces”. The
Respondent argues, on the one hand, that the rebel Serbs refused to disarm
as they did not trust the UN forces to justify the failure to de-militarise; and,
on the other hand, that these same rebel Serbs believed that the UN forces
would protect them when attempting to claim that Croation forces committed
genocide. Recent factual findings of the ICTY clearly contradict the
Respondent’s assertions. In the case of Milan Martić, for example, the Trial
Chamber found that “[t]he evidence shows that the RSK was not demilitarised
83
in its entirety in accordance with the Vance Plan.” It also found as fact that
“[t]he RSK leadership was against the demilitarisation of the RSK, asserting
84
that it would be unable to defend itself in the event of Croatian attacks.” The
November 1992, paras 11-12 which states inter alia that the “Knin Authorities” continued
to obstruct demilitirization and despite “interventions at the highest levels in Belgrade....no
progress has been achieved towards demobilization...” The Report also stated:
“It seemed evident that the Belgrade authorities could, if they chose, take measures which
would have a strongly persuasive effect upon the Serb local authorities, especially in view of
the considerable economic dependence of much of the UNPAs upon the FRY.”
79 Report of the Secretary-General pursuant to Security Council resolution 762 (1992), UN
doc. S/24353, 27 July 1992, para. 7.
80 Security Council Resolution 779 (1992), 6 October 1992, preamble and para. 4.
81
82 Counter-Memorial, para. 1121.
Counter-Memorial, para. 1386.
83 Martić, para. 152.
84 Ibid., para. 153.
Volume 10.indd 357 12/14/2010 2:50:09 PM 358
Chamber noted “the evidence concerning the return of Croat refugees, which
was a condition of the Vance Plan and which Milan Martić was clearly against
and in fact obstructed.” 85
10.41 The Respondent also makes unsubstantiated allegations about
Croatia’s threats to resort to force, and various ceasefire violations, and claims
that the “fears of Serbs in the RSK found justification in the fact that each
time there was a progress in relations between the parties, including towards
full demilitarization, the Croatian authorities would undertake armed attacks
against Serbs in the UNPAs, accompanied with ethnic cleansing of the Serb
population.” 86 Yet it provides not a shred of evidence in support for such
claims. In fact, there was no real progress between the parties. Following an
initial ceasefire, the FRY/Serbia and the rebel Serbs failed to comply with the
Vance Plan, and failed to discuss any international or Croatian initiatives to
resolve the situation by arriving at a peaceful settlement.
10.42 The Respondent also violated other obligations under the Vance
Plan, namely the return of Croat and other non-Serb refugees and displaced
people to the UNPAs, and ensuring that the composition of the police forces
in the UNPAs reflected the pre-conflict ethnic composition of the population.
This was a central element of the Plan, and the failure to respect it undermined
efforts to end the conflict. In order to prevent the return of Croatian refugees
and displaced persons to the UNPAs, the authorities of the ‘RSK’ charged
Croatian refugees who fought in the Croatian forces with various criminal
offences arising out of their (lawful) participation in “the armed forces of
the enemy”. The intention was to prevent their return. This was also clearly
demonstrated by the statement by the ‘RSK’s’ “Minister of Justice and
Administration” Risto Matković, to the effect that it would be necessary to
create “in the public” a climate of “persecution” of persons who “committed
the crime of participating in the enemy forces.” 88
10.43 The fact that the rebel Serbs had no intention of complying with the
Vance Plan is also apparent from their continuing pursuit of unification with
Serbia and the Republika Srpska.
(6) th e co n In u aIto no h o s tIlItIe– 1993
10.44 There was no stablization or improvement in the UNPAs in the
second half of 1992. In fact, no real progress was made towards resolving the
85
86 Ibid., para. 341.
87 Counter-Memorial, para. 1122.
See the Further Report of the Secretary-General pursuant to Security Council resolution
721 (1991), UN doc. S/23592, 15 February 1992, paras. 16-17.
88 Minutes of the 19th Session of the Government of the RSK, 31 December 1991, Annex 123.
See also N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia 1990-
1995], Zagreb, 2005, p 391-393.
Volume 10.indd 358 12/14/2010 2:50:09 PM 359
situation in the Serb occupied territories until early 1994. In October 1992,
the Security Council expressed alarm over continued ethnic cleansing and the
forcible expulsion of civilians from the UNPAs, as well as over the creation
of paramilitary forces in violation of the Vance Plan. It also made repeated
90
demands for their disarmament. Similarly, the ForeignAffairs Council of the
European Community found increasing evidence of atrocities including mass
killings and ethnic cleansing carried out principally by rebel Serb groups. 91
The ICTYTrial Chamber in Martić found as fact “a continuation of incidents
of killings, harassement, robbery, beatings, burning or houses, theft, and
destruction of churches carried out against the non-Serb population” on the
territory of the ‘RSK’during 1992. 92The Trial Chamber also held that further
reports of killings, intimidation and theft continued throughout 1993. 93
10.45 Bytheendof1992,theUNhadcometotheconclusionthatitwasthe
“authorities”ofthe‘RSK’thatborethegreatestresponsibilityforthesituationin
the UNPAs. 94This is confirmed by a communiqué of 3 December 1992, issued
by the ‘RSK’s’“State Committee for Cooperation with UNPROFOR”:
“The latest report of the Secretary-General of the UN, Mr. Boutros
Boutros-Ghali was expected, but not in the form and with the contents
as it has been presented in the mass media. We [had] expected that in
the Report the responsibility for the blockade of the peace operation
will be shared between our side and the Croatian side - according
to the criteria not known to us, though - but we [had] not expected
that the Government of the RSK /Republic of Serbian Krajina/ would
openlybecalled“therootcausefortheimpossibilityofUNPROFOR’s
further operation”. We cannot accept such qualification of the situation
in the protected area, let alone the explanation which Mr. Boutros-
95
Ghali provided in his Report.”
10.46 The Respondent’s reliance on the February 1993 Report of the UN
Secretary-General to claim that the situation in the UNPAs had stabilized by
the second half of 1992 is misleading: the Report expressly singled out the
non-cooperation of the rebel Serb authorities that “prevented the UNPROFOR
89
The fact that there was no improvement is set out the Report of the Secretary-General
pursuant to Security Council Resolution 743 (1992), UN Doc. S/25264, 10 February 1993,
paras. 12-13. It states that the non-cooperation by the rebel authorities prevented UNPROFOR
from establishing conditions of peace and security.
90 Security Council 779 (1992), UN doc. S/RES/779, 6 October 1992.
91 Declaration on Former Yugoslavia made by the Foreign Affairs Council of the European
92mmunity, Luxembourg, 5 October 1992, (UN doc. A/47/514 and S/24638).
Martić, para. 327.
93 Ibid., para. 328.
94 See e.g. Security Council Resolution 779 (1992), UN doc. S/RES/779, 6 October 1992.
95 RSK, State Committee for Cooperation with UNPROFOR, Public Announcement, 3
December 1992, Annex 124.
Volume 10.indd 359 12/14/2010 2:50:09 PM 360
from achieving the demilitarizing of the UNPAs and the disarming of the Serb
Territorial Defences and irregular forces.” 96
(a) Operation Maslenica
10.47 AccordingtotheRespondent,theCroatian“attack”againstMaslenica
and other locations in January 1993, halted the so-called ‘improvement’of the
situation and resulted in the destruction of 3 villages and the displacement of
11,000 Serbs to other parts of the ‘RSK’. 97
10.48 Yet again the Respondent presents an incomplete and misleading
account of the facts. As stated above, there was no improvement in the
situation, and the UN found that the Serbs were primarily responsible for the
difficulties faced by UNPROFOR in fulfilling its mandate. The Respondent
is also silent regarding the reason for the Operation in Maslenica that was
undertaken between 22 January and 10 February 1993. That Operation aimed
at re-establishing transport and communication links between the north and
south of Croatia that had been severed by the 1991 occupation of this territory
98
by the JNAand the rebel-Serbs. This was the only traffic route for the supply
ofhumanitarianandotheraidtopartsofBosniaandHerzegovinaunderMuslim
and Croat control. The Respondent also fails to mention that shortly before
the Operation, the Serb authorities in Knin had rejected any negotiations on
the re-establishment of transport links in the area. 99 Through this Operation,
Croatia achieved a legitimate humanitarian and military objective.
10.49 On 27 January 1993, Croatian forces liberated the Peruča dam that
had been held by the rebel Serb forces since late 1991, and that they had
threatened to destroy. The destruction of the dam would have flooded the
entire Cetina valley, leaving Dalmatia without power. As a result of the Serb
controlofthedam,theelectricalsupplysystemofsouthernCroatia(Dalmatia)
was in a terrible situation throughout 1992. Prior to the liberation of the dam,
the ‘RSK’ forces detonated explosives leaving it damaged and although it
held long enough to prevent massive flooding, it resulted in a major loss of
hydroelectric power for several months. It was for this reason that the Security
Council approved UNPROFOR’s takeover of the dam. 100
96
See Further Report of the Secretary-General pursuant to Security Council Resolution 743
(1992), UN doc. S/25264, 10 February 1993, paras. 12-13.
97 Counter-Memorial, paras. 1124-1125.
98 The destruction of the Maslenica bridge northeast of the city of Zadar, which was the main
land route between northern and southern Croatia had left the Dalmatian coast accesible only
by ferry (Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990–1995,
Central Intelligence Agency (CIA), Vol. I, p. 267).
99
N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia], Zagreb, 2005,
pp 184-185.
100 Security Council 779 (1992), S/RES/779, 6 October 1992, para. 1. See also the Report
of the Secretary-General pursuant to Security Council Resolution 871 (1993), UN Doc.
S/1994/300, 16 March 1994, para. 15. Annex 125.
Volume 10.indd 360 12/14/2010 2:50:09 PM 361
10.50 In its description of the Operation, the Respondent again selectively
quotes from the CIAreport. Even this publication details the direct assistance
provided by Belgrade to the ‘RSK’ and notes that both the Bosnian Serb
Army and Belgrade dispatched re-inforcements to strengthen the SVK and
help launch counter-attacks to regain some of the lost ground. It mentions the
Serbian Volunteer Guard (personally led by Željko Ražnatović Arkan) fought
against Croatian forces. 101
10.51 The Respondent claims that after Operation Maslenica the ‘RSK’
lost confidence in UNPROFOR’s ability to protect the Serb population and
Croatian forces never retreated to the positions they held before it, despite
havingbeencalledupontodosobytheSecurityCouncil. 102Itfailstostatethat
in the same Resolution the UN Security Council also expressed deep concern
about the “lack of cooperation in recent months by the Serb local authorities”
103
and their “threats to widen the conflict. “ The Respondent admits that after
these events there was a remobilization of rebel Serb forces throughout the
‘RSK’, and that rebel Serbs removed their stored weapons, including heavy
104
weapons from UN controlled storage areas. The same Security Council
Resolution demanded the immediate return of the weapons. 105
***
10.52 In the following months, the position of the remaining Croats in
the UNPAs worsened. They were “relentlessly persecuted, suffering murder,
assaults, threats, armed theft and arson,” and UNPROFOR had to establish
protected villages and also help relocate “several hundred vulnerable civilians
106
to security in Croatia” Rebel Serb authorities imposed restrictions on the
freedom of movement of the UN Military Observers and the UN Civilian
police restricting their ability to report on ceasefire matters or humanitarian
situations. 107Serb attitudes towards the UNPROFOR “gravely deteriorated”;
several incidents were reported including the killing of at least three
UNPROFOR personnel (of which two were murdered) and threats to take
hostages or exact revenge on UNPROFOR personnel. 108
101 See Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990–1995,
Central Intelligence Agency (CIA), Vol. I, p. 268
102
103 Counter-Memorial, para. 1126.
Security Council Resolution 802 (1993), UN doc. S/RES/802, 25 January 1993, fifth
preambular paragraph.
104 Counter-Memorial, paras. 1124, 1127.
105 Security Council Resolution 802 (1993), UN doc. S/RES/802, 25 January 1993, paras. 3,
8.
106
Report of the Secretary-General pursuant to Security Council Resolution 815 (1993), UN
Doc. S/25777, 15 May 1993, para. 9.
107 Ibid., para. 14.
108 Ibid., para. 15.
Volume 10.indd 361 12/14/2010 2:50:09 PM 362
10.53 TheUNSecretaryGeneralonceagainfoundthatthenon-cooperation
oftherebelSerbswaspreventingthesuccessfulimplementionofUNPROFOR’s
mandate. He stated that the local Serb leadership was “repeatedly” told that
the “only basis for settlement was their acceptance of Croatian sovereignty
in return for guarantees of their minority rights. They never accepted this
position…” 10SerbleadersintheUNPAscontinuedtorejecttheideaofbeinga
part of Croatia, asserting t110 “minority status” within the Republic of Croatia
was unacceptable to them.
10.54 DespitetherebelSerbs’disregardfortheVancePlanandtheworsening
situation of the Croats in the UNPAs, Croatia continued to hope for a peaceful
solution while recognising that it had the right to establish control over its
entire territory. Contrary to the Respondent’s allegation, President Tuđman
did not publicly threaten that Croatia would attack the UNPAs if it considered
that UNPROFOR was unable to fulfil the terms of its mandate. 111He stated
that in the event of a failure of the peacekeeping forces to fulfil their mandate,
Croatia had the right to establish its territorial integrity inter alia by military
means. However, the use of armed force was not Croatia’s first option. The
RepublicofCroatiaconsideredthatUNPROFORshouldbegivenenforcement
powers to oblige the Serbs to comply with Security Council Resolutions, and
to do so with specific objectives against a set timetable, failing which it would
112
not agree to further extensions of UNPROFOR’s mandate.
(b) The Medak Pocket
10.55 In 1991, much of the interior of the Lika region of southern Croatia
was captured by the rebel Serb forces together with the JNA. They then
established the ‘RSK’.Almost all the Croat population in the area was killed,
expelled, or forced to seek refuge in other parts of Croatia. From April 1991,
the rebel Serbs continued shelling major Croatian cities like Zadar, Šibenik
113
and Gospić. Gospić was one of the main targets with much of the shelling
coming from the rebel Serb-controlled Medak Pocket, about 10 kilometres
away.
10.56 The rebel Serbs continued to target civilians, facilities and
infrastructure,andconductedfrequentincursionstocarryoutraids,abductions
and murders against Croatian civilians. During 1993, artillery attacks on
Gospić intensified, their severity and frequency being such that it became
practically impossible to organise everyday life and the functioning of civilian
109
This was made explicit in Resolution 815, where the Security Council stated that it
supported efforts to help define the future status of the territories comprising the UNPAs,
which were integral parts of the territory of Croatia. Security Council Resolution 815, UN
doc. S/RES/815, 30 March 1993, paras. 4-5.
110Ibid., para. 12.
111Counter Memorial, para. 1126.
112Security Council Resolution 815, UN doc. S/RES/815, 30 March 1993, para. 19.
113See Martić, paras. 317-320.
Volume 10.indd 362 12/14/2010 2:50:09 PM 363
authorities. It was This state of affairs in Gospić and its surroundings, as
11 With a view to providing a comprehensive overview of the extreme difficulties faced in
the town of Gospić find below a chronological list of the incidents that preceded the Operation
Medak Pocket in 1993 alone.
January 28 – Two mortar projectiles fired from Medak at Croatian Army positions
in Oranice and ten more at Bilaj and Ribnik;
February 3 – Over 70 mortar projectiles, 15 tank projectiles and 20 shells from
recoilless guns fired from the Medak Pocket area at Gospić and its surroundings.
Enormous material damage inflicted on civilian facilities;
February 5 – An attack by the combat helicopter S.A. 314 from the direction of
Medak, 8 Maljutka missiles were fired;
February 10 – An attempted infantry attack at night towards Klis, i.e. Bilaj, from the
direction of Divoselo and Barlete;
February 25 – An artillery attack from positions in Barlete and Njegovani on the
Croatian Army positions in Bilaj and Ribnik and the town itself. 11 wounded sol-
diers and civilians admitted to the Gospić general hospital; three ambulances were
destroyed and significant material damage caused;
March 2 – 3 Large-calibre shells fell on the town at about 11:30 p.m.;
March 16 – Artillery strikes from Medak against defenders' positions and the town
itself, wounding two civilians and one child in Gospić;
March 21 – More than 30 mortar shells fired at the town from positions in Divose-
lo;
March 22 – Another attack of greater intensity. Around 80 various calibre shells
fired;
March 23 – The intensity of artillery attacks on the frontlines and Gospić increa-
sed. Also indiscriminate strikes from multiple rocket launchers, mortar, tanks and
howitzers so that 180 missiles fell on the city alone. A general alert was sounded
in Gospić, citizens went to shelters, the material damage inflicted was incalculable.
One civilian was killed and another wounded;
April 22 – An artillery attack against Gospić, started at 6:45 a.m. More than 500
various calibre shells fell on the city by the end of the day. Two civilians were killed
and five wounded. This was one of the fiercest attacks since the war started.
April 28 – Seven artillery projectiles fell on Gospić. Provocations continue into the
next day when 2 defenders are killed by sniper and artillery fire at Croatian Army
positions in Medovača;
May 30 – Around 150 shells were fired from the Medak Pocket area at Gospić and its
surroundings. One civilian was killed and six were wounded. Attacks were directed
exclusively at civilian targets. Enormous material damage.
June 17 – Indiscriminate shelling of the wider area of Gospić. Rebel serbs used an
Orkan missile system to fire 20 projectiles into the town;
June 22 – around ten various calibre shells fired into the town;
June 30 – Four heavy-weight projectiles fired from SVK artillery positions in Vre-
bac into the town.
5 July - More heavy-weight projectiles fired;
July 6 – 12 mortar shells fired from Serb positions in Divoselo and Vrebac fell on the
town;
July 15 – In one of the fiercest artillery attacks on Gospić during the previous three
months, around 500 projectiles were fired at Gospić causing significant material
damage to civilian locations. One civilian killed and several wounded.;
Volume 10.indd 363 12/14/2010 2:50:10 PM 364
well as its importance in securing lines of communication between Dalmatia
and the rest of Croatia, that necessitated Operation Medak Pocket. 115
10.57 As a result of the Operation, the rebel Serbs were pushed back some
10 km from Gospić into the occupied territory towards Medak, liberating the
rebel Serb-occupied strongholds of Divoselo, Čitluk and Počitelj from where
Gospić and its surroundings had been shelled every day. Although Gospić
remainedwithintherangeoftheSVKheavyartillery,theoperationeliminated
a direct threat to the civilian population and ensured the basic preconditions
for the normalization of life and the functioning of the economy and transport
links within a wider area.
10.58 The Respondent makes various allegations regarding the limited
Croatian operations in the Medak Pocket that sought to eliminate the threat
posed to Gospić by Serb shelling, It alleges inter alia that the Croatian
attack was accompanied by ethnic cleansing and arbitrary executions and the
destruction and damage of certain hamlets in the area. 116 The allegations of
ethnic cleansing and arbitrary executions are unsupported by any evidenc▯e.
10.59 The Respondent’s selective use of evidence is clear: it cites a
November 1993 Report of the Special Rapporteur of the Commission on
Human Rights with regard to the events in the Medak Pocket, but not the
Final Report of the UN Commission of Experts, on the Medak Investigation,
of 28 December1994. After a detailedinvestigation,the UN teamfound “no
evidence implicating any specific identifiable individual in the direct planning,
118
instigation,ordering,commission,aidingorabettingofanyofthesecrimes.”
July 16 – Fierce artillery attacks continue;
August – Throughout August there was indiscriminate and occasional artillery stri-
kes on Gospić. Several civilians were wounded and there were continual armed
provocations.
August 5 – Several artillery projectiles fired and sporadic fire from infantry wea-
pons.
September – Throughout September there was sporadic shelling. A state of general
alert was declared in Gospić for 30 days; there were frequent armed provocations by
the SVK. Two members of the Croatian Special Police were ambushed and brutally
murdered in the Velebit area, and their bodies were found later, completely naked
and mutilated.
September 9 – The military and police Operation Medak Pocket was launched on
the 36th day of the state of general alert. On that date the rebel Serbs sporadically
shelled the town and its surroundings in retaliation for the setbacks they had suffe-
red at the battlefront, killing 4 civilians and wounding 11.
115 Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990–1995, Central
Intelligence Agency (CIA), Vol. I, p. 269.
116 Counter-Memorial, paras. 1130-1132.
117FinalreportoftheUnitedNationsCommissionofExpertsestablishedpursuanttoSecurity
Council Resolution 780 (1992), UN doc. S/1994/674/Add.2 (Vol. I) Annex VII, Medak
Investigation, 28 December 1994, Annex 126.
118 Ibid., para. 72
Volume 10.indd 364 12/14/2010 2:50:10 PM 365
Ittherefore,concentratedonindirect,i.e.commandresponsibility.Withrespect
to the one example of first hand evidence of murder – that of an 83-year-old
blind woman - it found “serious discrepancies” between two witnesses. 119The
investigation found “no convincing general pattern of the deaths occurring in
thepocket”andfoundthatthemajority(71%)ofthelocateddeadweremilitary
personnel. 120Asregardstheallegationthatthepresenceoflatexsurgicalgloves
121
indicated that the Croats were moving bodies to hide evidence, the Report
found their presence “ambiguous” and noted that these “may have simply
been ordinary precautions by the Croats to deal with the legitimate dead and
wounded anticipated in any attack. The photographs of Canbat I personnel
122
show them also using surgical gloves.” The investigation found that initial
postmortem examinations and examinations conducted by the Serb authorities
123
were “unsatisfactory” and the conclusions reached were “unreliable.” It also
found local witnesses “unreliable” or “contradictory.” 124
10.60 Admittedly, the Report concluded there was wanton destruction and
recomended that two Croatian officers be charged with war crimes. 125The
ICTY indicted Croatian Generals Ademi and Norac in relation to the events
in the Medak Pocket. 126In 2005, at the request of the Prosecutor, the cases
127
were transferred to Croatian Courts. On 30 May 2008, the Zagreb District
Court sentenced General Norac to 7 years imprisonment for war crimes, while
GeneralAdemiwasacquittedofallcharges.ItisnoteworthythattheApplicant,
unlike the Respondent, has tried and convicted senior military officials for
violations of international humanitarian law, irrespective of the ethnicity of
the victims.
10.61 The Respondent admits that immediately after the Croatian forces
launched the operation in the Medak Pocket rebel Serb forces retaliated
128
by shelling the Croat frontline and urban targets. The rebel Serb forces
mounted artillery attacks against Karlovac and targets near Zagreb were hit
129
by Orkan rockets. They also threatened to hit 20-30 other targets in Croatia.
This was in keeping with their well-established “real threat strategy” that
was introduced by the ‘RSK’ in the summer of 1993. It was based on the
119 Ibid., para. 74
120 Ibid., para. 76
121 Counter-Memorial, para. 1131.
122
Final Report of the United Nations Commission of Experts Established Pursuant to Se-
curity Council Resolution 780, Annex VII, Medak Investigation, 28 December 1994, Annex
126, para. 77.
123 Ibid., paras. 78, 80.
124 Ibid., paras. 81, 86.
125
126 Ibid., para. 107
Counter-Memorial, paras. 1133-1134. See ICTY, Ademi and Norac, IT-01-46 & IT-04-76,
Consolidated Indictment.
127 See further Chapter 2, para. 2.79.
128 Counter-Memorial, para. 1130.
129 Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990–1995, Central
Intelligence Agency (CIA), Vol. I, p. 269.
Volume 10.indd 365 12/14/2010 2:50:10 PM 366
assumption that a Croatian offensive “against the RSK would set off....large
scale counter-actions targeting vital facilities and objectives in Croatia and
resulting in demolition, destruction and manpower losses, which the Croatian
side would find unacceptable.” It was believed that this was the only way by
which the rebel Serb’s “could force Croatia to accept the Krajina and its armed
130
forces as a serious opponent and negotiating partner.”
SECTION III: CONTINUING EFFORTS TOARRIVEATA
PEACEFULSOLUTION
(1) th ed a r u v arg r e e m e nofe b r u a y993
10.62 The Respondent repeatedly alleges that Croatia sought to act
militarily and accordingly makes little mention of the various initiatives to
arrive at a peaceful settlement. For example no mention is made of the Daruvar
Agreement that came about as a result of negotiations between the Croatian
authorities and some members of the rebel Serb “government” who favoured
a peaceful solution and a normalisation of relations between Croats and Serbs.
The Daruvar Agreement was signed on 18 February 1993. It envisaged the
re-opening of roads, the return of all refugees and normal functioning of
government in Daruvar, Grubišno Polje, Nova Gradiška, Novska and Pakrac
Municipality. 131 The Agreement recognised Croatian sovereignty over the
former municipalities of Daruvar, Grubišno Polje, Nova Gradiška and Pakrac.
The “Agreement” was signed by Ivan Milas (Vice President of Croatia),
and Veljko Džakula (Deputy Prime Minister of the ‘RSK’ government and
president of the “Municipal District of Western Slavonia”) and his associates
on behalf of the rebel Serbs, 132 and was witnessed by Gerard Fischer on
behalf of UNPROFOR and two other members of the international forces.
10.63 Shortlythereafter,on20April1993,themajorityoftherepresentatives
at the first session of the first regular sitting of the “RSK Assembly” in
Okučani, expressed disapproval of the “Agreement.” 133Soon after its signing,
Džakula and his associates were removed from all political functions. Džakula
was then arrested, maltreated and imprisoned in Knin and Glina, accused of
treason. A former JNA General Aleksandar Vasiljević testified at the ICTY
130
R. Radinović, Realna pretnja na delu [Real threat at work] cited in Davor Marijan, Storm,
Zagreb, August 2010, p. 45.
131 See the Daruvar Agreement, 18 February 1993, Annex 127.
132Ibid . The associates included Dušan Ećimović (minister of information in the ‘RSK’
Government of the prime minister Zdravko Zečević), Milan Vlaisavljević, Mladen Kulić
(president of the Regional Committee of the Serb Democratic Party for Western Slavonia),
133đe Lovrić and Milan Radaković.
For eg., a representative in the ‘RSK’ Assembly from Daruvar Milan Trešnjić stated at
the session in Okučani that he did not want autonomy and local self-government, that he
could have had this before the war as well but had not wanted this. Referring to the Daruvar
Agreement he stated: “This territory is now held by the Ustashas, people want to return but
not under the Ustasha rule – never!”
134 See Igor Palija, Peacemaker, Identitet, March 2008, Annex 128.
Volume 10.indd 366 12/14/2010 2:50:10 PM 367
regarding the assault of Džakula in Knin by members of the Red Berets. 135
***
10.64 In October 1993, the UN Security Council reaffirmed the importance
of the full and prompt implementation of the peacekeeping plan, including the
provisions for demilitarization of the UNPAs. It called upon the signatories of
the plan, in particular the FRY (Serbia and Montenegro), to cooperate in the
full implementation, stressing that the first step was restoring the authority of
136
Croatiaoverthepinkzones. TheUNSecurityCouncilcalledforanimmediate
ceasefire and its unconditional implementation, and for an agreement on
confidence-building measures including the restoration of electricity, water,
and communications in all regions of Croatia, including the UNPAs. It also
called for uninterrupted traffic across the Maslenica strait and stressed in this
context the importance of opening the railroad between Zagreb and Split, the
highway between Zagreb and Županja, and the Adriatic oil pipeline. 137
10.65 In November 1993, the parties held talks on a ceasefire agreement,
agreeing to establish a military joint commission to take on practical work on
details of a ceasefire,and on economic matters, in particular issues related to
infrastructure and communications, energy and water supply. 138On 29 March
1994, Croatia and representatives of the ‘RSK’ signed a general ceasefire
agreement aimed at achieving and ensuring a lasting cessation of hostilities. 139
The Ceasefire Agreement generally held till May 1995.
10.66 The Respondent attempts to portray a picture of continuing progress.
This was not the case. Any expectations for agreement on issues of mutual
economic benefit, followed by talks on a final political settlement, were
brought to an end in April and May 1994, when the rebel Serb authorities in
Knin issued statements closing the door on political reconciliation, including
announcements of their intention to pursue full integration with other Serb
areas. Talks scheduled for 16 and 17 June 1994 were cancelled and opening
negotiations through the summer of 1994 proved impossible. 140Ambassador
13 At the ICTY, General Aleksandar Vasiljević’s stated as follows:
“The Red Berets and their ‘operations’
The second such operation was the placing of a plastic bag over the head of Veljko
Džakula who was also a political leader of Western Slavonia. I think his name is Veljko
Džakula. After they had beaten him up, they were taking him around Knin where they
accused him of high treason because he wanted to cooperate with the Croats and had
forced the Serbs to stay in Croatia, and later he was released.”
136 Security Council Resolution 871 (1993), UN doc. S/RES/871, 3 October 1993, paras. 4
137 7.
Ibid., paras. 6 and 8.
138 See Report of the Secretary-General pursuant to Security Council Resolution 871 (1993),
1 December 1993, UN Doc. S/26828, paras. 4-8. See Counter-Memorial, para. 1135.
139 Counter-Memorial, para. 1136.
140 Report of the Secretary-General pursuant to Security Council Resolution 908 (1994), 17
September 1994,
Volume 10.indd 367 12/14/2010 2:50:10 PM 368
Galbraith, the US Ambassador in Zagreb, testified to this at Milošević’s
trial.41
10.67 Thenegotiationsthenfocusedonaneconomiccooperationagreement
that envisaged co-operation with respect to the supply of water and electricity,
the opening of the Adriatic oil pipeline and the highway. An Economic
Agreement was signed on 2 December 1994. On 21 December 1994, the
Zagreb-Belgrade highway was opened in Sectors East and West. 142Despite
the Respondent’s claims of progress in the relationship between Zagreb and
the rebel Serbs, the rebel Serbs, particularly Martić, did not demonstrate any
desire to fully implement the agreement. Instead, they sought closer ties with
Serbia and the Republika Srpska.
(2) r e b esle r b ss Iv ef o u nIfIc aIo nwIt h se r Ia a n dt h rs
10.68 As political and economic negotiations were underway, the rebel
Serbs continued with an agenda supportive of ‘Greater Serbia’ and ‘one
state for all Serbs’. After the imprisonment of the supporters of the “Daruvar
Agreement”, the rebel Serb leadership headed by the president of the ‘RSK’,
Goran Hadžić, with the support of Serbia and Republika Srpska, continued
to call for the unification of all Serb-populated areas of the former SFRY
(the ‘RSK’ in Croatia and and Republika Srpska in Bosnia and Herzegovina,
respectively) with Serbia and Montenegro, i.e., then FRY. An important step
towards unification took place at a joint session of the “Assemblies” of the
‘RSK’ and Republika Srpska held in Bosanski on 24 April 1993. During
this session a joint Assembly of the two entities was established with its
seat in Banja Luka, together with a Council of Ministers which would act
as an executive “government” of the two entities, and a co-ordination Board
of senior “officials” from the two entities with particular responsibility for
143
issues of mutual interest. On 5 June 1993 the joint “Assembly” ordered a
referendum to determine the issue of unification. This referendum took place
on 19 and 20 June 1993, the question being: “Are you in favour of a sovereign
republic of Serbian Krajina, and its unification in a single state with Republika
141Doc. S/1994/1067, para. 4.
See testimony of Ambassador Galbraith at the Milošević, Transcript, 26 June 2003, p.
23149. He stated:
“The difficulty was that the Krajina Serbs refused to engage seriously for a very long
period of time on the economic and confidence-building measures. They played
ridiculous games, canceling meetings because the Croatians wanted to bring five
journalists instead of two and all sorts of insane and bizarre behaviours which indi-
cated to us, the mediators, and, I have to say, to the Croatian Government that they
weren’t serious. And when the time came following the signing of an economic and
confidence-building measures to present a political plan, they refused to even recei-
ve this plan. And you, when you had an opportunity to help, provided no help.”
142Counter-Memorial, para. 1137.
14 Nikica Barić, Srpska pobuna u Hrvatskoj, p. 198. See the Decision of the Joint session
of the “Assemblies” of the ‘RSK’ and Republika Srpska, 24 April 1993, Annex 129. See also
the Proposal of the “Assemblies” of the ‘RSK’ and Republika Srpska, 18 August 1994, Annex
130.
Volume 10.indd 368 12/14/2010 2:50:10 PM 369
Srpska and other Serb states?” The referendum result was overwhelming in
144
favour of unification (98.6 % of the registered voters answered “Yes”).
10.69 On 10 November 1994, the “Assembly” of the ‘RSK’ adopted
a Resolution entitled “Position of the RSK and Options of All-Serbian
Unification” that provided for the integration of the ‘RSK’, the FRY and
145
Republika Srpska (in Bosnia). On 29 May 1995, a “Decision of the RSK
AssemblyontheGivingofConsentfortheConstitutionalActontheProvisional
146
Constitutional Order of the Unified Republika Srpska” was adopted in Knin.
These decisions had been preceeded by numerous earlier resolutions on Serb
147
unification adopted since 1991. The Respondent is silent about all these
developments.
10.70 In an interview published in July 1995 Mile Mrkšić, a Lieutenant
General in the SVK (since convicted by the ICTY for crimes committed in
Vukovar) stated that the SVK must be properly organised, whether the ‘RSK’
was to be incorporated in a single state with the Republika Srpska, or annexed
to the FRY. On the occasion of St. Vitus’ day, he issued congratulations to
the forces under his command, expressing the hope that by the following St.
148
Vitus’Day the Serbs will be “united in the one Serb state.”
(3) e n do ft h eunprofor m a n d a t e
10.71 Ignoring the events described above, the Respondent contends that
149
in the midst of this phase of “cautious optimism” , on 12 January 1995,
President Tuđman and the Croatian Government declared that Croatia would
not agree to a further extension of UNPROFOR’s mandate and that this
14 Nikica Barić, Srpska pobuna u Hrvatskoj, p. 199.
145
S. Radulović (1996) Sudbina Krajine [Krajina’s Destiny], S.1: graph, p. 164., quoted in
Žunec, 2007:746.
146 See Minutes of the Session of the Assembly of the Republic of Serbian Krajina which
Approved the Decision on State Unification with Republika Srpska, 29 May 1995, Annex
131.
147
See for example:
Decision on the Annexation of SAO Krajina to the Republic of Serbia adopted by the
SAO Krajina’s Executive Council on 1April 1991 in Knin;
Declaration on the Unification of the Association of the Municipalities of Bosnia
Krajina and the SAO Krajina adopted in Knin on 27 June 1991;
Declaration on the Unification of RSK and RS, 31 October 1992, in Prijedor
148 Davor Marijan, Storm, Zagreb, 2010, p. 178.
See excerpt from the Interview with the SVK Lieutenant General Mile Mrkšić, Vojska
Krajine, 11 June 1995, Annex 132.
149Counter-Memorial, para. 1137.
Volume 10.indd 369 12/14/2010 2:50:10 PM 370
150
caused great concern to the UN Secretary General. The Respondent alleges
that “it appears that at least by the end of 1994 Croatia decided to pursue a
de facto policy of taking the Serb-held areas by force, while simultaneously
participating in the negotiations with the other party led by international
mediators.” 151This is not correct, and the Respondent’s claim is not supported
by the evidence before the Court.
10.72 As noted, Croatia recognised that it might have to take steps by
military means to restore its authority over the areas illegally occupied by the
rebel Serbs. However Croatia did not give up hope for a peaceful solution.
Through1993and1994thissentimentwasexpressedseveraltimesbyPresident
Tuđman. 152In late August 1994, in an interview on Croatian Television, he
demanded that the problem of the UNPAs be resolved in a peaceful way with
international assistance, failing which Croatia would resort to other means for
achieving its territorial integrity. President Tuđman stated that a final peaceful
solution could not mean a federalisation of Croatia into a “Croatian” part and
a “Serbian” part; however, in line with its Constitutional Law, Croatia was
ready to guarantee Serbs autonomy in the districts of Glina and Knin, where
they constituted a majority prior to the outbreak of the conflict. 153Responding
to a question about whether Croatia was ready to resolve the problem of the
UNPAs militarily, President Tuđman stated:
“… the Croatian army has to hold back and we even have to convince
our citizens, not just the Croatian people but all citizens of Croatia,
150 Counter-Memorial, para. 1138.
151
Ibid. A similar allegation is repeated in para. 1143. No authoratative evidence is cited in
support of this. The Respondent refers to the memoirs of General Bobetko which are clearly
not authoritative in this regard. See J. Bobetko, Sve moje bitke [All My Battles], Zagreb, 1996,
pp. 400 & 407, Counter-Memorial, Annex 50.
152 For example, on 30 June 1993, in a speech to officers of the Croatian Army, President
Tuđman expressed his understanding of the frustrations of Croatian citizens and the Army,
who wished to restore Croatian authority over the areas under Serb control since 1991. He
stated that the Croatian leadership was aspiring to integrate these areas in a peaceful way and
that, as a last resort, this would be done militarily. In the same speech, Tuđman voiced the
hope that the war would be brought to an end without further conflicts and with more efficient
action by the UN peacekeeping forces. See excerpt from Franjo Tuđman, Zna se, HDZ u borbi
za samostalnost Hrvatske [It is known: HDZ in the Struggle for the Independence of Croatia],
Zagreb, 1993, pp. 190-195, Annex 133. In December 1993, with respect to the Serb rebellion
and Croatia’s right to exercise its sovereignty over the occupied territories, the President
stated:
“We are trying to achieve this by peaceful political means, in co-operation with the
international community, but it is also our obligation to have the Croatian Armed
forces trained so that any given moment, if need be, they are able to liberate on their
own every centimetre of Croatian territory”
See “We rely on the road of peace, but also on the Croatian army”, Vjesnik, 28 December 1993,
p. 1,Annex 134 .
153 Strpljivošću do rješenja, [Patiently to the Solution], Večernji list (Zagreb), 28 August 1994,
p 3, Annex 135.
Volume 10.indd 370 12/14/2010 2:50:10 PM 371
that we must be patient so that our policy can contribute to the efforts
of democratic European and international forces to resolve this
conflict without further escalation of hostilities, and in order to create
the preconditions for establishing a new international order on the
territory of the former Yugoslavia, in South-eastern Europe, to which
Croatia belongs as a Mediterranean and Central European state, as
well as on the territory of Balkans that is constantly in turmoil. “ 154
10.73 These statements by the Croatian President, as head of state and
commander-in-chief of the armed forces, were reasonable and justified. In the
event that UN peacekeeping forces failed to fulfill the terms of their mandate,
Croatia was entitled to realize its full sovereignty and territorial integrity
by military means, if necessary. 155That said, Croatia was fully committed,
initially, to finding a political solution to the “Yugoslav crisis” and later to
the problem of the occupied territories of the Republic of Croatia. It was as a
result of this commitment, in the face of the persistent violations of the Vance
Plan by the FRY/Serbia and the rebel Serbs that Croatia sought to achieve the
objectives of the Economic Agreement in which it continued to be thwarted
by rebel Serbs. 156
10.74 Croatia’s wish not to extend UNPROFOR’s mandate after 31
March 1995, resulted from the failure of the peacekeeping forces to perform
the functions it was tasked with. The Secretary General recognised this in a
number of reports 157and noted that its only success was the withdrawal of the
158
JNAfrom the territory of Croatia. However even this was incomplete, since
the JNA continued to occupy the Prevlaka peninsula until late 1992, and had
left its weapons behind.
154
Ibid.
155 The views of the President were echoed by Croatia’s top military and political leaders. Jure
Radić, at that time the head of the Office of the President of the Republic, stated: “Croatia’s
top leadership opted for the path of negotiations ... but if this path does not lead to success, the
Croatian Army will through muscle power reach the boundaries of the Republic of Croatia.”
See Vjesnik, 2 May 1994. Similarly General Đuro Dečak, commander of the Osijek Military
District of the HV, stated: “If...peaceful means do not prove successful, we will also use
military power.” See Večernji list, 3 May 1994.
156 The success of peaceful integration and the implementation of the Economic Agreement
were not dependent on Zagreb, but rather on the readiness of Knin to fully implement the
Economic Agreement. Knin, however, did not demonstrate the required readiness; in fact the
resistance to the implementation of the Agreement grew greater among the Krajina Serbs. N.
Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia 1990-1995], Zagreb,
2005, pp 259-271, 488-492.
157 The Secretary General recognised the failure of UNPROFOR to demilitarize the UNPAs;
protectallpersonstherefromfearofarmedattack;ensurethatthelocalpolicecarriedouttheir
duties without discrimination and facilitate the return of displaced persons to their homes in
the UNPAs. See also Security Council Resolution 981 of 31 March 1995 that stated that maor
158visions of the peace-keeping plan remained to be implemented.
See inter alia Report of the Secretary-General pursuant to Security Council Resolution
871 (1993), UN Doc. S/1994/300, 16 March 1994, para. 8. Annex 125.
Volume 10.indd 371 12/14/2010 2:50:10 PM 372
10.75 Between June 1992 (when its mandate was extended by the Security
Council ) and early 1995, UNPROFOR was unable to perform it principle
task “to monitor the re-introduction of Croatian government authority in the
areascontrolledbySerbforces[…](thesocalledpinkzones).”Inastatement,
the President of the Security Council stated that:
“The Security Council reiterates its commitment to the sovereignty and
territorial integrity of the Republic of Croatia within its internationally
recognized borders. It understands the concerns of the Croatian
Government about the lack of implementation of major provisions of
the United Nations Peace-keeping Plan for Croatia. It will not accept
the status quo becoming an indefinite situation.” 160
10.76 The Secretary General also stated that the Serb side had taken
advantageofthepresenceofUNPROFORinitseffortstofreezethestatusquo,
under UNPROFOR ‘protection’, while establishing a self-proclaimed ‘State’
of the ‘Republic of Serb Krajina’. 161He stated that the prevailing situation
had “left UNPROFOR in the invidious position of, in effect, administering
a stalemate in the UNPAs.” 162In these circumstances, Croatia’s decision was
justified.
10.77 On 12 March 1995, Croatia announced its readiness to negotiate a
163
newmandateforapeacekeepingforcewiththeSecurityCouncil. Astatement
made by President Tuđman in a private meeting in late March 1995 demonstrates
that he viewed the new UN mandate and the successful implementation of
the Economic Agreement as opportunities for peaceful reintegration of the
areas under Serb control.He concluded that Croatia had achieved success by
accepting the UN Confidence Restoration Operation in Croatia (UNCRO),
since this force would acquire control over the internationally recognised
Croatian borders and hoped that the new UN mandate would enable the
establishment of Croatia’s territorial integrity, without intervention by the
CroatianArmy. 164He recognised that the restoration of Croatian control over
159Security Council Resolution 762 of 30 June 1992.
160Statement by the President of the Security Council, (S/PRST/1995/2), 17 January 1995.
161
See Report of the Secretary-General pursuant to Security Council Resolution 871 (1993),
UN Doc. S/1994/300, 16 March 1994, para. 8. Annex 125.
162Ibid., para. 10. The Secretary-General expressed similar views in his Report dated the 17
September 1994.
163In his letter to the Secretary General, President Tudman stressed that the cancellation of
the UNPROFOR mandate did not imply that Croatia was desisting from a peaceful settlement
of the conflict with the rebel Serbs and that it was instead an endeavour to reach an agreement
164ough direct negotiations between Zagreb and Knin.
The minutes from a meeting between President Tuđman with a delegation of the high-
ranking officials of Herceg-Bosnia and the HDZ of Bosnia and Herzegovina, held on 27
March 1995 in the Office of the President. An excerpt was published in Predrag Lucić (ed.),
Stenogrami o podjeli Bosne (Shorthand Notes on the Division of Bosnia), Split, Sarajevo,
2005, Book II, pp 399-448, Annex 136, wherein the President stated:
Volume 10.indd 372 12/14/2010 2:50:10 PM 373
the occupied areas by military means would lead to further losses and would
also be unacceptable to the international community. While not excluding
the possibility of a Croatian military intervention, he hoped that the new UN
mandate and the implementation of the Economic Agreement would lead to
the“erosion”ofthe‘RSK’andultimatelytothepeacefulreintegrationofthese
areas into Croatia.
10.78 The Respondent claims that the Croatian refusal to extend
the UNPROFOR’s mandate was the cause of the postponement of the
implementation of the Economic Agreement by the ‘RSK’, as well as their
rejection of the draft Zagreb-4 Plan (Z-4 Plan), and that led to “a significant
165
escalation in military activity and tension between the two sides.” This is
wrong and not supported by the evidence before the Court: this is clear from
the fact that even after Croatia agreed to the new UN mandate the rebel Serbs
failed to comply with the Economic Agreement or agree to the Z-4 Plan. In
fact they continued to pursue unification with the Republika Srpska. Croatia’s
decision not to renew UNPROFOR’s mandate merely served as an excuse to
stall progress on a political solution.
10.79 The Z-4 Plan 166 envisaged a high degree of autonomy within
Croatia for the Krajina region and provided that Eastern Slavonia, Baranja,
and Western Sirmium, and Western Slavonia would be reincorporated into
Croatia with lesser forms of autonomy. The Z-4 Plan provided for a five-year
transition period for the restoration of full sovereignty for Croatia. 167The Plan
was presented to Croatia and the rebel Serb leadership on 30 January 1995.
Croatia, with some reservations, accepted the Plan, while the Respondent
claims that the rebel Serbs declined to negotiate because of Croatia’s decision
not to extend UNPROFOR’s mandate. The evidence before the Court tells
a different story. The ‘RSK’s’ rejection of the Z-4 Plan was not prompted
by Croatia’s decision not to extend UNPROFOR’s mandate: it was part of a
policytonegotiatewithCroatiaasrepresentativesofasovereignstatewhereas
the international community recognised that the UNPAs were integral parts of
the territory of Croatia and that it had a right to preserve its territorial integrity.
168
(...) to resolve this Serb issue in Croatia providing guarantees of these national minor-
ity rights. And this process is running, the motorway is in operation, the oil pipeline
works, the railway line through Okučani will be opened for traffic, most probably by
the end of this week, and by the middle of the month the line to Belgrade as well; thus
a link between Zagreb – Europe – Belgrade – Thessalonike will be established and
we are getting ready for opening for traffic the railway line Zagreb-Knin-Split. This
means, if we manage to achieve this in this way, when we once drive through Knin
90% of the problem will be resolved.
165 Counter-Memorial, para. 1139.
166 The Z-4 Plan or the Zagreb 4 peace proposal was made by the Zagreb 4 group (also known
as the Mini Contact Group).
167 See Martić, para. 157.
168
N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia 1990-1995],
Zagreb, 2005, pp. 474-480.
Volume 10.indd 373 12/14/2010 2:50:11 PM 374
10.80 On 8 February 1995, the Assembly of the ‘RSK’ decided to postpone
the implementation of the economic agreement. 169 This affected further
negotiations on the political agreement and the officials of the ‘RSK’ refused
to accept the draft ‘Z-4 Plan’ until the extension of UNPROFOR’s mandate
had been assured.
10.81 The Respondent claims that it was Croatia’s decision not to extend the
UNPROFOR mandate that resulted in the Serb refusal to discuss the Z-4 Plan.
Infact,asshownabove,Croatia’sdecisionwastakenonlyafterthe“Assembly”
of the ‘RSK’ had adopted a series of resolutions aimed at unification with the
Republika Srpska and with Serbia. The real reasons for the Serb refusal to
implement the Z-4 Plan are clear from the 30 January 1995 communication to
the units of the SerbArmy of Krajina:
“A mini contact group headed by U.S. Ambassador Peter
Galbraith will try to impose the Z-4 Plan as the basis for
political negotiations between the Republic of Croatia and the
RSK.ThePlanhasbeendrawnupwiththeRepublicofCroatia
and at the expense of the RSK. The Plan provides for the
annulment of theVance Plan and the RSK’s relinquishment of
its political and economic sovereignty by accepting the status
of autonomy. It is the opinion of the RSK that the Plan should
be rejected, because it has not been prepared in such a manner
that would favour the interests of the RSK. It is expected that
the “mini contact group” will release the contents of the Plan
for the political solution between the Republic of Croatia and
170
the RSK in the course of 30 or 31 January 1995.”
10.82 As stated above, the non-renewal of UNPROFOR’s mandate
was merely a pretext to avoid implementing the Economic Agreement and
negotiating for a peaceful settlement. This was confirmed when Croatia agreed
to the UNCRO but the rebel Serbs failed to initiate negotiations on the Z-4
171
Plan instead expressing dissatisfaction with the new mandate. This was also
recognised by the ICTYTrial Chamber in Martić. 172
169 See Chapter 11, para. 11.18.
170 Military Post 9138, No. 32-14, Glina, 30 January 1995, Annex 137.
17 N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia], Zagreb, 2005,
pp. 489-490.
172
Martić, para. 157, which states:
“On 30 January 1995, Milan Martić, as President of the RSK, refused to accept the
Z-4 Plan, as Croatia had announced that it would not accept an extension of UNPRO-
FOR’s mandate.The mandate was eventually extended in March 1995 and focused on
reconstruction and cooperation, however Milan Martić continued to refuse to negoci-
ate the Z-4 Plan because the reshaped UNPROFOR, now called UNCRO, was not a
protection force. There is evidence that Milan Martić acted under the instruction of
Slobodan Milošević to reject the Z-4 Plan.” (emphasis added)
Volume 10.indd 374 12/14/2010 2:50:11 PM 375
173
10.83 NCRO was established on 31 March 1995. Its mandate included
performing the functions envisaged in the ceasefire agreement of 29 March
1994, facilitating the implementation of the Economic Agreement of 2
December1994,andrelevantSecurityCouncilResolutions,aswellasassisting
in controlling Croatia’s international borders with Bosnia and the FRY. 174It is
noteworthy that this Security Council Resolution recognised that:
“... major provisions of the [UN] peace-keeping plan for the Republic
of Croatia (S/23280, annex III) remain to be implemented, [...]....
also that major provisions of relevant Security Council resolutions,
in particular resolutions 871 (1993) and 947 (1994), still remain to be
implemented.”
10.84 At a meeting of their “Assembly”, at Borovo Selo on 20 May 1995,
theKrajinaSerbsrejectedthenameofUNCROonthegroundsthatitprejudged
a political solution, and rejected the operative provisions of Security Council
Resolution 981 (1995) (which treated the rebel Serb-held territories as part
of Croatia and established UNCRO’s mandate). The “Assembly” expressed
its readiness for further cooperation with the UN in the search for a peaceful
and just solution to the conflict “based on principles of impartiality and equal
honouring of the sovereign rights of the Serb nation in the Republic of Serb
Krajina.” 175
SECTION IV: OPERATION FLASH, MAY 1995
10.85 It is against this background that Operation Flash occurred. The
Respondent claims that soon after the establishment of UNCRO, Croatia
grossly violated its international obligations by conducting an all-out armed
attack against the Serb-held part of the Western Slavonia. 176The Respondent
refers to Operation Flash, claiming that there is “evidence” that it was
planned long before the incidents that served as a pretext for its launch. 177The
Respondent’s interpretation is unsupported by evidence, and is self-serving.
A reading of the limited evidence cited by the Respondent – for example,
excerpts of a book by General Bobetko - shows that even when Operation
173 Security Council Resolution 981 of 31 March 1995. It was deployed pursuant to Security
Council Resolution 990 of 28 April 1995.
174 Security Council Resolution 981 (1995), UN doc. S/RES/981, 31 March 1995, para. 3.
See also para 5 which provided that UNCRO shall be an interim arrangement to create the
conditions that will facilitate a negotiated settlement consistent with the territorial integrity
of the Republic of Croatia and which guarantees the security and rights of all communities
living in a particular area of the Republic of Croatia, irrespective of whether they constitute
in this area a majority or minority.
175 Report of the Secretary-General Submitted pursuant to Security Council Resolution 994
(1995), 9 June 1995. UN Doc. S/1995/467, para. 18.
176 Counter-Memorial, paras. 1141-1142.
177 Counter-Memorial, para. 1143.
Volume 10.indd 375 12/14/2010 2:50:11 PM 376
Flash was being planned, Croatia hoped that the matter would be resolved
peaceably.At this time, the ‘RSK’was making its own plans including issuing
orders for combat readiness and reinforcement. 178 By mid-March 1995, in
addition to its own mobilisation, 2,000 new rebel Serb soldiers were stationed
near Okučani, the construction of fortification facilities was intensified, a large
quantity of heavy artillery was dug in and helicopter landing pads and other
179
fortification facilities were constructed.
10.86 Once again, the Respondent misrepresents the facts in order to
support its case. It fails to set out the reasons for the launch of Operation Flash
and its objectives, and misrepresents the manner in which it was conducted
and its consequences. The Respondent also quotes selectively from various
Reports of the UN Secretary General and statements of the President of the
Security Council. For example, it does not refer to those portions of the Report
of the Secretary General (submitted on 9 June 1995) which set out the reasons
for Operation Flash and the events that preceeded it. The Report states:
“Tension in Sector West increased dramatically when, on 24
April, the Serb authorities closed the motorway through the
Sector for a 24-hour period in protest over the number of trucks
deniedpassagealongthemotorwaybytheEuropeanUnion(EU)/
Organization for Security and Cooperation in Europe (OSCE)
Sanctions Assistance Mission in Croatia (SAM Croatia) at the
Lipovac crossing in Sector East because their passage would
have violated the sanctions regime on the Federal Republic
of Yugoslavia (Serbia and Montenegro). Potential escalation
was averted at the time through negotiations by UNCRO
personnel.” 180
The shutting down of the motorway through Western Slavonia was in clear
violation of the EconomicAgreement.
178
In February 1995, the rebel Serbs adopted the Gvozd Plan through their Directive for the
Use of the Serbian Army of Krajina. Pursuant to this the Command of the “18th Corps of the
SVK” issued an order for increased combat readiness and reinforcement of its units. It was
tasked with inter alia with using decisive defence, prevent an incursion of Ustasha forces into
the Corps’ defence zone. See: RSK, Directive for the Use of the Serbian Army of Krajina,
February 1995, Annex 138.
17 N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia], Zagreb, 2005,
pp 490-491.
180 Report of the Secretary-General Submitted pursuant to Security Council Resolution 994
(1995), 9 June 1995,
UN Doc. S/1995/467, para 4. By closing the motorway for 24-hours the rebel Serbs wanted to
draw attention to their dissatisfaction with the behaviour of members of UNCRO who, while
controlling traffic in April 1995, had stopped a considerable number of trucks with goods and
fuel intended for the rebel Serbs.
Volume 10.indd 376 12/14/2010 2:50:11 PM 377
10.87 The Respondent also fails to mention Martić’s visit to the area where
he stated that Western Slavonia would forever remain a part of the ‘RSK’,
and that the Serbs would restore their control over the adjacent areas from
which they had been ousted by the Croatian forces in 1991. 181In addition,
the Serbs in Western Slavonia interrupted the repair works on a part of the
railway track between Zagreb and Belgrade that should have opened for traffic
182
as a part of the implementation of the Economic Agreement. UNCRO had
attempted to resolve the situation regarding the opening of the motorway
through negotiations but this ultimately failed.
10.88 The extent to which the Respondent’s depiction of Operation Flash
and its consequences is contradicted by the evidence may be seen from the
Report on the Causes and Manner of the Fall ofWestern Slavonia, produced by
rebel Serbs on 11 July 1995. 183It provides a chronological outline of attempts
by both Croatia and UNCRO to open the highway through Western Slavonia
through peaceful means. 184 This did not happen as some of the most senior
civilian and military officials of the ‘RSK’, including President Martić and
General Čeleketić, obstructed negotiations, exceeded their respective authority
and provoked a conflict in which Croatia liberated the occupied territory. 185
10.89 Moreover, the rebel Serbs in Western Slavonia committed several
criminal acts in the period preceeding Operation Flash. These included acts
of terrorism, abduction, robbery and theft resulting in at least twelve deaths.
The final straw was the wounding of one person and the abduction of another
near Ožegovci on 1 May 1995. The rebel Serbs had been given several
warnings of the possible consequences of their provocative behaviour. After
the ‘RSK’“authorities” closed the higway for one day in lateApril 1995, and
after “Supreme Council of Defence” of ‘RSK’declared on 24 April that Serb
side would probably suspend the further implementation of the Economic
Agreement, the Croatian authorities made it known that Croatian police would
secure the traffic on the highway if it was not reopened by the ‘RSK’ . 186
18 N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia], Zagreb, 2005,
18291.
Ibid., pp 490-491.
183 Report on the Causes and Manner of the Fall of Western Slavonia, produced by rebel
Serbs on 11 July 1995, Annex 140.
184 Ibid., pp. 4, 5 and 12.
185 Ibid., p. 21. The Report also states that instead of reopening the motorway as instructed
by the MUP, the SVK Main Staff ordered that combat readiness be raised to a level allowing
quick mobilisation and the transfer of units of the 18th Corps into the area of engagement and
on 28/29 April the commander of the 18th Corps ordered a total mobilisation in the territory
of Western Slavonia. The mobilisation was conducted between 28 and 30 April, with 95-100%
success. Ibid., p. 5.
18 N. Barić, Srpska pobuna u Hrvatskoj 1990-1995 [Serb Rebellion in Croatia], Zagreb, 2005,
p 491.
Volume 10.indd 377 12/14/2010 2:50:11 PM 378
10.90 Operation Flash began on 1 May 1995 and was effectively over in
30 hours. Both U.S. Envoy Richard Holbrooke and Ambassador Galbraith
supported Operation Flash because they realised the strategic importance
187
of that operation and the pressure it imposed on the Serbs. The operation,
launched with the aim of ensuring the free flow of traffic and preventing
further terror attacks on people travelling along a section of the motorway was
188
carefully planned and successfully executed. Thereafter, negotiations were
conducted with the Serb forces, and the operation was formally concluded
at 17:00 on 4 May 1995, with the surrender of around 1,400 members of the
SVK.
10.91 The UN Secretary General reported positively about the actions
of the Croatian Government after Operation Flash, referring to the “evident
effortsoftheCroatianGovernmenttoachievehighstandards ofrespectforthe
Serbs’human rights.” He also stated that the “Croatian police have reportedly
189
conducted themselves properly and with concern for the remaining…”
Similarly, the EC observer in Pakrac at that time, Günter Baron, stated that the
“Croatianoperationwasconductedexcellently,professionallyandproperly.” 190
Other observors also came to similar conclusions and found inter alia that:
“The Croatian Army demonstrated a high-degree of professionalism
and did not deliberately attack civilians.As regards prisoners, it treated
them properly and in accordance with the law of armed conflict; the
initial reports by UNCRO on plundering and mistreatment turned out
to be the product of bureaucratic inertia and were soon denied in their
191
entirety.”
18 See Minutes of the Meeting between President Franjo Truđman, Richard Holbrooke,
General Wesley Clark and Peter Galbraith, 18 August 1995 , Annex 145, p. 17.
188 According to General Zvonko Peternel, the commander of the 2nd Guards Brigade
“Gromovi” (The Thunderbolts) the Croatian forces were 16,360 strong and comprised of the
elite guards brigades, home guard regiments, reserve brigades, support brigades, Croatian
Guards Brigade, sabotage detachment of the Main Staff and the Croatian Ministry of Interior
with its special units whereas there were about 4,470 Serbs. The Serbs forces consisted of
units of the “18th Corps of the SVK” – threelightbrigades, two detachments, arocketartillery
regiment – and also disposed of a tactical group from the “1st Krajina Corps of the VRS”. See
Veterani mira [Veterans of Peace], HTV1 (Croatian Television), 1 May 2010. In their reports
the Serbs also refer to around 4,470 members of Serb forces.
189
190 Report of the Secretary-General, dated 9 June 1995 (S/1995/467), para. 15.
Ćosić, Sjevernoatlantski savez bi kvalitetnije funkcionirao da je Hrvatska u Partnerstvu
za mir [NATO would function better if Croatia were a member of the Partnership for Peace],
Vjesnik, 30April 1999.
19 O. Žunec, (1995) Okučanski zaključci [Conclusions of Okučani], Erasmus, No. 12, July
1995, p. 7. The Human Rights Watch Report, July 1995 - The Croatian Army Offensive in
Western Slavonia and its Aftermath - confirmed that Mr. Akashi, the Special Representative
of the UN Secretary General, had exaggerated claims of massive human rights violations. The
Report states:
In an unfortunate and premature assessment, U.N. officials - most notably Yasushi
Volume 10.indd 378 12/14/2010 2:50:11 PM 379
Once again the Respondent fails to mention this and other evidence that is
supportive of Croatia’s account and undermines the Respondent’s narrative.
10.92 By contrast, the actions of the rebel Serbs were not professional
nor did they comply with the provisons of international humanitarian law, as
confirmed by the Serb Report on the Causes and Manner of the Fall of Western
Slavonia, which concluded that:
As a state, the 'RSK' did not function on the territory of Western
Slavonia from the day on which the motorway was opened, to its
192
fall.
In the period before the aggression, the Serb police failed to
ensure the functioning of the rule of law in the territory of Western
193
Slavonia.
The activities within the area of competence of organs of the
Secretariat of Internal Affairs (SUP) did not succeed in preventing
uncontrolled departure of citizens for the Republic of Croatia, nor
194
the constant rise in crime.
Insteadofcarryingouttheirprofessionaltasks-relatingtothedefence
of the country and internal stability - the army and police leadership
were to a large degree engaged in politics and politicking. 195
The local political leadership of the Municipality of Okučani was
actively involved in provoking conflicts in the territory of Western
Slavonia. 196
Akashi, the secretary-general’s special representative to the former Yugoslavia -
alleged that “massive” human rights abuses by Croatian authorities had taken place
during the offensive. Evidence of widespread abuse has not emerged, however; the
information available at the time was flawed or incomplete and required further
investigation and corroboration. While Human Rights Watch/Helsinki encourages
the U.N. to condemn publicly human rights abuses by all parties to a conflict, we be-
lieve that criticism of a government’s human rights record should be commensurate
with the level of abuse and that criticisms should be as specific as possible. Because
hasty statements can remove the incentive of a government or military to abide by
international humanitarian law during subsequent military campaigns and because
unwarranted exaggeration of abuses tends to increase inter-ethnic fear and tension,
U.N. officials should take care to explain their human rights concerns clearly.
See http://www.hrw.org/legacy/reports/1995/Croatia1.htm
192 Report on the Causes and Manner of the Fall of Western Slavonia, produced by rebel
Serbs on 11 July 1995, Annex 140, p 21.
193 Ibid., pp. 20, 18.
194 Ibid., p. 20.
195
196 Ibid., pp. 20-21.
Ibid., p. 20.
Volume 10.indd 379 12/14/2010 2:50:11 PM 380
10.93 The Respondent admits that the ‘RSK’responded to Operation Flash
by firing missiles at Zagreb and the Pleso airfield, and shelling Karlovac and
Sisak on 2 and 3 May 197Seven persons were killed in the shelling of Zagreb
198
and about 214 people were injured. These attacks were condemned by the
UN Security Council. Milan Martić was directly responsibility for rocket
attacks on Croatian cities and all the civilian casualties incurred as a result of
these rocket attacks. 200The Respondent also fails to mention that during this
time, rebel Serbs removed heavy weapons from storage sites in Sector East
and obstructed the peacekeepers freedom of movement, which is also referred
201
to in the Secretary General’s Report of 9 June 1995.
10.94 TheRespondentallegesthatfollowingthismilitaryactionover10,000
Serbs left Western Slavonia; that as they fled into BH they were targeted by
Croatian forces; that on 2 August 1995 UN troops reported seeing numerous
bodies of civilians on the road and that witnesses provide accounts of the
Croatian forces attacking refugee columns consisting mainly of passenger
202
vehicles and tractors, as well as other killings. (The Respondent mistakenly
sets out the date 2August 1995 as a result it is unclear if the allegations relate
197 Counter-Memorial, para. 1142. In a newspaper article published in Serbia on 24
March 1995, Milan Čeleketić is reported as stating:
“In the case of the Ustasha aggression, we will certainly not miss the opportunity to
hit them where it hurts the most. We know their weak spots and where it hurts the
most. Weak points are the city squares and know who goes there – civilians. I have
already said this and was criticised a little. Well now, they may ask which squares
and in which cities. I shall reply that that’s a military secret. We shall make a decision
about it and I think we will be precise. It is hard to say these words because there are,
as I said, civilians in the squares, innocent people. However, if we are in was (and we
are waging a filthy war for which thet are first and foremost to blame), then there will
be no mercy. Not only will we be merciless but, as commander, I shall decided [sic]
where we shall direct our attacks, when and where it hurts the most.”▯
198 Martić, para. 318.
See Martić,paras. 303-322. At para 314, the Trial Chamber found there was evidence that
Martić had considered shelling Zagreb prior to 2 May 1995: as far back as 1992. In 1993 he
had moved LUNA rockets to the area of Banija and Kordun in order to prevent aggression or
to carry out possible attacks on Zagreb, should RSK towns come under attack. See also paras
456-468 .
199 Statement by the President of the Security Council, UN Doc. S/PRST/1995/26, 4 May
1995, para. 5.
20 On 3 May 1995, Milan Martić stated:
“As a counter measure to what Tuđman did to you here, we have shelled their cities:
Sisak several times, Zagreb yesterday and today. This was done for you. […] Today,
an ultimatum followed if they continue to attack our besieged forces, we will continue
to attack Zagreb and destroy their cities.”
See Martić, para. 319. See also para 320, which states that Martić gave the order to shell, that
he admitted to it on television and that he spoke of “massive rocket attacks on Zagreb which
would leave 100,000 people dead.”
201 Report of the Secretary-General pursuant to Security Council Resolution 994 (1995), 9
June 1995, UN Doc. S/1995/467, paragraph 7.
202
Counter-Memorial, paras. 1146- 1150 and Annexes 48 & 49.
Volume 10.indd 380 12/14/2010 2:50:11 PM 381
to Operation Storm or Operation Flash.) The Respondent also refers to UN
Security Council statements that called on Croatia “to put an end immediately
to the military offensive […] in violation of the cease-fire agreement of 29
March 1994”, and expressed deep concern at the reports regarding the human
203
rights violations of the Serb population of Western Slavonia. As stated
above, observers found the reports of human rights violations were grossly
204
exaggerated. And yet again, the Respondent fails to recognise that the same
UN Security Council Statement also called on the signatories of the Economic
Agreement, signed on 2 December 1994, to respect it, in particular, take all
necessary steps to ensure the safety and security of the Zagreb-Belgrade
motorway and its immediate environs. 205 In any event, Croatia complied with
the Security Council’s directions, as confirmed by a press release from the
Office of the President of Croatia, published on 2 May 1995. 206
10.95 Once again, the Respondent makes allegations and claims that are
not supported by the evidence before the Court. Notably, the Respondent does
not allege any act of genocide.
10.96 Moreover, there is conflicting information about the numbers
killed during Operation Flash. 207The Respondent’s claims are based on the
list compiled by the non-governmental organisation Veritas. Chapter 2 has
described the antecedents of Veritas, which significantly undermines the
208
weight that can be given to its work. More will be said about the Veritas list
in Chapter 11 infra.
10.97 Third, with response to the Respondent’s allegation that the there
203Counter-Memorial, paras. 1144-1145 citing the Statement by the President of the Security
Council, UN Doc. S/PRST/1995/23, 1 May 1995, para. 2 and Statement by the President of the
Security Council, UN Doc. S/PRST/1995/26, 4 May 1995, paras. 2, 4 & 6.
204
205 See para. 10.91 supra.
StatementbythePresidentoftheSecurityCouncil,1May1995,UNDoc.S/PRST/1995/23,
para. 3.
206 The press release from the Office of the President of Croatia, published on 2 May 1995
stated:
The operation conducted by the Croatian police forces and units of the CroatianArmy
with the aim of opening the motorway and railway across the territory ofWestern Sla-
vonia that until today was occupied has been completed.Armed Serbs ceased putting
up organised resistance and the authority of the Republic of Croatia was established
in Okučani. At 14:00 hours started negotiations on the surrender of the last big group
of armed Serbs located in the area of Pakrac. The Deputy Prime Minister visited
in person the said areas and on behalf of the President of the Republic, Dr. Franjo
Tuđman, and the Government of the Republic of Croatia gave citizens of Serb nation-
ality assurances that civil rights would be respected, and that those who were armed,
apart from those who had committed war crimes, would be guaranteed amnes▯ty
207Counter-Memorial, para. 1152.
208The Veritaslist in question dates from 2002 and was posted on Veritas’ internet site in the
form of an Excel worksheet; it is all but impossible to determine the extent to which the data
from the list differs from that of today.
Volume 10.indd 381 12/14/2010 2:50:11 PM 382
was an “exodus” of the Serb population, 209a number of points may be made
in response. Most significantly that the Serb population did not leave because
they were driven out by the Croatian forces, but their “exodus” was planned
by rebel Serb leadership. This fact is confirmed by the rebel Serb commission
210
charged with establishing responsibility for the fall of Western Slavonia
that states inter alia how some civilians and soldiers began withdrawing even
before the launch of the offensive. It specifically mentions “evacuation orders”
madebytheSVKcommanders;thedisruptivenatureoftheevacuationprocess
and the fact that soldiers and civilians were evacuating together.
10.98 In his Report of 9 June 1995, the UN Secretary-General noted that
the Croatian Government sought to encourage Serbs to remain in the Sector
and issued personal documents, including citizenship papers and passports, to
211
those who applied for them. In other words, while Croatia was encouraging
the Serbs to stay, the rebel Serbs were encouraging them to leave. Milan
Babić (then “Foreign Minister” of the ‘RSK’) told a UN official that Croatia
was engaged in a “propaganda campaign to show everybody that they are
humane.” 212In a meeting with Mr. Akashi, Special Representative of the UN
Secretary General, Milan Martić (then “President” of the ‘RSK’) insisted that
the UN facilitate the departure of the Serbs from Western Slavonia. 213 The
UN agreed to this and organized Operation Safe Passage, and to ensure that
the departures were voluntary, it had the departing Serbs sign a document
214
indicating the voluntary nature of their departure. The UN was criticised
in a number of quarters for having acted too soon and for having contributed
to the ethnic cleansing of Western Slavonia. As stated earlier, Mr. Akashi
209
Counter-Memorial, para. 1146-1147.
210 See RSK, Report of the Commission Charged with Establishing Responsibility of the
Military Organisation for the Fall of Western Slavonia, 13 July 1995, Annex 141. See also the
Report on the Causes and Manner of the Fall of Western Slavonia, produced by rebel Serbs
on 11 July 1995, Annex 140, p. 15 et seq.
211
Report of the Secretary-General of 9 June 1995, para. 14. The Periodic report submitted
by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights,
pursuant to paragraph 42 of Commission resolution 1995/89, 14 July 1995, UN Doc. A/50/287-
S/1995/575, paras, 29 also states that Serbs still living in Sector West were advised of their
righttoremainandweregivenpublicassurancesbytheGovernmentoftheRepublicofCroatia
that their rights, including the right to citizenship of the Republic of Croatia, would be fully
respected. The report also indicates that the Government of Croatia stated that persons who
had fled Western Slavonia, either during Operation Flash or afterwards, would be permitted
to return subject to certain conditions.
21 See UNPROFOR Coded Cable, Meeting with Babić , 10 May 1995, Annex 143.
213TheJuly1995,MazowieckireportedthattheSerbleadershiphadinsistedontheevacuation
of 3000-4000 people from Western Slavonia. See Periodic report submitted by Mr. Tadeusz
Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph
42 of Commission resolution 1995/89, 14 July 1995, UN Doc. A/50/287-S/1995/575, p. 8, para.
28.
214 Report of the Secretary-General submitted pursuant to Security Council Resolution 981
(1995), 3 August 1995, UN Doc. S/1995/650, para. 16 that states inter alia that some 2,170
Serbs voluntarily left Sector West under Operation Safe Passage during the period from 9 to
30 May 1995.
Volume 10.indd 382 12/14/2010 2:50:11 PM 383
stressed that the UN Agencies had been under enormous pressure from the
Knin authorities, who threatened further attacks on Zagreb, to assist the Serb
population in leaving the area after Operation Flash. 215
10.99 Another factor for the departure of the Serbs from the former UNPA
was the fact that many rebel Serbs did not wish to live in Croatia. This can be
illustrated by a statement of Milan Martić who, speaking about the Z-4 Plan at
the session of the RSKAssembly in February 1995, stated:
“Can we to agree to our own deaths? Life in Croatia would be worse
that any death. Life in Croatia – would that be any life?” 216
10.100 Further, the Counter-Memorial makes sweeping statements about
the number of Serbs that lived and fled from Western Slavonia, again without
the support of evidence. 217Organisations like the OSCE did not have complete
dataonthenumberofinhabitantsintheareaandthenumberthatleft.Estimates
provided by international organisation were modelled on data based on figures
from the 1991 census.
10.101 In any event, Croatian forces did not target civilians. The columns of
those fleeing were largely made up of armed members of the rebel Serb army
th
(members of units of the 18 Corps of the SVK as well as members of the
‘RSK’s’ MUP), military vehicles, as well as civilians, a fact also confirmed
by the rebel Serbs’ Report on the Causes and Manner of the Fall of Western
218
Slavonia. As noted above, the professional conduct of the Croatian armed
forces has been recorded in several independent reports that make it clear
that innocent civilians, whose deaths are deeply regretted, were unfortunately
caught in the crossfire and were not the object of attack. 219The CroatianArmy
was issued with Directive No. 5/94 For the Conduct of Operation Flash, that
stated:
Ensure that the law of armed conflict in respect of the treatment
of prisoners of war and the population within the occupied area
be consistently observed by all units of the Croatian Army for the
duration of combat activities, for which purpose engage besides the
215 See para. 10.15 supra.
216 See: RSK, Minutes of the RSK Assembly, 8 February 1995, Annex 146.
217While the Counter-Memorial (para. 1146) suggests that about 13,000 Serbs lived in the
area, other Serb sources, including prominent rebel Serb politicians from Western Slavonia -
Veljko Džakula, Obrad Ivanović, Stevo Harambašić, Miroslav Grozdanić, and others - stated
that from the start of the rebellion until 1995 some 6,000 persons of Serb nationality lived in
that area.
218 See: RSK, Report of the Commission Charged with Establishing Responsibility of the
Military Organisation for the Fall of Western Slavonia, 13 July 1995, Annex 141.
219InthissectiontheCounter-Claimalsomakessomefactualerrors.Forexample,presumably
the date of 2 August 1995 in paragraphs 1148 and 1149 should be 2 May 1995.
Volume 10.indd 383 12/14/2010 2:50:12 PM 384
Military Police the forces of the Ministry of Interior. 220
10.102 Finally, in response to the Respondent’s allegations with regard to
the events that allegedly took place at the village of Nova Varoš, 221 it is to
be stressed that armed members of the rebel Serb forces were also travelling
in refugee columns and occasionally carried out attacks against the Croatian
222
forces. This is also confirmed by the rebel Serbs’ Report on the Causes and
Manner of the Fall of Western Slavonia. 223
10.103 The Respondent alleges that after Operation Flash “the Croatian
forces apparently tried to remove evidence of their crimes” 224 (emphasis
added). This is based on the Report of the UN Special Rapporteur dated 14
July 1995. The quoted extract states:
“Between2and4May1995,theCroatianmilitaryreportedlyconducted
an intensive clean-up operation in the areas around Okučani, west
towards Novska and south towards the Sava River bridge. A chemical
disinfectant machine was reported in the area, bodies were seen being
loaded into trucks and, according to one reliable account, a convoy of
refrigerator trucks was seen on 3 May 1995 heading west from Okučani
along the main highway towards Zagreb. By the time international
observers were permitted entry to the area after 4 May 1995, no signs
225
of possible breaches of humanitarian law were visible.” (emphasis
added)
10.104 Again,theRespondentquotestheReportselectively.First,astheUN
investigation on Medak Pocket found, the supposed clean-up may very well
have simply been ordinary precautions by the Croatian forces to deal with the
dead and wounded anticipated in any attack. It is standard military practice
to clean up areas after combat operations, a fact that the Respondent will be
aware of. The rules governing clean-up operations were defined in 1958 in the
SFRY. 226 In cleaning up the area Croatia was not seeking to conceal evidence
220 J. Bobetko, Sve moje bitke [All My Battles], Zagreb, 1996, p. 397.
221 Counter-Memorial, paras. 1148-1149.
222
This is borne out by the testimony of one I.B., a member of the SVK, who was also
in the refugee column travelling through Nova Varoš and who inter alia noticed Serb soldiers
carrying both long and short barreled firearms. See Witness statement of I.B., Annex
142.
223 See Report on the Causes and Manner of the Fall of Western Slavonia, 11 July 1995,
Annex 140.
224
225 Counter-Memorial, para. 1151.
Periodic report submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the
Commission on Human Rights, pursuant to paragraph 42 of Commission resolution 1995/89,
UN Doc. A/50/287- S/1995/575, 14 July 1995, para. 12.
226 See Uputstvo za asanaciju bojišta [Instructions on Clearing Up the Battlefield], Federal
Secretariat for National Defence, 1958. The Instructions were essential until the end of the
JNA’s existence and were used by all warring armies. Paragraph 1 of the Instructions’ General
Provisions specifies that “asanacija” of the battlefield is “finding and collecting human and
Volume 10.indd 384 12/14/2010 2:50:12 PM 385
but, on the contrary, was fulfilling its obligations. It is clear from the UN
Special Rapporteur’s Report that none of the allegations referred to above
were established. Moreover, the comprehensive ICTY investigations of
Operation Flash did not result in any charges at all with regard to the conduct
of this operation.
10.105 A Rapporter of the Political Affairs Committee of the Council of
Europe states inter alia that he was favourably impressed with the Croatian
approachforreconstructionofthearea. 227HefoundthattheCroatianArmyhad
largely withdrawn from Western Slavonia as requested by Security Council
Resolution 994. 228
(1) t h es u m m eorf 1995:a f t e o p e r o n Fl a s h
10.106 According to the Respondent, Operation Flash confirmed to the
Serbs in the ‘RSK’ that UN peacekeepers were unable to protect them from
229
a Croatian attack. It fails to mention that the UN Forces and the Croatian
authorities had made every effort to avoid the need for an armed offensive.
This is also documented in the rebel Serbs’Report on the Causes and Manner
of the Fall of Western Slavonia. The Respondent claims that in the months
that followed, the Croatian army continued its gradual advance into the
Sector South while “the RSK forces were fighting in the Bihać pocket, in
Bosnia and Herzegovina, supporting Mr. Fikret Abdić’s forces against the
230
Bosnian Government.” It states that the Security Council, in a presidential
statement issued on 19 June 1995, called upon “the parties, and in particular
the Government of Croatia, to cease all military action in and around Sector
South” 231and alleges that Croatian forces continued with their advance in
disregardoftheSecurityCouncilpresidentialstatementanddespiteassurances
232
given by the Croatian Government.
10.107 One of the Reports of the UN Secretary-General, cited by the
Respondent, found that the Serb side was in contravention of the cease-fire
agreement and had placed several preconditions on meeting with the Croatian
military commander. The UN Secretary General also noted that the Serb side
animal corpses and their disposal (burial, incineration) and removal from the battlefield of
anything that might be dangerous or hazardous to health of people and animals. The clearing
up of the battlefield prevents water, food, soil and air pollution and thus also forestalls
infectious diseases. This was the prescribed procedure aimed at preventing the spread of
227ectious diseases, especially during warm weather.
Council of Europe, Political Affairs Committee, Memorandum on the visit to Zagreb and
Western Slavonia, June 1995, Annex 144, para. 16.
228 Ibid., para. 25.
229 Counter-Memorial, para. 1155.
230 Counter-Memorial, para. 1156.
231
Counter-Memorial, para. 1156 citing Statement by the President of the Security Council,
UN Doc. S/PRST/1995/30, 19 June 1995, para. 2.
232 Counter-Memorial, para. 1156.
Volume 10.indd 385 12/14/2010 2:50:12 PM 386
had refused an invitation of the Co-Chairman of the Steering Committee of
233
the ICFY to attend talks in Geneva. He noted:
“In addition […], moves by the Krajina Serb leadership to establish a
union with the Bosnian Serbs makes it difficult to stabilize the military
situation. While the unification of two self-proclaimed and unrecognised
entities would have no international legal validity, senior Croatian
Government officials have expressed concern about the effect of such a
move on the implementation of the economic agreement of 2 December
1994 … and the commencement of political negotiations.” 234
It is noteworthy that anAugust 1995 Report of the UN Secretary General cited
by the Respondent also found that there had been ceasefire violations by both
235
sides.
10.108 Yet again the Respondent fails to decribe the events accurately.
While stating that following Operation Flash, the SVK fought on the side
of Fikret Abdić against the army of Bosnia and Herzegovina in the Bihać
pocket, it fails to mention that Bihać was declared a “safe area” by the UN,
andthattheSVK’sengagementtherewasincompletecontraventionofseveral
236
Security Council Resolutions. With blatant disregard for these resolutions,
Serbs from the ‘RSK’ and the Republika Srpska launched an attack on Bihać,
in which the Serb group “Pauk” [Spider] took part in late 1994. This attack
was directed by Belgrade. 237 This is yet another example of the leading
233See the Report of the Secretary-General of 9 June 1995 (S/1995/467), para. 12, which
stated:
“On the Serb side, there remains a major presence in the zone of separation, including over
1,723 soldiers and 84 heavy weapons. Over 303 heavy weapons are deployed in contravention
of the 10- and 20-kilometre zones. “
234Ibid., para. 13.
235
Report of the Secretary-General Submitted pursuant to Security Council Resolution 981
(1995), UN Doc. S/1995/650, 3 August 1995, para. 4. He found inter alia that as of 30 July
1995, there were 83 reported violations of the zone of separation, 47 by the Krajina Serbs
and 36 on the Croatian side; in addition, there were 78 reported violations of the 10- and 20-
kilometre zones: 68 by the Krajina Serbs and 10 by the Croatian side.
236On6May1993theSecurityCounciladoptedResolution824,paras.3-4,whereinitdeclared
that Sarajevo, and other threatened towns, including Bihać should be treated as “safe areas”
and should be free from armed attacks and other hostile acts. It demanded the withdrawal of
all “Bosnian Serb military or paramilitary units” from these towns. Similarly on 4 June 1993
the Security Council adopted Resolution 836 whereby it extended UNPROFOR’s mandate in
order to enable it to deter attacks against the “safe areas”, to monitor the ceasefire, to promote
the withdrawal of military or paramilitary units other than those of the Government of the
Republic of Bosnia and Herzegovina and to occupy some key points on the ground, in addition
to participating in the delivery of humanitarian relief to the population.
23 As stated by General Milisav Sekulić, who then served in the General Staff of the SVK in
Knin:
“From the command aspect, an unusual construction of the command system was cre-
ated in the operation Spider. The Spider command is crucial and it is not subordinate
Volume 10.indd 386 12/14/2010 2:50:12 PM 387
role played by the Respondent’s power structures among the rebel Serbs in
Croatia. Serb attacks on Bihać continued from late 1994, and up to July 1995.
A Serb capture of Bihać would have led to the territorial unification of the
‘RSK’and the Bosnian Serb republic, and would have given the rebel Serbs in
Croatia a strong strategic advantage and aggravated the situation in Croatia’s
occupied territories. Also, the Serb capture of Bihać would have led to further
humanitarian difficulties (just days after the capture of Srebrenica), and the
killing of Muslims and Croats in the Bihać area and an influx of more refugees
238
in to Croatia.
10.109 AccordingtotheRespondent,followingOperationFlashinternational
mediators made various efforts to prevent an escalation of the crisis through
activities on the ground and under the auspices of the ICFY, but these efforts
239
were unsuccessful. Again the Respondent fails to accurately describe
the prevailing attitude of the rebel Serbs, that was directed and supported
by Serbia. As noted earlier, pursuant to various decisions and declarations,
the rebel Serb authorities rejected all UN resolutions that provided for the
restoration of Croatian authority over the ‘RSK’ and the UNPAs, and their
240
reintegration into Croatia. This attitude continued after Operation Flash.
(2) th e a l l e g a c c e p t a oefth e Z-4 p l a n sb yt hree b e se r b s
10.110 The Respondent makes reference to the Z-4 Plan (the draft political
agreement) that was presented to the parties in January 1995. In doing so
it once again contradicts itself. Initially, the Respondent stated that ‘RSK’
officials refused to receive the draft until UNPROFOR’s mandate was
renewed.” As noted above, ‘officials’ of the ‘RSK’ failed to discuss the draft
242
even after UNCRO was established. The Respondent nevertheless admits
to either the General Staff of the Army of Republika Srpska or the General Staff of
the Serb Army of Krajina. The Spider command was subordinate to Belgrade (partly
to the General Staff of theArmy of Yugoslavia and partly to a competent body of the
State Security of Serbia).”
Milisav Sekulić, Knin je pao u Beogradu [Knin Fell in Belgrade], Bad Vilbel 2001, p. 92. This
is confirmed by the head of the Security Service of the rebel Serbs in Croatia in a letter dated
6 January 1995 referring to the formation of the command outpost of the General Staff of the
SVK where he mentioned the name of Jovica Stanišić “[acting] on behalf of the Republic of
Serbia.” Security Department of the Main Staff of the Serb Army of Krajina, strictly confiden-
tial ,6 January 1995,Annex 139.
238 See Chapter 11 infra.
239
240 Counter-Memorial, para. 1157.
Acccording to the rebel Serbs, negotiations were only possible if they were seen as an
equal party, and that they continued to live in their Serb state, failing which they would opt
for a military option, as clearly articulated by Goran Hadžić in the meeting of the ‘RSK’
Assembly in Okučani, wherein he stated, “The second step consists in organising militarily,
re-grouping and liberating the area in question by military means.”
241
Counter-Memorial, para. 1139.
242 See para. 10.82 supra.
Volume 10.indd 387 12/14/2010 2:50:12 PM 388
that the ‘RSK’ officials were divided about the plan: while some were open to
it, others rejected it.243However the Respondent states that “It is a fact, … that
on 2 August 1995, Milan Babić, as Prime Minister of the RSK, accepted the
Z-4 plan.” 244 The evidence before the Court does not support that statement.
10.111 There is no evidence that Milan Babić, the ‘Prime Minister’ of
the ‘RSK’, accepted the Z-4 plan on 2 August 1995. The article by Klemenčić
and Schofield cited by the Respondent does not contain this “fact”, nor indeed
does it contain a paragraph 158. Available evidence indicates that Babić only
showedreadinessforfurthernegotiationsanddidnotaccepttheZ-4Plan.The
evidence shows he wanted to negotiate on the basis of a “modified” plan.”245”
Further, even if Babić did accept it, it would have had no legal effect because
he was not authorised to do so. “246” Only Martić, as a President of the ‘RSK’
could do so. “247“.
10.112 At a meeting held in Geneva on 3August 1995, Mr. Stoltenberg,
the Co-Chairman of the ICFY, presented the parties with a seven-point
proposal that envisaged, inter alia, negotiations on a final settlement on the
basis of the Z-4 Plan, the reopening of the Zagreb-Knin-Split railway and
the oil pipeline. These were the same conditions Croatia had set earlier. The
Respondent contends that the rebel Serb delegation was “inclined” to accept
Stoltenberg’s proposal “subject to its clearance by its political leadership”,
248
whereas the Croatian delegation rejected it straightaway. This is yet another
misrepresentation. According to the transcript of the telephone conversation
between “President” Martić and Ilija Prijić, head of ‘RSK’s’ delegation in
Geneva, 3 August 1995, Martić told Prijić that the Z-4 Plan was unacceptable
243 Counter-Memorial, para. 1157.
244 Counter-Memorial, para. 1157 citing M. Klemenčić & C. Schofield, “An Unhappy
Birthday in former Yugoslavia: A Croatian Border War”, IBRU Boundary and Security
Bulletin Summer 1995, p. 50, available at
http://www.dur.ac.uk/resources/ibru/publications/full/bsb3-2_klemencic….
245 Milan Babić, the “Prime Minister” of the ‘RSK’ met with Ambassador Galbraith on
2 August. According to the Yugoslav news agency Tanjug ,Babić told Galbraith that units
of the SVK were no longer stationed in the Bihać region and asked Galbraith to influence
Zagreb “to establish peace”. Babić apparently showed readiness for further negotiations on
the basis of “modified” Z-4 plan that would apply equally to “Western” and “Eastern” ‘RSK’.
(Republika Hrvatska, Ministarstvo vanjskih poslova, Odjel za informiranje, Dnevno izvješće
208/95, 3. kolovoza 1995.) (Daily report of the Department of Information of the Croatian
Ministry of Foreign Affairs). From this report it is clear that Babić did not accept anything
unconditionally. The Z-4 plan called for integration of the eastern part of ‘RSK’ but Babić
sought a “modified” Z-4 plan that would also give the eastern part of ‘RSK’ a special status
within Croatia.
246
Babić did not have authorization to accept the Plan from “President” Martić and the
“Assembly” of the ‘RSK’. He would have needed the approval of the “President” and
“Assembly” and the President and the Assembly had already rejected the Z-4 Plan when it was
presentedinJanuary1995.(The‘RSK’s’Constitutionstatedthatthe“Governmentandeachof
its members are responsible for their work to the President of the Republic and Assembly.”)
247 See Chapter 11, para. 11.35.
248 Counter-Memorial, para. 1158.
Volume 10.indd 388 12/14/2010 2:50:12 PM 389
249
to the ‘RSK’ and Prijić agreed with him. The constant prevarication and
the failure of the ‘RSK’/Serbia to negotiate in good faith were the reasons
why seeking a political solution, despite four years of negotiations, proved
ultimately futile.
CONCLUSION
10.113 In its conclusions to Chapter XII the Respondent makes some
significant admissions. These include the following:
The Respondent admits that the difficulties faced by UNPROFOR in
fulfilling its mandate from the very beginning of its deployment in
spring 1992, were “to a considerable extent due to the attitude of the
RSK authorities”. 250
It admits that of the difficulties faced by UNPROFOR, “of particular
importance was the RSK’s failure to fully demilitarize the UNPAs” ; 251
and
It admits that until 1995 the RSK refused “to consider options involving
reintegration of [UNPAs] into Croatia, despite the clear commitment of
the Security Council that Croatia’s sovereignty and territorial integrity
should be respected.” 252
10.114 Despite these admissions, the Respondent seeks to justify its
“failures” and “refusals” by alleging that the Croatian authorities threatened
that they would integrate the UNPAs by force, on four occasions before Storm
they undertook “large” military operations for that purpose, and in doing
so halted the progress made at the negotiating table and on the ground. 253
Unfortunately, the Respondent fails to acknowledge its own role and attitude,
and its continued control and backing to the ‘RSK’. Rather, it seeks to lay all
the blame of wrongdoing on the ‘RSK’, a non-existent entity. It fails to state
for instance that after Operation Flash it sent Mrkšić, a serving member of the
VJ, to the ‘RSK’to organise its armed forces.
10.115 YetagaintheRespondentmakesallegationsthatarenotsupported
by the evidence. Its account is inaccurate and self-contradictory. It seeks
to create an impression that Croatia relied exclusively on military options.
It ignores diplomatic actions and negotiations for peaceful integration that
continued for over four years. The Respondent admits that the rebel Serbs
refused to consider any option that would allow Croatia to regain control of
249
Dušan Viro, “Slobodan Milošević: The Anatomy of Crime”, Profil, Zagreb, 2007, pp.
375-378, Annex 164.
250 Counter-Memorial, para. 1160.
251 Ibid.
252 Ibid.
253 Ibid., paras. 1160, 1162.
Volume 10.indd 389 12/14/2010 2:50:12 PM 390
occupied territory, despite UN Security Council Resolutions. The Memorial
and Reply show the close ties and relations between the rebel-Serbs and the
Respondent, and the refusal of the rebel-Serbs to negotiate was in effect the
refusal of the Respondent to pursue a peaceful settlement.As late as 1995 the
rebel Serb leadership refused to consider the Z-4 Plan. With the Respondent,
the ‘RSK’, caused Croatia to opt for a military solution. Knin consistently
declined political negotiations on the pretext that this would mean acceptance
of Croatian authority, and it obstructed the implementation of the Economic
Agreement. Knin continued to use Croatian territory to launch attacks on
Bosnia in violation of UN Security Council resolutions. As a sovereign state
thatfounditsterritorysubjecttorebelcontrol,Croatiahadnooptionbuttotake
the reasonable and proportionate measures it did to regain control over its own
territory. Its actions and their justification were recognised internationally.
10.116 This chapter also shows that the activities, intentions and plans of
the rebel Serb leadership in Croatia continued to be directed at the fulfilment
of aspirations voiced in the 1986 SANU Memorandum, namely the creation of
a unified Serbian state in the Balkans, a ‘Greater Serbia’. In pursuing this goal,
the rebel Serb leadership enjoyed political, financial, military, and logistical
direction, control and support for which the Respondent is responsible.
10.117 Throughout Chapter XII, the Respondent attempts to establish
the existence of a “plan”. While several references are made to the existence
of a plan, or a policy, 254the Court and the Applicant are provided with no
evidence to explain its content or any evidence in support of its existence. No
actual plan is presented, nor does the Respondent provide any evidence of any
plan. The evidence presented in the Memorial and Reply shows that the only
plans Croatia had were for a peaceful settlement and to restore and uphold its
territorial integrity in accordance with international law.
Contrary to the Respondent’s allegations, Croatian forces did not set out to
empty the occupied areas of all Serbs, and did not indiscriminately target
those who stayed behind. The failure to reach a negotiated settlement and the
final military operations to reintegrate rebel Serb occupied areas into Croatia
did not mean that the Serbs living in those areas could no longer remain.
The Respondent’s use of General Bobetko’s memoirs, in support of the
allegation that the operations were to be conducted for “the cleansing of that
255
whole territory” is quoted out of context. General Bobetko’s reference to
cleansing in the context of Operation Flash is an example of the systematic
military preparations for the final operations of the Croatian Army. He was not
256
referring to ethnic cleansing, as the Respondent suggests.
254
255 See for example Counter-Memorial, paras. 1138, 1143, 1163, 1164.
256 Counter-Memorial, para. 1164.
See J. Bobetko, Sve moje bitke [All My Battles], Zagreb, 1996, p. 407 (Counter-Memorial,
Annex 50). The Memoir states as follows:
“It worked out all the assignments to the minutest detail; it was practically constantly
Volume 10.indd 390 12/14/2010 2:50:12 PM 391
10.118 Although Croatia was ready to liberate the occupied areas by
military means if necessary, Croatia was equally willing to negotiate with the
rebel Serbs in order to regain sovereignty over the occupied areas and thereby
ensure its territorial integrity. This is borne out by its various efforts set out
in the preceding pages. However, this was not to be, and in August 1995,
the Croatian authorities undertook Operation Storm to liberate the so-called
Krajina.
perfected from 1994 up to the very moment of its execution, because it was a part
of the overall plan of preparations for the final operation of the Croatian Army that
subsequently turned into “Storm” with the cleansing of the whole territory.”
The original text reads as follows:
“U njoj su razrađeni svi zadaci do detalja, gotovo od 1994. do samoga izvođenja
stalno je usavršavana, jer je ulazila u ukupan plan priprema završnih operacija Hr-
vatske vojske, koje će se posle pretočiti u “Oluju”, uz čišćenje tog celog teritorija.”
Volume 10.indd 391 12/14/2010 2:50:12 PM 392
Volume 10.indd 392 12/14/2010 2:50:12 PM 393
CHAPTER 11
OPERATION STORM
INTRODUCTION
11.1 In its Counter-Claim the Respondent’s allegation of genocide is
restricted to the “events which occurred in August 1995 and subsequent
months” against a “part of the Serbian population in Croatia, namely Serbs
1
living in the territory of the Krajina (‘Krajina Serbs’).” The Respondent
asserts that Croatia’s “military leadership prepared for the “final strike”
against the Krajina Serbs by conducting preparatory military operations”,
that a “genocidal plan” was envisaged and finalized at a meeting in Brioni,
and that the plan was executed during Operation Storm and subsequently. 2
The Respondent contends that Croatia never wanted a peaceful solution and
3
all along planned to use force to “make the Serbs disappear.” This claim is
entirely without foundation.
11.2 In order to support its case, the Respondent misrepresents or ignores
each and every fact that contradicts the claim and draws conclusions that are
totally at odds with the relevant facts and actions of the parties at that time. It
also misrepresents subsequent actions and laws of the Republic of Croatia by
citing out of date reports and ignoring a multitude of relevant facts, including
the return of Serb refugees to Croatia. These omissions, misrepresentations
and distortions of fact commence with the title of Chapter XIII 4and continue
through virtually every paragraph. Finally, the Respondent ignores many
developments and the co-operation between the parties that refute its
allegations and of which it was well aware when the Counter-Memorial was
being drafted.
11.3 In the very first paragraph, while defining the territory of Krajina
where the alleged genocide is said to have taken place, the Respondent seeks
to define the Krajina as different and separate from the rest of Croatia. This
issue has been dealt with earlier. 5 It is plain from the 1991 census that the area
1
2 Counter-Memorial, paras. 1165, 570 and 1098.
3 Counter-Memorial, paras. 1168-1173.
Counter-Memorial, paras. 1197, 1198, 1353 et seq
4 Chapter XIII of the Counter-Memorial is titled Operation Storm as the “New” Genocide
against the Serbs in Croatia. The Republic of Croatia takes strong exception to Serbia’s
reference to crimes committed during the NDH which is similar to insinuating that the Croats
are a genocidal people. It is regrettable that the Republic of Serbia raises this issue once again.
All allegations that genocide was committed by the Republic of Croatia against the Serbs in
5roatia are denied.
SeeChapter10,para.10.10.TheKrajinawasnota“specificgeographicalterritorypopulated
by people with specific social development, different from that of the rest of the population in
Volume 11.indd 393 12/14/2010 2:53:44 PM 394
in question only came under Serb control after the Serbian actions of 1990
and 1991, and only after the expulsion and killing of the non-Serb population
6
that lived there.
11.4 As set out in the preceding Chapter, from the outset of the Serb
rebellion, Croatia sought to re-integrate the territory occupied by the rebel
Serbs (who were directed, commanded, controlled or otherwise provided
substantial assistance or support by FRY/Serbia) by means of negotiations.
Croatia continued to work with the UN and other international agencies for
four years. However, rebel Serbs (together with FRY/Serbia) were unwilling
to arrive at any meaningful agreement. 7 Despite several opportunities and
initiatives they continued to delay any meaningful political dialogue, let alone
settlement. This continued through 1994 and into 1995. During this time
rebel Serbs also used Croatian territory to launch attacks in to Bosnia and
Herzegovina (‘BH’) in violation of numerous Security Council Resolutions,
with a view to acquiring and consolidating territory with the self-proclaimed
Serb Republic in BiH (Republika Srpska). Despite this, Croatia persisted with
efforts to resolve the situation peacefully. When it became evident that the
rebel Serbs had no intention of complying with Security Council Resolutions
that called for the re-integration of territory, Croatia decided to re-integrate
the occupied territories by military means.
11.5 The Applicant’s response to the Counter-Claim is as follows:
Section I describes the conflict in neighbouring BH and the
crisisinBihaćbroughtonbySerbaction.ItsetsouthowCroatian
forces, in response to a request from Bosnia, assisted the Bosnian
Army (‘ABiH’) in preventing another Srebernica in Bihać. This
joint action also prevented a consolidation of the ‘RSK’ and the
Republika Srpska (‘RS’). It also describes the Serb plans for a
further offensive while the ‘RSK’ sought to buy time to prepare
for it.
SectionIIdescribestheplanningandpreparationfortheliberation
of the occupied territories of Croatia. It refutes the Respondent’s
claim that Croatia formulated and finalized a “genocidal plan”
to make the “Serbs in Croatia disappear” at a meeting of the
military establishment of Croatia on the island of Brioni.
Croatia” as claimed by the Respondent. A map of the Vojna Krajina is at Annex 147.
6 In addition the Respondent states that the term ‘Krajina’ refers to inter alia UNPA South
which covered the area of Dalmatia, and the ‘Pink Zones’ which represented territories
under Serb control (Counter-Memorial, para. 1165). This is also wrong, as Sector South did
not encompass Dalmatia, only parts of Northern Dalmatia and Lika (a fact admitted in the
Respondent’s footnote 1042).
7 The Respondent admits this in para. 1160 of its Counter-Memorial.
Volume 11.indd 394 12/14/2010 2:53:44 PM 395
Section III provides a brief description of the final planning
and preparation for Operation Storm, describing its conduct and
the participants. This is particularly important in the light of the
Respondent’s reticence in admitting that Operation Storm was a
combat operation that involved the Croatian forces and the Army
of the ‘RSK’.
Section IV responds to the Respondent’s allegation that the
Applicant committed genocide through Operation Storm and
thereafter. It sets out the details of the evacuation plans made and
executed by the rebel Serbs during Operation Storm, and shows
that there was no unlawful shelling of civilians; no forcible mass
expulsion of Serbs from the occupied territories; no systematic
or widespread destruction of Serb property; and no targetting of
Serbs thereafter.
SECTION I: THE CONTINUING PURSUIT FOR A STATE FOR ALL
SERBS
11.6 From the outset of the conflict, Croatia’s basic goals were to stop
the war and prevent further Serbian aggression, and then to re-establish
control within its internationally recognized borders. In contravention of
several UN resolutions that called for the peaceful reintegration of the
territory under Serb control, the political and military leaders of the ‘RSK’
and the RS continued with their plans for unification within the territories of
the two internationally recognized states - Croatia and BH. This compelled
Croatia, acting in its legitimate national interest to take steps to prevent this
unification. Accordingly, Croatia took lawful and necessary steps to restore
Croatian control over the occupied areas in the event that the UN failed in its
mission. By 1995 it was apparent that the UN’s mission was unlikely to be
successful.8
(1) Mi l i t ayc t i onnBso s n:ath eB i h acrisis
11.7 Based on selected excerpts from the ‘Balkan Battlegrounds’ Report
and General Gotovina’s book, the Respondent tries to build a case that from
the end of 1994 Croatia started conducting tactical military operations in
BH with the “goal of creating conditions for an efficient attack against the
9
Krajina and …the city of Knin.” The Respondent’s description of various
8 UNPROFOR had difficulties in fulfilling its mandate from the very beginning of its
deployment and Serbia admits that this was “to a considerable extent due to the attitude of the
RSKauthorities.”Serbiaalsoadmitsthatitrefused“toconsideroptionsinvolvingreintegration
of [UNPAs] into Croatia, despite the clear commitment of the Security Council that Croatia’s
sovereignty and territorial integrity should be respected.” See Counter-Memorial, para. 1160.
9 Counter-Memorial, para. 1175 et seq.
Volume 11.indd 395 12/14/2010 2:53:44 PM 396
military actions from 1994 and 1995 distorts the facts and is not supported by
evidence before the Court. From late 1994 Croatia was drawn into events in
neighbouring Bosnia for a number of reasons. Paramount amongst these was
the continuing joint quest of the ‘RSK’ (through its army, the SVK) and the
RS(throughits army,theVojskaRepublikeSrpske,VRS)to militarilyoccupy
further territories in Bosnia to create a Greater Serbia. As set out earlier, the
rebel Serbs rejected the Z-4 Plan that offered them a high degree of autonomy,
10
“almost a state within a state.”
11.8 In Bosnia, Serb forces were waging a war against the Army of
Bosnia Herzegovina (‘ABiH’) in the Bihać area. Bihać was strategically
important for Croatia because it separated the ‘RSK’ from the RS in Bosnia
along a considerable stretch (118 km). The advance of the VRS (with the
SVK 11) in recovering the territory previously liberated by the ‘ABiH’ resulted
in the President of Bosnia requesting President to prevent attacks on Bihać
from Croatian territory. The international community also responded to
the Serbian offensive and, when UNPROFOR warnings were ignored by
13
the Serbs, NATO carried out attacks against the SVK. As stated above, the
Serb attacks on Bihać were alarming to Croatia, and Croatian forces became
engaged in those operations.
11.9 The Croatian forces’ first campaign was Operation Zima (Winter), in
14
November 1994. Its mission was to reduce the Serb pressure on the ‘ABiH’s’
5 Corps in the Bihać Pocket, which was successful. This was a critical
Croatian strategic objective for two reasons. First, if the VRS/SVK forces
overran the Bihać Pocket, it would have caused a humanitarian disaster, with
massive civilian casualties and an influx of refugees to Croatia, exacerbating
itsexistingrefugeeburden.Second,preventingthefallofBihaćandthedefeat
of the ‘ABiH’s’ 5 Corps was essential to prevent a VRS/SVK consolidation,
integrating the ‘RSK’ and the RS into a single entity. The actions in Bihać
came to a standstill because of the intervention of the Croatian troops, and the
Bihać crisis was averted in the winter of 1994. However, the RS and the ‘RSK’
had no intention of desisting from the capture of Bihać. The continuing Serb
offensive in Bihać through 1995 was an important reason for Croatia to launch
10 See para. 10.79 supra. See also Davor Marijan, “Storm”, Zagreb, August 2010, p. 49.
11
At this time the forces of the Krajina Serbs were restructured, and the command of
Operational Group Pauk (Spider) functional on 16 November. War diary of GS VSK, note for
16 November 1994.
12 H. Šarinić, Svi moji tajni pregovori sa Slobodanom Miloševićem, 1993-95 [All My Secret
Negotiations with Slobodan Milošević, 1993-95/98], pp. 70-171.
13 Davor Marijan, “Storm”, Zagreb, August 2010, p. 53. See also See Central Intelligence
Agency (May 2002), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990–1995, Vol. I, p. 249 which states that the NATO airstrike had no effect on the Serb
advance and nor did Croatia’s warning that it would intervene militarily if Bihać was about
to fall.
14 Davor Marijan, “Storm”, Zagreb, August 2010, p. 54
15 Command of the 2nd KK; str conf no. 3-36 of 16 February 1995 cited in Davor
Marijan,”Storm”, Zagreb, August 2010, p. 56.
Volume 11.indd 396 12/14/2010 2:53:44 PM 397
Operation Storm, however, the Respondent is wrong when it claims that this
operation was conducted “with the goal of creating conditions for an efficient
16
attack against Krajina and …the city of Knin.”
11.10 After the successful action in Operation Zima and a ceasefire that
commencedinearly1995,atenuouscalmprevaileduntilthespringof1995.In
April 1995, Croatian Forces mounted Operation Skok-1 (Leap 1) in the Dinara
Mountains, bordering Croatia and Bosnia.This action established control over
17
Mt Dinara and the Livno valley, and achieved the aim of securing a salient
point towards Grahovo. Again, this operation was not planned to threaten
18
Knin, as the Respondent alleges.
(2) Th e Su m m eo rf1995
11.11 Contrary to the allegation that all Croatia’s military actions were in
preparation of an attack on Knin, the HV’s first military operation in Croatia
was in Western Slavonia, on the other side of Croatia. Chapter 10 sets out
the reasons for Operation Flash which liberated Western Slavonia, after a
four day offensive in May 1995. It describes how the ‘RSK’utilized its “real
threat strategy” 19 by carrying out a series of artillery and rocket attacks on
several Croatian cities that killed 7 civilians and wounding about 214 others
in Zagreb. One rocket struck a children’s hospital in the city center. 20
11.12 Following the liberation of Western Slavonia, Milošević installed
General Mrkšić as the new commander of theArmy of the rebel Serbs. Mrkšić
was a Lieutenant General in theArmy of Yugoslavia (VJ). 21This, once again,
demonstrates the continuing control and direction of Serbia over the ‘RSK’.
Beginning in June 1995, Mrkšić’s task was to reorganize the SVK so that by
October 1995,
“We would have been able to inflict such losses as would have proved
unbearable for the Republic of Croatia. They would have to give up
on the idea of an attack and opt for a peace solution.” 22
11.13 For the Serb leadership, the conclusion of the war was approaching.
In Bosnia, the Serb forces (the VRS with SVK) were about to implement
their final strategic initiatives in Srebrenica, Žepa, and Bihać. On 1 June 1995,
Mrkšić issued an order stating:
16Counter-Memorial, para. 1175.
17Davor Marijan, “Storm”, Zagreb, August 2010, p. 56.
18Counter-Memorial, para. 1177.
19 See para. 10.93 supra.
20For details of the military operation, see Davor Marijan, “Storm”, Zagreb, August 2010,
21. 56-57.
On the role of Mrkšić see Chapters 4 and 5 generally.
22 Mrkšić Testimony: 18829:12-23 Gotovina et al Trial, 18 June 2009.
Volume 11.indd 397 12/14/2010 2:53:44 PM 398
“Soldiers and the officers of the RSK, we are entering the concluding
phase of accomplishing of our national aims and we must not allow
any further losses of people or territory.” 23
To counter Serb plans, on 4 June, the Croatian Forces, facing the combined
elements of the SVK-VRS launched, Operation Skok 2 (Leap-2), with the aim
of liberating territory and advancing towards the towns of Bosansko Grahovo
and Glamoč. 24They succeeded.
25
11.14 The Respondent mentions this Operation briefly, and again
misquotes the UN Secretary-General. The UN Secretary-General’s Report did
not note that “two Croatian army attacks on 4 and 6 June when the Kenyan
battalion camp at Civljane sustained shelling from the Croat army”. Rather, it
stated that an attack on 6 June, from the direction of Mount Dinara, “result[ed]
in several bouts of shelling, with three rounds impacting inside the Kenyan
battalion camp at Civiljane.” 26The Respondent also alleges that the Croatian
army’s actions put the UNCRO forces at risk, resulting in the President of the
Security Council issuing a warning to Croatia. The President’s statement,
set out below, does not support the Respondent’s allegation. While it does
mention Croatia it is clearly aimed at all parties to the conflict - Croatia, Serbia
and the rebel Serbs, and Bosnia:
“The Security Council looks to the parties to cooperate fully and
unconditionallywithUNCROintheperformanceofitsmandateandto
ensure the safety, security and freedom of movement of its personnel.
The Council demands that they fulfil their commitment under the
cease-fire agreement of 29 March 1994, in particular in respect of
the withdrawal of all forces and heavy weapons from the zones of
separation, and fully implement the 2 December 1994 agreement on
economic confidence-building measures. It calls upon the parties and
in particular the Government of Croatia, to cease all military action
in and around Sector South. It also calls upon all parties to respect
fully the international border between the Republic of Croatia and the
Republic of Bosnia and Herzegovina and to stop any action which
extends the conflict across this border...” 28(emphasis added).
11.15 The Respondent fails to quote another relevant paragraph from the
same statement, viz.
23See RSK, Command of the 39th Corps., Order: Problems in the Military Organisation and
the Elimination of Negative Occurrences which are one of the Causes of Defeat and Losses of
the RSK Territory, 1 June 1995, Annex 152.
24
Davor Marijan, “Storm”, Zagreb, August 2010, p. 57.
25 Counter-Memorial, paras. 1178-1179.
26Counter-Memorial, para. 1178. Report of the Secretary-General pursuant to SC Resolution
994, 9 June 1995, UN Doc. S/1995/467, para. 9.
27 Counter-Memorial, para. 1180.
28Statement by the President of the Security Council, 19 June 1995, UN Doc. S/
PRST/1995/30.
Volume 11.indd 398 12/14/2010 2:53:44 PM 399
“TheSecurityCouncilcouldnotcountenancemovesbythelocalSerb
authorities in the Republic of Croatia and the Republic of Bosnia and
Herzegovina to establish a union between them, since this would be
inconsistent with the Council’s commitment to the sovereignty and
territorial integrity of the Republic of Croatia and the Republic of
29
Bosnia and Herzegovina.”
11.16 It is clear that the President called on “all parties” to respect the
international border between the Republics of Croatia and Bosnia. The
Respondent admits however that it did no such thing. Instead, the combined
Serb forces continued to fight in the Bihać Pocket. 30On 29 June, at a meeting
in Belgrade with inter alia Mrkšić, Mladić and General Momčilo Perišić,
the Commander of the Army of Yugoslavia, Milošević advised that the
“Republika Srpsk31is ensured, we must seal it and place emphasis on the RSK
and defend it.” This confirms the Respondent’s continuing, active and direct
involvement.
(3) De v e l o p eSnin Th e‘rSK’ in1995
11.17 Thepoliticaldisagreementswithintheleadershipofthe‘RSK’during
1995 also demonstrate the extremist nature of its political elite. The “Prime
Minister” of the ‘RSK’, Borislav Mikelić showed readiness to negotiate with
Zagreb and signed an Economic Agreement with the Croatian authorities. In
accordance with the Agreement of December 1992, the highway in Western
Slavoniawasopened.However,“President”MartićwasagainsttheAgreement,
which he considered against the interests of the ‘RSK’.As a result, he ordered
the closure of the highway in lateApril 1995 and shortly thereafter the HV re-
tookWesternSlavonia.Afterthis,theAssemblyofthe‘RSK’replacedMikelić
and voted for unification with the RS in Bosnia-Herzegovina, and Mikelić
32
was proclaimed a “traitor.” Instead of opting for constructive negotiations
with Zagreb, the authorities of the ‘RSK’decided to continue with a policy of
avoiding all political compromise.
11.18 On the international front, in January 1995 Croatia had decided
against an extension of the UNPROFOR mandate. 33 In the same month
29 Ibid.
30 Serbia admits this in para. 1183.
31See Mladić’s Diary, pp. 201, 203 and 206: Milošević also stated that he would give the
Muslim-Croat Federation the areas of Vogosca and Ilijas around Sarajevo, and in exchange
“we would enlarge on account of Fikret,” meaning the Serbs would take at least some portion
of the Bihać Pocket. At another meeting on 30 June, the plan to ultimately take the Bihać
Pocket was finalized. Milošević told Mladić, Stanišić, Mrkšić and Fikret Abdić that “we must
do something so he [Abdić] can take Cazin [in the Bihać Pocket], and then it will be easier
later!”, atnex 149.
32 N. Barić, Srpska pobuna u Hrvalskoj 1990-1995 [Serb Rebellion in Croatia 1990-1995],
pp. 463-487.
33
See Chapter 10, para. 10.71 et seq.
Volume 11.indd 399 12/14/2010 2:53:44 PM 400
the Serbs turned down the Z-4 Plan. On 31 March 1995, Security Council
Resolution 981 confirmed the territorial integrity of Croatia and recognized
that major provisions of the Vance Plan remained to be implemented. Martić 35
36
rejected the new UNCRO mandate and it’s control over the borders.
11.19 At this time, the Croatian success in Mt Dinara and the Livno Valley
posed a further threat to the morale of the rebel Serbs as this territory had
previously been held by the RS. Faced with a common threat, rebel Serbs
from Croatia and the BH founded a “Joint Defence Council” on 20 February
1995, in Banja Luka. 37This was to be responsible for the defence of the people
and the territories of the two Serb countries west of the Drina.
11.20 As noted above, an attempt was made to re-organise the SVK after
the liberation of Western Slavonia. A new commanding officer (Mrkšić)
was brought in from Serbia, and a Special Unit Corps (KSJ) was created.
The situation after Operation Leap-2 highlighted the strategic importance of
Western Bosnia for the ‘ABiH’, the Serbian armies of BiH and ‘RSK’ (SVK
and VRS) and Croatia.
(4) t h ese c o n B i h acćrisis
11.21 On 11 July 1995, the Army of Republika Srpska captured the safe
38
area of Srebrenica. This was followed by the genocide at Srebrenica. It is
34 Martić’s position that the plan should not be considered at all was accepted at the
extraordinary session of the RSK Assembly held on 8 February in Knin. The Assembly
accepted the proposal of the RSK Government to break off and postpone negotiations with
the Republic of Croatia on economic and political issues until Croatia withdraws its request
for the cancellation of the mandate of UNPROFOR or until the Security Council decides to
extend the mandate of the UN peacekeeping forces in the protected zones in the territory of
the [RSK], RSK Assembly, Summary of the Minutes of the First Extraordinary Session of the
RSK, Knin, 8 February 1996, Annex 148.
35
Security Council Resolution 981 dated 31 March 1995. The role of the peacekeeping forces
was redefined, the name UNPROFOR changed to UNCRO (United Nations Confidence
Restoration Operation in Croatia) with a mandate until 30 November 1995. According to the
new mandate, UN forces were responsible for the establishment of efficient control over the
internationally recognized borders of Croatia, and for controlling and monitoring the crossing
36 military equipment and personnel from the FRY or RS into the protected areas.
Reuters, “Rebel Serb Leader Rejects UN Mandate Changes”, Branimir Grulović, 6 April
1995. See also Conclusions of the Government of the Republic of Serbian Krajina Regarding
the Negotiations on the Amendment of the Mandate of the United Nations Protective Force
in the Occupied Parts of Croatia, Knin, 30 March 1995, Annex 150. See Chapter 10, paras.
10.77-10.84.
37
38 Davor Marijan, “Storm”, Zagreb, August 2010, p. 60.
In February 2007 this Court found that the atrocities committed at Srebrenica constituted
a genocide, and the Court concluded:
“that the acts committed at Srebrenica falling within Article II (a) anof the
[Genocide] Convention were committed with the specific intent to destroy in part the
group of the Muslims of Bosnia and Herzegovina as such; and accordingly that these
Volume 11.indd 400 12/14/2010 2:53:44 PM 401
plain that thereafter the Serbs of RS had no intention of stopping their actions
39
and a new attack was mounted on Bihać. Preparations for the offensive
started after an agreement between the VRS and the SVK on 4 July. The plan
envisaged the defeat of the ‘ABiH’s’5th Corps and the establishment of Serb
authority over the entire area of the Bihać enclave, seeking to entrench Serb
strategic interests by linking all Serb territories. In addition to the VRS, the
role of the SVK was to protect the operation, by preventing possible attacks
by the Croatian army. The SVK committed two operational and one tactical
group to the attack. 40 Members from the Serbian Ministry of Interior [MUP]
41
were actively involved in the operation. On 19 July 1995, combined Serb
forces launchedan operationagainstBihać. 42On 21 July, the ‘ABiH’informed
the HVthat it had sustained heavy losses in personnel and territory; on 23 July
they informed the HVthat conditions had deteriorated beyond control and that
by the end of the day the Bihać area could be cut up into two. The following
day there was an appeal for help to the political and military authorities in
Zagreb. 43
11.22 USAmbassadorGalbraithtestifiedattheICTYthat“thelastthingthe
Croatians wanted was for Bihać to fall, then you would have a single Western
Serb entity, ‘Krajina’ and Bosnia.” 44 On 20 July 1995, Croatia’s Foreign
Minister Mate Granić wrote to the Security Council, to stress the gravity of
the situation from Croatia’s perspective. Croatia believed that the attack on
were acts of genocide, committed by members of the VRS in and around Srebrenica
from about 13 July 1995”, Bosnia, para. 297.
The Court ruled that Serbia “had violated the obligation to prevent genocide”, (Operative
Clause 5, p. 170) and that it was take steps to comply with obligations under the Convention
and to transfer individuals accused of genocide to the ICTY (Operative Clause 6, p. 170).
39
Testifying at the Milošević Trial at the ICTY, (26 June 2003, p. 23167), Ambassador
Galbraith stated:
“by July of 1995, Croatia and Bosnia were in a state of acute crisis created by the ac-
tivities of General Ratko Mladić and the Bosnian Serbs who had taken UNPROFOR
personnel as hostage, who had taken over the enclave of Srebrenica, massacred the
7.000 men and boys, who attacked Žepa, another UN protected area, had taken that
over and were in the process of attacking Bihać.”
40 M. Sekulić, Knin je pao u Beogradu [Knin Fell in Belgrade], p. 159. The newly-formed
Special Unit Corps was committed as the Second Operational Group (OG-2), and OG Pauk
was renamed into First Operational group (OG-1). See Davor Marijan, “Storm”, Zagreb,
August 2010, pp. 62-63.
41
RSK, MUP, Special Unit Directorate; no. 0814-2-6299/95 of 31 July 1995; Report cited in
Davor Marijan, Storm, Zagreb, August 2010, pp. 62-63.
42 M. Sekulić, Knin je pao a Beogradu[Knin Fell in Belgrade], pp. 160-161.
43 See Davor Marijan, “Storm”, Zagreb, August 2010, p. 63.
44 Gotovina et al, 23 June 2008, Galbraith Testimony, 4922:13-14.
45
Letter from the Secretary-General addressed to the President of the Security Council, 7
August 1995, UN Doc. S/1995/666, Annex 151, p. 1 states
“the Minister for Foreign Affairs of Croatia warned the Security Council that“the
displacement of the population of Bihać ... would be considered a serious threat to
the security and stability of Croatia ...[and] Croatia may be compelled to undertake
Volume 11.indd 401 12/14/2010 2:53:45 PM 402
Bihać was part of a coordinated set of attacks which also included Srebrenica
and Žepa, and was designed to eliminate the enclaves. At a press conference
held in Knin on 30 July, Mladić confirmed this stating that his intention was
to completely defeat the Muslims in Bihać as they were in Srebrenica and
46
Žepa.
(5) T h eA g r e e m eTnASp li : u l y1995
11.23 On 22 July 1995, Presidents Tuđman and Izetbegović signed a
mutual defence agreement in Split, calling upon Croatia to intervene militarily
in Bosnia both to assist Bihać and to continue coordination and cooperation in
47
defence activities. In the relevant part, theAgreement provided as follows:
“the Republic and Federation of Bosnia-Herzegovina have called
upon the Republic of Croatia to extend urgent military and other
assistance in the defence against aggression, especially in the area of
Bihać, which the Republic of Croatia has accepted”
Agreement has also been reached on the continuation of cooperation and
constant coordination of defence activities between Croatia and Bosnia-
Herzegovina.” 48
11.24 The Respondent contends that although the “official explanation” for
the agreement was to lend military support to Bosnia, “it was obvious…this
agreement was only another step towards achieving their primary goal – the
takeover of the Krajina by force.” Croatia did repeatedly try to integrate
the occupied areas, and also provided military support to Bosnia to prevent a
second Srebernica in Bihać. The ‘Balkan Battlegrounds’Report on which the
Respondent relies states that when the “Bosnian government recognised that
it might not be able to save Bihać on its own, it was natural for it to ask for
Croatian urgent military assistance.” 50
(6) Ju l y1995: o p e A Ti o Lj e t-95 (Su m m e -r5)
11.25 On the basis of the SplitAgreement of 25 July 1995, Croatian forces
necessary measures to secure its status and territory.”
46 See RSK, State Information Agency, Statement of Ratko Mladić, Knin, 30 July 1995,
47nex 153.
Serbia wrongly states that the Agreement was signed on 22 July 1991, Counter-Memorial,
para. 1182.
48 Declaration on the Implementation of the Washington Agreement, Joint Defense Against
Serb Aggression and Reaching a Political Solution Congruent with the Efforts of the
International Community, Split, 22 July 1995, Annex 155.
49
50 Counter-Memorial, para. 1182.
Central Intelligence Agency (May 2002), Balkan Battlegrounds: A Military History of the
Yugoslav Conflict 1990–1995, Vol. I, p. 364.
Volume 11.indd 402 12/14/2010 2:53:45 PM 403
launchedOperationLjeto (Summer-95)torelievepressureontheBihaćPocket
by taking the strategically important towns of Grahovo and Glamoč. The
intention was to stop that offensive against Bihać and draw the Serb forces
towards the LivnoValley. 51 In this context, for the first time the Counter-Claim
refers to the use of the force by the ‘RSK’when it admits that:
“At the same time, the RSK, pressured by Croatian military actions,
conducted – together with Muslim forces loyal to Mr. Fikret Abdić
– military action against the Bosnian Army 5 thCorps in the Bihać
52
pocket.”
53
The Respondent seeks to portray this as a benign act; it was not.
11.26 The Serb attacks on Bihać demonstrated the continuing aggressive
intentions of the rebel Serbs in Croatia and BH with the support and
encouragement of FRY/Serbia. 54In May 1995 the “President” of the Krajina,
th
Milan Martić had stressed the need to finally break the Bosnian Army’s 5
Corps in the Bihać enclave, and the need to control the Dinara Mountain
through which the Croatian forces had started drawing closer on Knin. In
addition, he wanted a military solution to the issue of the “Banija pockets”:
this presumably, meant pushing the Croatian army back from the bridgehead
alongthesouthernbankoftheKupaRiver.Heconsideredthatitwasnecessary
to “rectify eastern borders”, by which he meant capture of certain areas in
Eastern Slavonia. Finally, he stated that it was necessary to “[liberate]Western
Slavonia”, where the Serbs had recently suffered a defeat. 55
51
52 Davor Marijan, “Storm”, Zagreb, August 2010, p. 64.
Counter-Memorial, para. 1183.
53 A Report of the Secretary-General submitted pursuant to Security Council Resolution 981
(1995), 3 August 1995, UN Doc. S/1995/650, para. 9 stated as follows:
Fighting between the Bosnian Government Fifth Corps and the separatist forces of
Mr. Fikret Abdić, supported by Krajina Serb forces, flared up again. The Fifth Corps
attacked Krajina Serb-controlled territory [...]. This generated a strong reaction from
the Krajina Serbs, who used armed helicopters for the first time on 16 July 1995 and
launched a major counter-offensive on 19 July 1995. ...These operations in the Bihać
pocket have caused some 8,000 civilians to abandon their homes to escape the fight-
ing. They have sought refuge in and around the town of Cazin, where they are being
assisted by the local authorities, the [ICRC] and the Office of the United Nations
High Commissioner for Refugees (UNHCR). The extremely serious humanitarian
situation in the pocket is the result of both the fighting and the long-standing denial of
access to UNHCR convoys by the Krajina Serb authorities in Knin and Mr.Abdić.
54 In June 1995 there were a series of meetings between the commanders of Krajina Serb
Army (General Mrkšić), the Bosnian Serb Army (General Mladić) and the Commander of
Army of Yugoslavia (General Momčilo Perišić) to plan operations.
55 RSK, Office of the President of the Republic, Minutes of the Meeting between the
President of the RSK and Leaders of the Deputies’ Groups, 19 June 1995, Annex 156.
Volume 11.indd 403 12/14/2010 2:53:45 PM 404
(7) K rA Ji : in AnTi c ip Ti o noSTo r m
11.27 While arguing that the CroatianArmy used combat activity in Bihać
as a pretext for Operation Storm, the Respondent fails to mention the Serb
strategy and Serb military preparations. These developments are noted in a
Report of the Secretary General, where he stated:
“The Krajina Serbs are redeploying units to block the Bosnian Croat/
Croatian advance and have used small arms, mortars, artillery and air
strikes from the Ubdina airfield to attack Croatian positions within
Sector South. During one such air attack on 18 June, an UNCRO
observation post came under direct attack, fortunately without
significant harm to the Kenyan soldiers occupying it. There has also
been regular and frequent shelling […]
In addition to organizational changes, […] Krajina Serb forces are
believedtohaveacquirednewandmorenumerousmilitaryequipment
and arms. … The Krajina Serbs have also recently displayed new
armsandequipment,includingsmallarms,nightobservationdevices
and some re-engineered naval surface-to-surface missiles. […]
Following the setback suffered by the Krajina Serbs in Western
Slavonia (Sector West) in early May, a new military commander has
been appointed and has declared his intention to professionalize the
army and adopt a new military doctrine.Anew Special Forces Corps
has been established and located where it can intervene quickly in
either Sector South or North. Army discipline has improved, which,
in turn, has reduced, but not totally eliminated, robbery, hijackings
and threats against UNCRO personnel and equipment.” 56
11.28 In this period the rebel Serbs failed to implement the Economic
Agreement, continued the pursuit for unification with the RS, participated
in the war in Bosnia, rejected the Z-4 Plan and Security Council Resolution
981/95. These and other acts made it clear that peaceful re-integration was
impossible. Given the events in Western Bosnia, and its effects on Knin, 57the
Croatian leadership decided they had no alternative but to launch an offensive
against the rebel Serbs. This belief was strengthened by the knowledge that
the Serbs were preparing a further offensive.
56 Report of the Secretary-General submitted pursuant to Security Council Resolution 981
(1995), 3 August 1995, UN Doc. S/1995/650, paras. 7, 13.
57 The capture of Grahovo and Glamoč cut Knin off from its hinterland causing the Army
of the RSK to lose contact with the VRS 2 Krajina Corps in Drvar, Bosnia and its supply
line with the Bosnian Serbs. Links with Serb held ground were reduced to difficult, almost
impassable routes, all within range of Croatian artillery.
Volume 11.indd 404 12/14/2010 2:53:45 PM 405
(8) Th eS e r S TrA Te g : To b u yT i m e
11.29 On28July1995,Martićdeclaredastateofwarthroughoutthe‘RSK’
and mobilized its army. 58 The following day a curfew was established and
59
broadcast on TV and on radio. On 30 July, the VRS-SVK counter-offensive
plans were prepared with Mladić present in Knin to arrange and coordinate
60
further operations. At a press conference, Mladić stated that the “Croatian
formations have attacked and have entered Grahovo and partially entered
Glamoč, but I do hope we will retake these and other occupied territories
of Republika Srpska very soon.” 61 On 31 July, at a press conference Martić
stated that he had talked to the President Milošević and obtained from him
the promise that “Serbia could no longer be indifferent” if Croatia attacked
Knin. 62
11.30 In light of these events, President Tuđman held a meeting with the
senior military leadership in Brioni. Contrary to the Respondent’s claim the
meeting considered the forthcoming military operation, it did not finalize a
63
“genocidal plan.” Aware of the Serb plans, and with the knowledge that a
delay would give the Serb forces time to consolidate, Miroslav Tuđman, the
Deputy Head of the Office for National Security, outlined the problem:
“If this [Operation Storm] is postponed for two days that means
that they [the Serbs] will have four or five days until the end of the
operation, they will have time to transfer these forces and you will be
subject to an attack over there [Grahovo]. That’s their only chance to
weaken the pressure on Knin.” 64
11.31 On 2 August 1995, a joint session of the RS/ RSK Joint Defence
Council was held in Drvar (in BiH) to discuss “further coordination of
65
operations.” The meeting also resulted in an appeal to all Serbs, including
the FRY/Serbia, to assist in the defence of Serb territory. On the same day,
the ‘RSK’Civil Defence Headquarters ordered all subordinate units to prepare
for the evacuation of material assets, archives, civil registers, records and
confidential documents, movable cultural assets, money, securities and other
58 Letter from the Secretary-General addressed to the President of the Security Council, 7
August1995,UN Doc.S/1995/666,Annex 151,p.2.SeealsoRSK,SupremeDefenceCouncil,
Proclamation of the State War Throughout the RSK, 30 July 1995, Annex 157.
59
See Croatian Intelligence Administration, Situation and Activities of the SVK, 30 July
1995, Annex 158.
60 See Mladić’s Diary, p. 239,Annex 149.
61 General Ratko Mladić Speaking to the Media in Knin, 30 July 1995, Annex 154.
62 Davor Marijan, “Storm”, Zagreb, August 2010, p. 67. See also RSK, Supreme Defence
63uncil, Proclamation of the State War Throughout the RSK, 30 July 1995, Annex 157.
Counter-Memorial, 1169.
64 Brioni Transcripts, Counter-Memorial, Annex 52, p. 28.
65 See Mladić Diary, p. 240, Annex 149.
66 Letter from the Secretary-General addressed to the President of the Security Council, 7
August 1995, UN Doc. S/1995/666, p. 2. Annex 151.
Volume 11.indd 405 12/14/2010 2:53:45 PM 406
67 68
documents. Plansforevacuationhadalreadybegun. Mrkšićissuedordersfor
the defence of the ‘RSK’.The rebel Serbs were also counting on the assistance
of the VRS and the VJ. Simultaneously with these military preparations, the
Serb leadership engaged the international community in sham negotiations to
create the impression that they were willing to agree to peace. The aim was to
buy time to re-deploy and re-group with additional VRS forces from Eastern
Bosnia and retake Grahovo. 69
11.32 TheRespondentcontendsthatbythispoint“Croatiawasbynomeans
ready to accept a peaceful solution.” 70However, the document the Respondent
cites in support of this contention does not support the assertion for which it
is invoked. To the contrary, the letter cited by the Respondent states that in a
meeting with the UN Secretary General’s Special Representative, Mr.Akashi,
on 29 July 1995, President Tuđman “expressed his Government’s willingness
toparticipateinpoliticalandmilitarytalkswithKnin,butstressedthatprogress
71
on the ground must necessarily follow.” It is unclear how the Respondent
draws the conclusion that Croatia wanted war at any cost when the document
it advances clearly indicated that Croatia was willing to negotiate. President
Tuđmanalsoindicatedthatifimmediateprogresswasnotforthcoming,Croatia
would take the necessary measures to redress the situation. Specifically,
the President insisted on the re-opening of the Adriatic oil pipeline, rapid
agreement on the opening of the Zagreb-Knin-Split railway and immediate
progress on political re-integration of the Serbs from the occupied territories
on the basis of Croatia’s Constitution and Law on Minorities. These were
all demands that had been made earlier, but the Serbs had failed to comply.
The Croatian President also agreed to send representatives to Geneva for the
meeting sponsored by the ICFY on 3August. 72
11.33 The following day, on 30 July, Akashi held talks with Martić.
Requiring more time to launch their counter-attack, Martić agreed to send an
‘RSK’ delegation to Geneva. The Respondent states that the talks “secured
a six-point commitment, including a guarantee that Serbian forces would
withdraw fully from the Bihać pocket́and desist from further cross-border
interference”.”73” It contends that despite the fact that Serb forces started to
withdraw from Bihać, “President Tuđman kept setting new conditions”.”74”
The President did not set any new conditions: the conditions remained the
same as specified to Mr Akashi the day before. However the concessions
67
See inter alia RSK, Civil Defence Headquarters, Order on the Implementation of
Preparation for the Evacuation of Assets, Archives, and Records, 2 August 1995: Annex 196.
68 See para. 11.77 infra.
69 IKM GŠ VRS, str. con. no. 02/2-187 from 3 August 1995, Directive no. 8 (“Vaganj-95”).
70 Counter-Memorial, para. 1186.
71 Letter dated 7 August 1995 from the Secretary-General addressed to the President of the
72curity Council, UN Doc. S/1995/666, p. 2, para 3, Annex 151.
Ibid.
73 Counter-Memorial, para. 1187.
74 Counter-Memorial, para. 1188.
Volume 11.indd 406 12/14/2010 2:53:45 PM 407
made by the Serbs were insufficient. Even at this point, the Secretary General
noted that the “Croatian Government did, however, reaffirm its readiness to
75
participate in the talks at Geneva.”
11.34 The Respondent contends that at the meeting held in Geneva on 3
August 1995, the Croatian delegation sought immediate reintegration whereas
the Serb delegation requested that there first be a cessation of hostilities. 76
This is a complete distortion of the facts, as is clear from Martić statement of
2August 1995. He stated:
“Croatia will most likely conduct new aggression towards the RSK.
Weattemptedtodelaythisbyagreementsandnegotiationsinorderfor
it to be avoided. However, their position is precisely to gain support
for a military solution in order to stabilize themselves within, and
you know how much instability they are suffering. But if we succeed,
and I sincerely hope this will be the case, and we wait “as a host” and
defeat them, then our recognition will be truly imminent. The RSK
would then become the utmost reality, it would be realistic that we
be recognized worldwide and that Croatia be defeated, they would
be forced to shake our hands and say, the RSK exists.” 77(emphasis
added)
11.35 Yet again, the UN Secretary-General describes how the Serbs
78
continued to play for time. The Serb offer to accept the ICFY proposals “as
a useful basis for progress, subject to clearance by its political leadership”
was clearly yet another time wasting tactic. This is also obvious from the
fact that while in Chapter XII, the Respondent stated that Babić accepted the
Z-4 Plan on 2 August, 79 it is clear that he only agreed to “negotiate on the
basis of [it],” a worthless agreement without the support of Milošević and
Martić. 80 As noted earlier, while Babić was “accepting” the Z-4 plan, Martić
was instructing his chief negotiator in Geneva, Prijić, that “we cannot accept
Z-4 and to delay any agreement with Croatia, with “political talks after the
75 Letter dated 7 August 1995 from the Secretary-General addressed to the President of the
Security Council, UN Doc. S/1995/666, p. 2, para 3, Annex 151.
76
77 Counter-Memorial, para. 1189. (See also para. 1159).
See Milan Martić speaking in Ravni Kotari, 2 August 1995, Annex 161.
78 Letter dated 7 August 1995 from the Secretary-General addressed to the President of the
Security Council, UN Doc. S/1995/666, Annex 151, para. 5 states:
“After a series of bilateral meetings, [Mr Stoltenberg] the Co-Chairman presented to
the two delegations a list of seven points covering, inter alia, the reopening of the oil
pipeline, the reopening of the Zagreb-Knin-Split railway and negotiations on a final
settlement on the basis of the ‘Zagreb-4’ plan. The Croatian Serb delegation was
inclined to accept the paper as a useful basis for progress, subject to clearance by its
political leadership…” (emphasis added)
79 Counter-Memorial, para. 1157.
80 Excerpt from the testimony of Milan Babić, Milošević Trial, IT-06-90 T, p. 13256, 21
November2002,Annex162.SeealsoGotovinaetalTrial,24June2008,GalbraithTestimony,
5003:2-11. See also Chapter 10, para. 10.110 et seq.
Volume 11.indd 407 12/14/2010 2:53:45 PM 408
81
month of August.” Thus, the ‘RSK’ delegation received a command from
Knin to reject any compromise.
11.36 As “peace negotiations” in Geneva were underway, the Serb forces
were preparing an offensive. By 3 August, the Serb leadership knew that
Operation Storm would commence the next day, yet they decided to reject
peaceful reintegration, and to rely on the international community to pressure
Croatia into ending Operation Storm. 82 Jovica Stanišić (head of the State
Security of the MUPof Serbia and a close associate of Milošević) told Mrkšić
to “hold on for a couple of days and that the international community would
interfere and save Krajina.” 83Also on 3 August, the day before Operation
Storm commenced, Serb artillery shelled Dubrovnik and its surroundings,
killing at 3 least civilians and wounding others. 84
11.37 Operation Storm commenced on 4 August 1995. The Respondent
contends that Croatia only participated in the negotiations for tactical reasons,
and that by then it had decided to “destroy Krajina Serbs by the use of military
power.” 85 Once again the conclusions reached by the Respondent are not
supported by the evidence. First, Croatia had not decided to “destroy the
Krajina Serbs.” It had spent 4 years trying to arrive at a peaceful solution.
But in the face of the continuing aggressive attitude and actions of the rebel
Serb leadership it was left with little choice but to opt for a military solution.
Second, the evidence shows that even at this late stage the Serb delegation in
Geneva had been instructed not to compromise.
SECTION II: PLANNING FOR THE LIBERATION OF OCCUPIED
TERRITORY
11.38 The Respondent claims, again, that though the plan for Operation
Storm was finalized at the Brioni meeting, the decision to use military force
was made much earlier, by the end of 1994 at the latest; that from 1992 there
were ongoing efforts to strengthen the Croatian army, its combat effectiveness
and efficiency; and that it was tested through military operations in 1993
81 See Excerpts of Intercepts between Milan Martić and Ilija Prijić, Nos. 65 (3 August 1995,
08:50), 66 (3 August 1995, 12:23), 67 (3 August 1995, 14:42), pp. 7-10, Annex 163. See also
Dušan Viro, “Slobodan Milošević: The Anatomy of Crime”, Profil, Zagreb, 2007, pp. 370-
378, Annex 164.
82 See inter alia Regular Daily Report of the ‘RSK’s’ Ministry of Defence, Knin, 31 July
1995, that talks of mobilization to achieve full strength in the SVK; new recruitment; the
requisitioning of vehicles and defence preparations, Annex 159. See also SVK, General Staff,
Daily Report, 3 August 1995, Annex 160.
83 Gotovinaetal,9June2009,Mrkšić’Testimony,18955:17-22;18956:6-16.Similarly,Martić
thought that mobilisation would be carried out in Yugoslavia and that Belgrade would support
Knin. See Dušan Viro, “Slobodan Milošević: The Anatomy of Crime”, Profil, Zagreb, 2007,
pp. 370-378, Annex 164.
84 Davor Marijan, Storm, Zagreb, August 2010, p. 66.
85 Counter-Memorial, para. 1190.
Volume 11.indd 408 12/14/2010 2:53:45 PM 409
and 1994 in preparation for “the operation that would satisfy Croatia’s
strategic interests - Operation Storm.” 86 It alleges that the military operations
undertakenearlierwerenotintendedtoregainterritoriesheldby the Serbs, but
87
to “remove the Serbs” themselves. The Respondent claims that the attitude
of the Croatian authorities towards the Serbian population “crystallized into
genocidal intent at the time of operation Storm” and that this is evident from
the Brioni transcript. 88
11.39 Before examining the transcript of the Brioni Minutes, the following
brief points need to be made:
Operation Storm was not “Croatia’s strategic interests.” Its interest
wasinthere-integrationoftheoccupiedareasandtheSerbpopulation
living there on the basis of Croatia’s Constitution and Law on
Minorities, a goal recognised by the international community.
Croatia was committed to reaching a peaceful solution that would
result in the reintegration of areas under Serb control; however, its
experience in dealing with the rebel Serb authorities over four years
showed that this was futile.
AsanewStateandonethathadapproximatelyonethirdofitsterritory
under occupation by the rebel Serbs (supported and controlled by
Belgrade), it was in Croatia's interest to strengthen its army, improve
its combat readiness, operational capacity and mobility as well as
89
enhance and reorganise its staffing.
The plan for Operation Storm was not finalized during the Brioni
meeting; final military planning took place on 2 August in the War
RoomoftheMinistryofDefence,wheretheseniormilitaryleadership
was present. 90
Croatia never had a policy to "remove the Serbs" from the occupied
areas during Operation Storm, Operation Flash, or earlier; this is clear
from the attitude of the Croatian government after both Operations
Flash and Storm.
86
Counter-Memorial, paras. 1191-1193.
87 Counter-Memorial, para. 1194.
88 Counter-Memorial, para. 1194. A similar argument is made in para. 1425.
89 Contrary to what Serbia states: (para. 1191-1192), Reynaud Theunens is not a “Croatian
official” but the Prosecution’s Expert witness at the Trial of General Gotovina at the ICTY
- See Prosecutor v. Gotovina et al. (Operation Storm), no. IT-06-90. Furthermore, General
Bobetko, who allegedly stated that the Vance Plan represented a mere ‘pause’ which required
the improvement of the Croatian army combat readiness was a soldier. His views did not
represent the facts or the views of the Croatian government, which is evident from the
diplomatic history between 1991 and August 1995.
90 See para. 11.58 infra.
Volume 11.indd 409 12/14/2010 2:53:45 PM 410
Finally, Croatia had no "genocidal intent" at the time of Operation
Storm, before or after it. This is “clear” from a reading of the Brioni
transcript.
(1) Th em e eTi n gAbTr i o,i31 Ju l 1995
11.40 The developments in Bihać and political failures made it plain
that time was of the essence and Croatia could not afford any further delay.
Alternatives before Croatia were clear: either the Serbs agree to peaceful
reintegration of the occupied territory, or force would be used to liberate the
occupied territories.
11.41 On31July1995,PresidentTuđmanmetwithseniormilitaryofficials
on the island of Brioni. The participants at the meeting considered military
options for retaking Croatian territory in the event that the Serbs refused to
accept peaceful reintegration. The Brioni meeting was not a meeting of the
“highest Croatian leaders” as alleged by the Respondent, but a meeting of
Croatia’s senior military leadership. Nor was it a meeting at which political
decisions were made, but one at which the commander-in-chief of the armed
forces of a sovereign state together with senior military officials discussed
the planning and launch of a military operation for the liberation of its own
occupied territories.
11.42 The Respondent claims that virtually every member of the Croatian
92
leadership - political and military - was a part of the “genocidal plan,”
the “criminal goal” 93 of which was the permanent removal/destruction of
the Serb population from the “Krajina” by force, fear or threat of force,
94
persecution, forced displacement, looting and destruction of property. This
is not supported by any evidence: there is no statement at Brioni from which
a genocidal intent can be inferred, let alone a plan to commit genocide or
any other crimes against Serb civilians. There is no evidence of a criminal
plan to forcibly remove the Serb population from Croatia at Brioni, let alone
a genocidal one. While there was discussion regarding the use of artillery
and psychological warfare, none of it relates to genocidal or even criminal
conduct. There is no mention whatsoever of forcible displacement, killings,
destruction of property, or obstacles to return for the Serb population.
11.43 TheRespondentreliesonthemischaracterizationofastatementmade
bytheCroatianPresident.TheRespondentrepeatedlyquotesPresidentsaying,
“We have to inflict such blows that the Serbs will to all practical purposes
91 Counter-Memorial, para. 1195. See also paras. 1169 (“top Croatian political and military
leadership”);1194(“meetingoftheCroatianleadership”);paras.1195,1418(“highestCroatian
92aders”); para. 1353 (Plan “devised by top civilian and military leadership”).
93 Counter-Memorial, para. 1169.
Counter-Memorial, para. 1197.
94 Counter-Memorial, pp. 383 et seq
Volume 11.indd 410 12/14/2010 2:53:45 PM 411
95
disappear.” This alleged goal of making the Serbs “disappear” is repeated
at least 18 times in the pleading. A more complete contextual examination
of what the President said makes it clear that his reference to “Serbs” refers
to “Serbian forces”, not Serb civilians. He instructed his commanders as
follows:
“Therefore we should leave the east totally alone, and resolve the
question of the south and north. In which way do we resolve it? This
is the subject of our discussion today. We have to inflict such blows
that the Serbs will to all practical purposes disappear, that is to say, the
areas we do not take at once must capitulate within a few days. […]
Therefore our main task is not Bihać, but instead to inflict such
powerful blows in several directions that the Serbian forces will no
longer be able to recover but will have to capitulate.” 9(emphasis
added)
Theuseoftheterm“capitulate”alsopointstotheconclusionthatthestatement
refers to the capitulation of the Serbian forces, not Serb civilians.
11.44 Recognisingthattimewasoftheessence,astheSerbswerepreparing
their offensive, President Tuđman instructed the HV to complete the military
operation in “three to four days, or a maximum of eight days....” 98 The
participants at the Meeting, aware of the impending rebel Serb actions to seek
to recover lost territory urged that the Croatian offensive must be completed
within eight days.
11.45 With no evidence of any criminal plan to expel ethnic Serbs, the
Respondent is left to invite the Court to infer the existence of such a plan from
non-existent circumstantial evidence. In doing so, the Respondent also asks
the Court to ignore substantial evidence directly in conflict with its assertion.
The evidence before the Court does not support the Respondent’s claims.
(a) There was no agreement at Brioni to forcibly remove the Serb population
11.46 The participants of the Brioni Meeting knew that Serb soldiers and
civilians were already fleeing Knin and the RSK 99, and would continue to flee
95 Counter-Memorial, para. 1197.
96See eg. Counter-Memorial, paras. 1197, 1198, 1237, 1328, 1329, 1331, 1334, 1353, 1386,
1397, 1416, 1421 (repeated twice), 1422, 1425, 1431, 1447 (twice), 1462 and 1467.
97
98 Brioni Transcripts, Counter-Memorial, Annex 52, p. 2.
99 Brioni Transcripts, Counter-Memorial, Annex 52, p. 1.
The fall of Grahovo caused Serbs to flee the “Krajina” in the days before Operation Storm.
Mrkšić reported that 2000 conscripts fled after the fall of Grahovo as did civilians. See RSK,
Operations Report, 26 August 1995, Annex 165, pp.16, 20. On 29 July Mrkšić ordered units
to “take any measures in order to explain the situation in order to prevent the moving away
Volume 11.indd 411 12/14/2010 2:53:45 PM 412
“if we continue this pressure.” 100The “pressure” referred to the threat of an
HV attack, as reflected in a Croatian intelligence assessment on 30 July:
“[The seizure of Grahovo] has created conditions to threaten Knin
directly,whichcausedfearandpanicamonglocalSerbs.Itisparticularly
pronounced because they are afraid of an HV attack on the entire area
of the RSK. That is why more and more people are leaving Krajina and
101
moving to RS and the FRY.” (Emphasis added.)
(b) No Discussion about Directing Artillery against Civilians
11.47 In addition to its expulsion argument, the core of the Respondent’s
genocide claim is that the President Tuđman ordered the indiscriminate and
excessive shelling of civilians to force them to flee. 102A plain reading of the
transcript shows that President Tuđman urged his military commanders to do
exactly the opposite of what the Respondent alleges. President Tuđman told
his commanders that:
“you have to enter as quickly as possible and report that you have
entered... because that will have a psychological effect in such
situations. The psychological effect of that fall of a town is greater
than if you shell it for two days.” 103 (Emphasis added.)
Concerned with shortfalls in ammunition, President Tuđman warned against
104
using artillery ammunition “as if we were Russians or Americans.” The
Respondent’s implication that President Tuđman improperly suggested
that artillery be used in Knin to achieve “complete demoralization” 105fails
to mention the importance of Knin as the site of several legitimate military
targets. In any event the President never suggested that civilians be targeted.
(c) No Plan to Target Fleeing Civilians
11.48 ThedepartureofciviliansandsoldierswasongoingbeforeOperation
Storm and was anticipated to continue as a result of the rebel Serb leaderships’
106
position that co-existence between Croats and Serbs was impossible. At
of the population from the territory of the RSK,” and to court martial and execute deserters,
Annex 166.
100 Brioni Transcripts, Counter-Memorial, Annex 52, p. 15. (emphasis added)
101
See Croatian Intelligence Administration, Situation and Activities of the SVK, 30 July
1995, Annex 158.
102 See e.g. Counter-Memorial, paras. 1217 et seq and also 1204.
103 Brioni Transcripts, Counter-Memorial, Annex 52, p. 18.
104 Brioni Transcripts, Counter-Memorial, Annex 52, p. 21.
105
106 Counter-Memorial, para. 1217.
Both Croatian and RSK intelligence confirmed the exodus. On 2 August, HV intelligence
reported that “there was an outburst of panic in that area,” and that they had overheard an
Volume 11.indd 412 12/14/2010 2:53:46 PM 413
Brioni, Admiral Davor Domazet, Chief of the Intelligence Service of the
Croatian Army, reported that in the SVK ranks “the first problem now is how
107
to flee, and not how to fight.” In light of this, President Tuđman cautioned
that Domazet’s proposed plan was
“Not providing them with an exit anywhere .....[t]o pull out and flee;
instead, you are forcing them to fight to the bitter end ... when we put
pressure on them, now they are already partly moving out of Knin.
Accordingly, let us take into consideration, on a military level, the
possibilityofleavingthemawayoutsomewhere,so theycanpullout/
part of their forces.” 108
11.49 The Respondent admits that the participants at the Brioni meeting
discussed opening a corridor for the Serbs, but states that this was “in order to
avoidbiggerlossestotheCroatianside.” 109Croatiawasrighttoseektominimize
losses - losses to both sides to the conflict, not just to the “Croatian side.” This
reasoning was justified from a military and humanitarian perspective.
11.50 The Croatian authorities were aware of the ‘RSK’ preparations for
civilian evacuation to the Republika Srpska in Bosnia and Belgrade. 110 This
was borne out by the earlier experience in Western Slavonia in May 1995, and
Grahovo in July 1995. 111 President Tuđman never suggested that something
be done to cause the Serbs to leave; instead, given the Serb leadership’s plans
to evacuate the civilian population, he stated that they should not be forced
to stay and fight, but allowed to leave if they so chose.Accordingly, there
is nothing sinister about President Tuđman’s order that escape routes be left
open. To the contrary, this was proper because it avoided the loss of life that
would result from a “fight to the bitter end.” In fact, during Operation Storm
the Security Council insisted that Croatia allow the Serbs to leave. 112
[SVK] officer saying “the situation in Knin is the same as in Berlin in 1945…”, see Annex
167. On 3 August, SVK intelligence reported that elements of “panic” had been noted, and
“[f]urthermore, the citizens believe that we are not able to defend ourselves and that, should
there be no significant help by the FRY it would be better for the people to resettle to other
areas rather than stay here to face encirclement and death.” RSK, Security Department, Daily
Report, 3 August 1995, Annex 168. p. 4.
107 Brioni Transcripts, Counter-Memorial, Annex 52, p. 5.
108
Brioni Transcripts, Counter-Memorial, Annex 52, p. 7. President Tuđman went on to
state that “they should be given a way out here…Because it is important that those civilians
set out, and then the army will follow them, and when the columns set out, they will have a
psychological impact on each other.” Brioni Transcripts, Counter-Memorial, Annex 52, p.
15.
109 Counter-Memorial, para. 1200.
110 For e.g. Brioni Transcripts, Counter-Memorial, Annex 52, p. 15. See also Croatian
111elligence Administration, Situation and Activities of the SVK, 30 July 1995, Annex 158.
Milisav Sekulić also confirms this. In his book he gives the example of Obrovac where
at the beginning of June 1995 the local authorities launched a campaign for the population’s
collective departure, Sekulić, Knin je pao u Beogradu [Knin fell in Belgrade], 2001, pp. 148-
150. Besides, the population was moving out of the RSK for the entire duration of the war.
112ulović, Sudbina Krajine [The Fate of Krajina], 1996, p. 89.
See Security Council Resolution 1009 (1995), para 2(a). See also the Agreement between
Volume 11.indd 413 12/14/2010 2:53:46 PM 414
(d) No Discussion at Brioni regarding the destruction of property or
obstacles to return.
11.51 The Respondent does not allege that the Brioni transcript contains
anyreferencetotheuseofburningandlootingasameansofforciblyremoving
Serbs. Unlike statements whereby the Respondent attempts to falsely portray
the Brioni meeting as an agreement to destroy/expel all Serbs, there is no
statementatBrionithatsuggestsanyagreementtocommitactssuchasmurder
of civilians or the destruction of property.
11.52 Finally, since the Respondent does not allege that obstacles to return,
including alleged discriminatory civil and criminal legislative measures, were
discussed at Brioni, it is impossible to ascertain how these alleged acts could
have formed a part of Croatia’s “genocidal plan.” The Respondent has not
alleged any agreement other than Brioni and an examination of the evidence
does not allow for an inference that there was any other agreement amounting
to a “plan” to commit Genocide.
11.53 As more fully discussed in Chapter 12 below, with respect to each
alleged method of implementing its supposed “genocidal intention”, the
actions taken by Croatia both before and after the Brioni Meeting cannot
possibly justify a claim that Croatia was engaged in any genocidal or criminal
activity.
***
11.54 The Respondent raises two other issues that require brief comment.
First,itstatesthatneitherthePresidentnorotherspresentattheBrionimeeting
“invitedCroatiancommandantstorespecttherulesofhumanitarianlawduring
the …operation,” and claims that the President “provoked military officers
to think about revenge.” 113This allegation is without any foundation. There
was no discussion about humanitarian law at the Brioni meeting, as it was a
meeting of the senior military leadership to discuss strategic issues. Croatian
commandershadinstructedsoldierstorespecttherulesofhumanitarianlaw. 114
Allegations that President Tuđman incited commanders to destroy Knin, is
plainly refuted by photos and videos of Knin after Operation Storm which
show that Knin was in fact not destroyed.
Republic of Croatia and UNCRO, 6 August 1995, Annex 169, para 3.
113 Counter-Memorial, para. 1204.
114
See inter alia Republic of Croatia, Ministry of Defence, Directive Op. No. 12-4/95, 26
June 1995, Annex 170, which provided that commanders were to ensure that all HV units
complied with international humanitarian law regarding the treatment of POWs and civilians
in the occupied territories; See also Minutes of the Meetings held at the Defence Ministry of
the Republic of Croatia, 2 August 1995 Annex 172, p. 3, wherein commanders were directed
to prohibit uncontrolled conduct.
Volume 11.indd 414 12/14/2010 2:53:46 PM 415
11.55 Second, the Respondent asserts that the “Development of a plan
targeted against Krajina Serbs was also related to the guarantees prescribed by
[Croatia’s] Constitutional Law on Minorities, …enacted in 1992” . Stating115
that under this law Croatia was obliged to assign a number of seats in the
Parliament to minorities counting for more than 8% of the total population, 116
the Respondent contends that this meant that “the reintegration of the Krajina
Serbs into Croatia would lead to them being a significant political factor,
considering that the Serbs made up about 12% of the entire population of
Croatia at that time” and that this “was an additional incentive to try and
destroy the Krajina Serbs.” 117Not a shred of evidence is offered in support
of these unfounded assertions. First, this law and other Croatian laws and
executive decrees confirm that Croatia had no genocidal plan to make the
Krajina Serbs “disappear”. Rather, theAct demonstrates that Croatia hoped to
integrate the occupied territories through political and peaceful means, thereby
guaranteeing the highest standards of civil and political rights to minority
groups. 118 Second, this Constitutional Act was passed more than three years
before Operation Storm and between 1992 and 1995 the rebel Serbs did not
consider accepting or implementing it.
SECTION III: PLANNINGAND PREPARATION FOR OPERATION
STORM
11.56 General planning for the liberation of occupied Croatian territories
began in 1992. The context was that rebel Serbs had occupied some 30% of
the territory of Croatia. Over the years the plans were updated. The last plan
for Operation Storm was modified a few days before its launch, and provided
for the simultaneous attack of Croatian forces in all operational and tactical
directions,andanadvancetotheborderbetweenCroatiaandBHoveraperiod
of up to seven days.
11.57 Operational planning was governed by the HVMain Staff Directives
issued on 26 June 1995. 119The forces of the Zagreb, Karlovac, Gospić and
Split Corps Districts were given orders to start intensive preparations, along
with the required regrouping and additional mobilization to bring the forces to
astateofreadiness. 120ThisDirectiveincluded,interalia,operationalguidance
115 Counter-Memorial, para. 1199. (emphasis added)
116Constitutional Law on Human Rights and Freedoms and the Rights of Ethnic and National
Communities or Minorities in the Republic of Croatia, Official Gazette No. 3/92, entered into
force on 17 June 1992.
117 Counter-Memorial, para. 1199.
118
This unsubstantiated allegation that President Tuđman wanted the Serbs to disappear
thus “preventing them from being a political force in Croatia,” is repeated at para.1334 of the
Counter-Memorial.
119Republic of Croatia, Ministry of Defence, Directive Op. No. 12-4/95, 26 June 1995, Annex
170.
120 Ibid..
Volume 11.indd 415 12/14/2010 2:53:46 PM 416
for the use of artillery.121After the meeting there were intensive preparations
122
including the drawing up ofArtillery fire support plans.
(1) f i nAlp lAn n i nf o ro p eA Ti o St o r m
11.58 On 2August 1995, at a meeting at the Ministry of Defense in Zagreb,
Šušak, Croatia’s Minister of Defence, met with the operational commanders
to discuss the combat plans and their respective areas of operation. 123 Croatian
officials also met to discuss plans for re-establishing law and order in the
liberated terrain immediately following the liberation. 124
11.59 On 3August, a number of meetings were held to prepare for military
action. These were attended by people such as General Gotovina, Mladen
Markač (Commander of the Special units of MUP of Croatia), Marko Rajčić
(Head of Artillery of the Split MD, during the Operation Storm) and others.
By this time the Croatian leadership was aware that the Serbs were strongly
opposed to re-integration. The decision to launch Operation Storm was taken
at a meeting of the National Security Council on the evening of 3 August.
Meetings were also held with the Chiefs ofArtillery at the various Operational
groups to ensure that artillery was used in an efficient manner and so on. 125
(2) o p e A Ti o St o r m
11.60 Operation Storm was a large scale and extremely complex endeavour
involving multiple axes of attack across a lengthy confrontation line. 126While
the Respondent sets out details of the Croatian forces,it fails to mention that
forces of the SVK were involved. Operation Storm was divided by the HV
Main Staff into four segments all of which faced the SVK.
The Split Military District (MD) was to take on the North
Dalmatian Corps of the SVK;
MD Zagreb was to take on the Banija Corps of the SVK;
121Ibid., p. 6.
122 See Gotovina et al, Witness Statement of Rajčić, the Chief of Artillery of the Split MD,
Annex 173.
123
Minutes of the Meetings held at the Defence Ministry of the Republic of Croatia, 2 August
1995, Annex 172.
124Ibid. .
125For a detailed discussion of Defence Plans as well as the final HV preparation, see Davor
Marijan, Storm, Zagreb, August 2010, pp. 70- 74.
126OperationStormwasnotconductedfromfourdifferentdirectionsasstatedintheCounter-
Memorial (para. 1209) but from over 30 directions. A graphic setting out the multiple axes of
attack during Operation Storm is set out in Annex 174.
Volume 11.indd 416 12/14/2010 2:53:46 PM 417
MD Karlovac was to take on the Kordun Corps of the SVK; and
127
MD Gospić was to take on the Lika Corps of the SVK.
11.61 In its short overview on Operation Storm, the Respondent states that
theoutcomeoftheOperationStormwasneverindoubtgiventhemanpowerof
theCroatianArmy. 128Thequestionthatarisesis:Whydidn’ttheSerbleadership
in Knin, fully aware of this strength, accept a political compromise? Why did
it opt for war? The Serb leadership’s plans for continuing confrontation is
clear in a statement by the ‘RSK’s’“President” Milan Martić:
“The war between the [Republic of Croatia] and the RSK must end in
the victory of one and the defeat of the other side. Until that happens,
thewarwillnotandcannotend.[…]Wewillnotandmustnotcomeout
of this war in which we are leading now and which we shall continue
to lead wage as the defeated side to be treated as an ethnic community
and a national minority. At the end of the war, our status must be as
it was: that of a nation building people. We accepted the negotiations
withtheCroatianside,withtheinternationalcommunityasmediators,
but little can be expected to come out of the negotiations”. 129
The Respondent seeks to downplay the strength of the SVK. While Croatia
had an advantage of manpower, in terms of heavy armament (tanks and
130
artillery) the SVK was equal if not superior to the Croatian army. In any
event the comparative strength and composition of the two armies does not
have a bearing on the issue of Genocide.
11.62 Operation Storm commenced on the morning of 4 August. The Split
MDcommenceditsOperationat5AM,withasimultaneousattackonthefront
lines of the Serb forces and military objectives, including those in Knin. The
artillery barrage in Knin was directed against military targets that included the
headquarters of the SVK’s General Staff, the Northern Barracks, the TVIK
factory and the railway intersection. 131Because of available information
127 A detailed description of the role of all these forces is set out in Davor Marijan, Storm,
Zagreb, August 2010, p. 79 et seq. See also CIA, Balkan Battlegrounds: A Military History of
the Yugoslav Conflict 1990–1995, (May 2002), Vol. I, p. 367 et seq
128 Counter-Memorial, paras. 1213-1214. A similar statement regarding the comparative
129ength and composition of the HV and SVK is made at para. 1386.
Excerpt from the Speech of the President of the Republic, Milan Martić, Given at the
Briefing on the Combat Readiness of the SVK, 10 February 1995, Annex 175.
130Davor Marijan, “Storm”, Zagreb, August 2010, p. 44 states that in mid-1994, the SVK had
300 tanks, 295 various armoured battle vehicles and 360 artillery pieces of 100 mm and larger
calibre. The CIA publication relied upon by Serbia also mentions the comparative armoured
strength of the SVK. See e.g. CIA, Balkan Battlegrounds: A Military History of the Yugoslav
131flict 1990–1995, (May 2002), Vol. I, pp. 368-369.
This is admitted by Marko Vrcelj, Chief of Artillery at the SVK Headquarters in Marko
Vrcelj, “The War for Serbian Krajina: 1991-1995”, Belgrade, 2002, Annex 176, p. 6. See also
SVK, Intelligence Department, Intelligence Report, 4 August 1995, Annex 177.
Volume 11.indd 417 12/14/2010 2:53:46 PM 418
relating to the SVK’s military objectives within Knin and the need for the HV
to consolidate gains and exploit tactical success, there was also an artillery
132
barrage on the morning of 5August. The HV infantry entered Knin at 1100
hours on 5 August. 133Fortunately, the risk of a significant SVK defensive
effort in Knin did not materialize as the SVK forces withdrew and Knin was
liberated.
SECTION IV: CROATIADID NOT COMMIT GENOCIDE
DURING OPERATION STORM OR THEREAFTER
11.63 Serbia alleges that through Operation Storm and the events that
134
followed, Croatia “succeeded in its criminal plan to destroy Krajina Serbs.”
It alleges that Croatian forces carried out the “plan” through: a campaign of
heavy and indiscriminate shelling and killings that forced Serb civilians to
135
flee ;“systematically”killingeverySerbtheymanagedtofind,burningevery
Serb household, looting Serb property, killing Serb animals and polluting
136
wells in Serb villages ; the repopulation of Serbian homes with Croats, and
the enactment of laws targeting Serbs to prevent their return. 137Variations of
these allegations are repeated throughout the Counter-Claim. The Applicant
has already responded to the unfounded claim that there existed a “plan” to
destroy all Serbs. It remains to address the conduct of Operation Storm.
11.64 The Respondent’s Counter-Claim rests on two principle assertions:
a) heavy and indiscriminate shelling of Serb civilians causing them to flee,
and b) the number of Serbs killed or missing in Storm and thereafter. The
allegations of indiscriminate shelling are based exclusively on the testimonies
138
of Prosecution witnesses from the ongoing trial in Gotovina et al. The
evidentiary weight and value to be attached to evidence and testimony from
ongoing trials is dealt with in Chapters 2 and 12.
11.65 As described below, the evidence shows that there was no
indiscriminate shelling of Serb civilians. This is borne out by initial reports
from the SVK Main Staff. 139Further, the “exodus” of a majority of the Serb
population was pursuant to a decision to evacuate taken by the ‘RSK’s’
“Supreme Defence Council”, and plans for evacuation had been prepared well
132Davor Marijan, “Storm”, Zagreb, August 2010, p. 84.
133Ibid., p. 85.
134
135Counter-Memorial, para. 1356.
Counter-Memorial, paras. 1353-1354.
136Counter-Memorial, para. 1354.
137Counter-Memorial, para. 1355.
138 Counter-Memorial, Chapter XIII, Part 4 (b), paras. 121-1228 contains only 3 other
references: One reference to General Gotovina’s Book, a couple to the report of the Croatian
Helsinki Committee for Human Rights and one to the Brioni Transcript.
139See para. 11.73 infra
Volume 11.indd 418 12/14/2010 2:53:46 PM 419
in advance. 140The Respondent has failed to mention these detailed plans.
11.66 With regards to the allegations about the number of Serbs killed or
missing as a result of Operation Storm, the Respondent has not provided the
Court with any compelling evidence. In this regard, the Respondent relies
almost exclusively on a report of the Croatian Helsinki Committee for Human
Rights (CHC Report). 141 The weaknesses of methodology used by CHC in
collecting information for its Report have been mentioned earlier. 142
11.67 A preliminary analysis of the data in the CHC Report was carried
out by the Croatian Directorate for Detained and Missing Persons. 143An
analysis of the list of “Civilians killed during and after the Military Operation
‘Storm’” (in former UN Sectors South) has broadly identified the following
methodological flaws and mistakes/disparities:
1. Mistakes in characterising members of the SVK and paramilitary
formations as civilians.
2. Mistakes/disparities in the details regarding the circumstances
of deaths. The CHC lists all persons as “killed,” whereas official
records and documentation provide differently. For e.g. a number
of individuals on the List appear to have died from natural causes,
accidents, or were combatants who are missing and so on.
3. The biographical details essential for identification are inaccurate
or incomplete for a [significant/almost half the] number of those
said to be killed. (e.g. wrong name, name of fathers, wrong dates
of birth/death, wrong location). In a number of cases, only the
victims’ name is provided further complicating the process of
comparison with other data, and definite identification.
More specific comments in relation to the CHC Report are set out in the
appropriate sections infra.
11.68 In addition, the Respondent has included at Annex 66 a list of the
SerbswhoallegedlydiedorwentmissingontheterritoryofCroatiafrom1990-
1998, prepared by Veritas. The Respondent does not, however, refer toAnnex
66 at any point in its Counter-Claim. TheApplicant accordingly assumes that
theRespondentdoesnotrelyuponthe VeritasListinsupportoftheallegations
made in the Counter-Claim. The Applicant notes that in any event the Veritas
List contains various discrepancies, mistakes and methodological flaws. By
140Seepara.11.77etseq.SeealsoM.Sekulić,KninjepaouBeogradu[KninFellinBelgrade],
p. 179.
141Counter-Memorial, Annex 61, CHC Report.
142Chapter 2, para. 2.65.
143
Counter-Memorial, Annex 61, CHC Report, Tab 1 (the List) was compared with the
Applicant’s official records and documentation relating to missing persons, exhumed and
identified persons.
Volume 11.indd 419 12/14/2010 2:53:46 PM 420
way of example only, some of the flaws in Veritas list of “Direct Victims”
include:
Veritas lists as dead or missing individuals who are either still alive or
were alive when the list was published. 144
It includes names of individuals whose death was unconnected to the
military operation. For example individuals who died as follows:
- in traffic or other accidents; 145
- of natural causes; 146
- suicides. 147
144
Examples of persons who are either still alive/were alive when the list was published, and
who obtained new documents after Operation Storm include:
1. Dušan Korolija: According to Veritas died on 12 September 1995, but according to
her Death certificate, he died on 12 April 2009, Annex 179.
2. Nikola Kresojević: According to Veritas went missing on 05 August 1995. Find an-
nexed his Application for the Issuance of an Identity Card dated 10 January 2008,
Annex 180.
3. Marijana Poznanović: According to Veritas went missing on 05 August 1995. Find
annexed her Application for the Issuance of an Identity Card dated 30 April 2008,
Annex 181.
145 Examples of persons who died in traffic or other accidents include:
1. Mirko Rajšić, born in 1943, member of TO (territorial defense) Glina, was killed in
a traffic accident: RSK, Military Post 9138, Extraordinary Event, 16 October 1993,
Annex 182.
2. Branko Bajić died in a traffic accident in February 1995: RSK, Police Department,
Letter Confirming the Death of Branko Bajić, 22 February 1995, Annex 183.
3. Željko Bolić, died in a traffic accident in August 1993 (crash of UN and local car):
RSK, Regional Centre Vrginmost, Operational Report, 27 August 1993, Annex
184.
4. Živko Banda died as a result of falling down stairs when drunk, April 1992: RSK,
Command of the 7th Operational Group, Report about Losses, 20 April 1992, An-
nex 185.
5. Dragan Dobrić died in a traffic accident. His bicycle was hit by an UNPROFOR
truck in April 1992: RSK, Command of the 7th Corps., Information for Subordinate
146 Units, 28 April 1993, Annex 186.
Examples of persons who died of natural causes include:
1. Olga Paravinja, wife of Milan, died of natural causes: RSK, Benkovac Municipal
Court, On-Site Investigation Record, 7 July 1993, Annex 187.
2. Dragija Popović died of natural causes: RSK, Commission for the Exchange of
Prisoners, Transfer of Corpses, 13 July 1993, Annex 188.
147 Example of a person who committed suicide: Goran Panić, born on 07.06.1972 in Sisak,
residing in Belgrade, committed suicide. See RSK, Ministry of the Interior, Report on the
Suicide of Goran Panić, 18 July 1995, Annex 189.
Volume 11.indd 420 12/14/2010 2:53:46 PM 421
11.69 Other flaws with regard to the Veritas list are that it contains
incomplete or inaccurate biographical details making identification difficult,
it does not distinguish between soldiers and civilians; it makes no distinction
on the basis of nationality - Croatian Serbs or Serbs and others from outside
Croatia are all listed as victims and it also list people who died/were killed
outside Croatia. The CHC has in fact stated that Veritas has “made the living
148
dead and turned soldiers into civilians.”
11.70 The Counter-Claim refers to other “information offered by the
149
non-governmental organisation Veritas” in its Annex 62. The absence of
neutrality and independence of the Veritas team has been noted in Chapter
150
2. It is noteworthy that the Croatian Helsinki Committee for Human Rights
has “repeatedly and publicly attacked” Veritas calling it “biased.” 151All this
points to only one conclusion: the documentation of and methodology adopted
by Veritas, and relied upon by the Respondent is inaccurate, unreliable, and
biased.
(1) T h e r W A Sn o “D e l i brTe nDiSc r i m iAnTS h e l l ”gDu r i nogp eA Ti o n
S t o r m
11.71 TheRespondentclaimsthat“artilleryfire was of specialimportance”
during Storm and that the artillery Order issued to the Split MD did not
specify the targets of artillery attack. It also claims that certain towns “with
152
no identifiable military targets” were repeatedly shelled. The Respondent
bases its assertions almost exclusively on a) the Prosecutors pre-trial brief; b)
an Expert appointed by the Prosecutor; and c) witnesses from the ongoing trial
of General Gotovina at the ICTY in support of its allegations of “deliberate
153
indiscriminate shelling” by Croatia.
11.72 Relying on the Prosecutors case at the ICTY, the Respondent fails to
have taken the trouble to consider the evidence itself. TheArtillery Order that
put certain towns under artillery fire also directed artillery support to engage
in “artillery shelling to rout, neutralise and destroy the enemy’s combat
disposition at the tactical and operational level … [p]revent the enemy from
bringinginnewforces…[n]eutralizetheartillerypositionsofenemybatteries
and destroy the enemies communications centres and command post.” 154
148 Counter-Memorial, Annex 62, p. 283 at 287. The authors of the Veritas Report state that
there is a “row” between the two organisations over the number of Serb victims. The Croatian
Helsinki Committee for Human Rights has “repeatedly and publicly attacked Veritas calling
149“biased.”
Counter-Memorial, e.g. paras. 1240, 1259.
150Chapter 2, paras. 2.66-2.68.
151Counter-Memorial, Annex 62, p. 283 at 287.
152Counter-Memorial, paras. 1215-1216.
153
154Counter-Memorial, p. 389 et seq.
Order of Attack, Split MD, 2 August 1995, Annex 171. Similarly, the HV Main Staff direc-
Volume 11.indd 421 12/14/2010 2:53:46 PM 422
11.73 Knin was of special importance, but not for the reasons that the
Respondent claims. Knin was the military and political headquarters of the
‘RSK’andthecentreofimportantmilitaryobjectives,logisticsconcentrations,
lines of communication, reserve forces and mobilization points. 155As noted
earlier, it housed the headquarters of the SVK’s General Staff, the Northern
Barracks, the TVIK factory, and the telegraph and post office, all of which
were targeted by the Split MD. Contrary to the Respondent’s assertion of
indiscriminate shelling, a contemporaneous internal SVK intelligence report
from the morning of 4August establishes that the SVK recognizedthat the HV
artillery was directed at military objectives:
“The attack of the CroatianArmy on the RSK started on 4August 1995
at05.00withtheshellingofthetownsofKnin,Drniš,Benkovac,Karin,
Obrovac, Gračac, Korenica, the Udbina airstrip, Vojnić, Vrginmost
and Petrinja. The artillery preparation lasted until 05.30, followed by
engagement of individual weapons of 130, 152 and 152 mm caliber and
multiple rocket launchers. …
Knin was shelled from Livanjsko Polje and from several directions, and
by the time of this report the town has been hit by 200 to 300 projectiles
of different types and calibers. The target of the first strike was the
building of the General Staff of the Serbian Army of Krajina, which
sustained considerable damage and the almost complete loss of the
motor pool. Subsequently the fire was focused on the ‘1300 Corporals’
barracks, the TVIK plant, the railway junction and housing below the
Knin fortress [area of the residence of156e “RSK president” Mile Martić
- author’s note] and other targets.” (Emphasis added)
11.74 Invoking the testimonies of witnesses at the Gotovina et al trial, 157
the Respondent argues that because shells fell in different parts of Knin it may
be inferred that artillery attacks were indiscriminate. This is unpersuasive.
The military objectives in Knin were located in various parts of the city and
artillery was directed at these specific targets. It was not indiscriminate. There
is an abundance of evidence to this effect. International observers began
inspecting Knin by 7 August, and their inspections revealed that artillery
damage was concentrated on military objectives, that the damage to civilian
property was far less than reported, and that the damage was concentrated in
tive issued prior to Operation Storm, directed the Split MD to do the following:
“neutraliz[e] GS VRS/Republika Srpska Army Main Staff/ and the 7th Corps Com-
mand Post in Knin, the brigades’ command posts, concentrations of enemy man-
power, armour, and artillery in the area of Knin and Benkovac, including ammuni-
tion and fuel depots, while supporting the main forces in attack and preventing an
enemy counter-attack from the direction of Knin, Kaštel Žegarski and Benkovac.”
See Republic of Croatia, Ministry of Defence, Directive Op. No. 12-4/95, 26 June 1995, An-
nex 170, p. 6.
155 Ibid.
156 See: SVK, Intelligence Department, Intelligence Report, 4 August 1995, Annex 177.
157 Counter-Memorial, paras. 1218-1223. Also paras. 1225-1228.
Volume 11.indd 422 12/14/2010 2:53:46 PM 423
close proximity to military objectives. 158 Experienced military and political
personnel, among the first to assess the effects of artillery observed the
targeting w159not indiscriminate and had been focused on specific military
purposes. No evidence was found by these observers to support allegations
of an indiscriminate artillery attack. 160Their findings indicate a clear view
within the international community that Operation Storm was executed
in a lawful and militarily legitimate manner, and that it resulted in limited
civilian losses. These damage assessments are consistent with multiple
contemporaneous videos of Knin in the aftermath of its liberation by the
HV. This contemporaneous evidence is definitely preferable to the various
testimonies cited by the Respondent.
11.75 Relying on the Prosecutor’s Pre-trial brief in the Gotovina et al case,
theRespondentalsocontendsthatshellingwasconductedwithmultiplerocket
launchers (MRLBs) and other “indiscriminate artillery weapon designed for
open field battle and inappropriate for use in populated civilian areas.” 161This
allegation is once again refuted by videos of Knin after Operation Storm that
clearlyshowthatthecitywasnotdestroyed.Inanyevent,MBRL’sareweapons
capable of being directed against military objectives. Furthermore, contrary to
158 See the UN Coded Cable from Akashi to the Secretary-General dated 7 August 1995,
Annex 214. It states inter alia that damage to the town’s structure was less than anticipated
and large numbers of homes and buildings remained untouched by the fighting. He also noted
the hospital was large and in generally good condition.
159 In his witness statement at the Gotovina et al trial, Ambassador Galbraith stated as fol-
lows:
43: Although I am also sure that people fled the shelling, as I mentioned in the
Milošević trial, I did not believe that the shelling was indiscriminate. I base this
on reports received from American personnel, both political and military, who saw
Knin within a very short time after Storm began, which indicated that there was
not a great deal of damage to buildings. The shelling did not look that bad and there
did not appear to be that much destruction. It was consistent with what you might
expect and not indiscriminate. The people who went were experienced people and
military attaches. They reported that there was not a lot of damage to Knin and that
there were some legitimate military targets in the city. I have been under shelling
and I was in Petrinja shortly after it fell to the HV and the visible damage from the
shelling was minimal. The troops at the time seemed behaved but I was back again
and not long after the town was trashed.
Witness Statement of Ambassador Peter Galbraith, Gotovina et al Trial, IT-06-90-PT,
16002/2008
Ibid, para 44.
44: I understand that Colonel Leslie of UNCRO has made observations that are
inconsistent with this view but I would express some skepticism about those obser-
vations. I also recall that I tried to warn Colonel Leslie that the operation was about
to start but that my warnings were ignored.
Similarly, in his testimony at the Milošević trial at the ICTY, Ambassador Galbraith stated
(Thursday, 26 June 2003): T 23180:
The shelling was relatively brief [in Knin] because there was effective no resist-
ance. [...]Knin was not destroyed. In fact, it was not all that heavily damaged. I had
embassy officers in there within a few days of the Croatian takeover.
161 Counter-Memorial, para. 1220
Volume 11.indd 423 12/14/2010 2:53:47 PM 424
the Respondent’s claim, the towns of Benkovac, Obrovac and Gračac were
shelled because of the military objectives there located. Maps setting out162e
location and nature of the military targets are annexed to the Reply.
11.76 Finally, claims regarding the indiscriminate and excessive shelling
of Knin and other towns have been denied by General Mrkšić, the commander
of the SVK during Storm. In his testimony, he confirmed that all the locations
that were shelled in Knin during Storm were military targets.
(2) T h eD e pArTu r eo fTh e Se r S W A SplAn n eD b yTh e rSK l eA De rSh i p
11.77 Claiming that the shelling forced the Serb population to flee, 163the
Respondent fails to make any reference to the elaborate evacuation plans
meticulously put in place by the rebel Serb leadership. 164From mid July 1995,
the authorities of the ‘RSK’ issued a series of orders regarding the updating
of plans and preparations for shelter and evacuation of the population; they
required daily reporting on such preparations. 165On 31 July 1995 the RSK
police (“drawing on the experience in Western Slavonia”) issued an order
to prepare for the evacuation of key documents, including birth records: a
166
clear indication that any evacuation would not be temporary. On 1 August
1995, Mrkšić ordered preparations for the relocation of the SVK’s Main Staff,
167
including plans to destroy documents if necessary. As stated earlier, an
order was also issued requiring preparations for the evacuation of archives
and on 2 August, Civil Protection ordered urgent reports by 19.00 hrs on 3
August concerning plans for sheltering and evacuation. 168TV Knin broadcast
162See: Maps of Military Targets in the Vicinity of Benkovac, Gračac and Obrovac, Annex
163.
Counter-Memorial, paras. 1229- 1236.
164See supra n. 11.31. There is extensive evidence that the evacuation of the Serb population
wasplannedlongbeforethelaunchofOperationStorm:SeeinteraliaN.Barić,Srpskapobuna
uHrvatskoj,pp546-554;M.Sekulić,KninjepaouBeogradu[KninFellinBelgrade],NIDDA
Verlang, Bad Vilbel, 2001, pp. 267-268, 179; Radulović, 1996: 101-102. In his Reports, the
UN Secretary General had also noted the evacuation plans of the rebel Serb leadership after
Operation Flash.
165 See inter alia RSK, Civil Defence Headquarters, Order concerning the Implementation
of Evacuation and Relief Plans, 29 July 1995 Annex 191; RSK, Drniš Deptartment Ministry
of Defence, Directorate on Measures for the Preparation of Evacuation, 31 July 1995, Annex
193, RSK, Ministry of Defence, Military and Civil Affairs Sector, Regular Daily Report, 31
July 1995, Annex 159; RSK, Lika Regional Civilian Protection Headquarters, Order of Mirko
Poznanović,30July1995,Annex192;andRSK,MinistryofDefence,OrderoftheRepublican
Civilian Protection Staff, 15 July 1995, Annex 190. and RSK, Civil Defence Headquarters,
Request on the Implementation of Civil Defence Plans, Evacuation and Relief, 2 August 1995,
166ex 197.
RSK, Ministry of the Interior, Order signed by Minister Tošo Paić, 31 July 1995, Annex
194.
167See RSK, Serb Army General Staff, Order on the Relocation of the GŠ SVK, 1 August
1995, Annex 195.
168 See RSK, Civil Defence Headquarters, Order on the Implementation of Preparation for
the Evacuation of Assets, Archives, and Records, 2 August 1995, Annex 196; RSK, Supreme
Volume 11.indd 424 12/14/2010 2:53:47 PM 425
organized simulated evacuations from towns in both former Sectors North and
South to familiarize the population with the evacuation contingency plan in
the event of further HV military success.
11.78 On4August1995theleadershipofthe‘RSK’orderedtheevacuation
of the Serb population towards BH even before the arrival of the HV. The
decision to evacuate was taken at a session of the “RSK Supreme Defence
169
Council” on the evening of 4 August 1995. The session was attended by
Milan Martić, the “President” of the ‘RSK’ and General Mile Mrkšić, the
Commander of the General Staff of the SVK. Evacuation plans provided
for the withdrawal of the population towards Bosnia, for onward movement
towards Serbia. Facing the possibility of encirclement, and without hope of
imminent support from Serbia or the VRS, the Serb leadership signed the
order for the evacuation of the municipalities of Knin, Benkovac, Obrovac,
170
Drniš and Gračac. This makes no mention of the shelling of civilians. It
provides further evidence that the evacuation was not a result of artillery use
by the HV, but rather that it was triggered by the SVK’s inability to repel
the HV offensive. Late on the night of 4 August, the SVK General Staff also
abandoned Knin and moved to the village of Srb. 171
11.79 Documents annexed to this Reply clearly establish that the Serbs left
pursuant to the evacuation orders, with several leaving even before the arrival
172
of the HV. A number of witnesses at the Gotovina et al trial have testified
to this, including General Mrkšić. 173The UN Secretary General informed the
174
Security Council that the departure was “orderly” and co-ordinated and it
was“difficult...todeterminetheextenttowhichthemassexodusoftheKrajina
Serb population was brought about by fear of Croatian forces, as opposed to a
desire not to live under Croatian authority or encouragement by local leaders
Defence Council, Decision on Evacuation, 4 August 1995, Annex 198.
169 See RSK, Supreme Defence Council, Decision on Evacuation, 4 August 1995 Annex
170.
Ibid . In his book Knin je pao u Beogradu [Knin Fell in Belgrade], in a chapter entitled
The Worst Possible Decision – Evacuation Of the Population and Urging the People to Flee,
Milisav Sekulić, head of the Operations and Training Section of the General Staff of the SVK
describes the planned evacuation of the Serb population.
171 Davor Marijan, Storm, Zagreb, August 2010, p. 84.
172 See for e.g. the Testimony of Ambassador Galbraith, Milošević Trial, Thursday, 26 June
2003, p. 23181
“the population had -- almost all of it had already left before the Croatian military
entered the towns”
In response to a question about whether he was aware of Serbs leaving ahead of Operation
Storm. He stated:
“I am aware of that, and it is clear that at least some part of the Serbian population
left on the orders of the leaders and not in response to the military action. It also, of
course, suggests an awareness of the imminence of military action.” (Thursday, 26
June 2003: Galbraith, 23205)
173 Gotovina et al Trial, 19 June 2009, Mrkšić Testimony: 18935:7-14. Mrkšić testified to the
fact that civilians followed the evacuation order not because of the shelling, but because of the
fear that Croatia would successfully reclaim its territory.
174 Gotovina et al Trial, 11 April 2008, Flynn Testimony: 1308:15-18.
Volume 11.indd 425 12/14/2010 2:53:47 PM 426
to depart.”175This evidence demonstrates the falsity of the Respondent’s claim
that “indiscriminate shelling” was responsible for the Serb civili▯ans leaving.
11.80 The Evacuation was also a logical consequence of the persistently
advanced thesis of the Serb leadership that any co-existence between the
Serbs and Croats was impossible. There are numerous statements by the Serb
leadership to this effect. For example, in early January 1995, the Command
th
of the SVK’s 26 Infantry Brigade listed numerous problems/weaknesses
suffered by the Serb people, but still concluded:
“Despite the above problems we estimate that the vast majority of
members of the [SVK] and the citizens of Banija are very much
opposed to the possibility of the so-called reintegration of the
Krajina into Croatia. Were anyone to place their bets on this, they
would definitely be counting on a civil war among the Serbs. Some
fighters in the units consider life together with Croats possible and
that those who recognize the RSK and accept it as a sovereign state
and their homeland may return. Any other possibility is thought of
as: the continuation of the genocidal policy that has been perpetuated
against the Serbs in this area for more than 200 years; leading to the
exodus of Serbs from the land inhabited by us for centuries and to
the extinguishment of Serbhood in general […] What is reassuring
is the spirit of our fighters and citizens as well as their decision to
persevere in the fight for freedom and independence of the RSK, i.e.
the Krajina’s integration into the corpus of Serbhood in the Balkans,
although a certain number of waverers and defeatists express doubt in
the [SVK] and everyone and recognize overall treason of Serbs and
Serb interests.” 176
11.81 Savo Štrbac, the President of Veritas the “independent NGO” whose
Reports the Respondent relies upon, explained the decision to evacuate as
follows:
“All of us who were in a position to speak to international officials
constantly kept warning them of this fact and spoke of it, that the
Croats didn’t want to live with us and that we cannot allow ourselves
to live with them so that the genocide committed against us in the past
would not be repeated,and I use thetermwe “cannotallow ourselves”
because it has a stronger meaning than “we do not wish to live with
them,” we do not and cannot of course live with them and because of
this it was necessary first and foremost that we preserve our biological
potential, our people. We could have died off. The civilian population
could have been killed. Our civilians and women could have been
175
176Report of the UN Secretary General, S/1993/730, dated 23 August 1995, para. 10.
Military Post 9139, Kostajnica, No. 1841-2, Information to the units, 8 January 1995,
Annex 199.
Volume 11.indd 426 12/14/2010 2:53:47 PM 427
killed.Weneedourbiologicalpotentialforsomethingthatishopefully
yet to come.” 177
11.82 In addition, the manner in which the ‘RSK’ was created and
administered resulted in difficult living conditions, poverty and insecurity
which also undoubtedly resulted in the departures. 178On the eve of Operation
Storm, a Yugoslav Army colonel engaged in the SVK Air Force and Air
Defence stated:
As you travel across the RSK and visit its towns, you can easily note
that nothing has been done in terms of development. The existing
resources are being exploited and the outcome is sought from the
other side. There is no normal objective such as required from every
organised society. All social wealth is stagnating. Popular culture
has taken a wrong turn. All sense of reality in terms of time and
space has been lost ….The people of the RSK are exhausted by the
condition which stifles every initiative. Fear from the Ustasha killers
has gradually and systematically prevailed Because of “destroy
everything Croatian” people live in fear of the Ustasha doctrine
“destroy everything Serbian.”And when the self-preservation instinct
179
is not channelled, it is clear what manifestations are possible.
11.83 Moreover there is evidence that the leadership of the ‘RSK’
compelled the Serb population to leave. Reports of Serb refugees also mention
their suffering at the hands of the Serb army. Even the CHC Report that the
Respondent relies on refers to the killings of Serbs who did not want to leave
in the columns, at the hands of the Serb army. See as an example the statement
of N. Drače who stated:
“Our leaders frightened the whole population regarding the Croatian
army. We had to run away. We, who did not run, hid and did not reveal
that we were staying in the region, otherwise we had to run or Serbs
would have tried to kill us. They were checking the houses in order to
see whether the people were leaving or not.” 180
11.84 In spite of the Respondent’s expansive claims that the region
was completely emptied of Serbs, it admits that the precise number is
“undetermined.” 181 Relying on the CHC Report and Veritas, it estimates that
177 Transcript of Video Clip of Savo Šrbac Speaking from a TV Studio in Banja Luka, 7
178ust 1995, Annex 200.
N. Barić, Srpska pobuna u Hrvalskoj 1990-1995 [Serb Rebellion in Croatia 1990-1995],
pp. 535-546; M. Sekulić, Knin je pao u Beogradu [Knin Fell in Belgrade], 2001, pp. 145-146.
179 See also M. Sekulić, Knin je pao u Beogradu [Knin Fell in Belgrade], 2001, p. 232.
180 Statement by N. Drače, 23. July 1998, CHC Report, “Military Operation Storm and its
Aftermath”, p. 14.
181 Counter-Memorial, para. 1234.
Volume 11.indd 427 12/14/2010 2:53:47 PM 428
between 180,000 and 220,000 people were forced to leave. 182 It is submitted
that these are only estimates, as it has been impossible to establish with any
certainty the numbers of Serbs that lived in the ‘RSK’, the number who left
during Operation Storm or earlier, or the number who were ordered to leave
by the Serb leadership or left on their own account. In any event all estimates
vary greatly. 183
(3) r eSponSe To Th e reSp o nDe nT’Sc lAi mS Ab o T Th e vicTimS o f STo r m
11.85 Aswithanymilitaryconflict,itcannotbedeniedthattherewereSerb
victims during Operation Storm. But there was no policy to expel Serbs from
the occupied territories or to commit genocide or any other internationally
wrongful acts. Several efforts were made to minimize loss of life and
suffering. Despite this, the Respondent alleges that the “crimes …against the
Serbs were of such a nature and of such proportions that Tuđman’s order that
‘Krajina Serbs should disappear’was successfully accomplished,” 184and that
Croatian organs subsequently “restricted movement in the area … in an effort
to conceal the crimes” and ensure that the exact number of victims was not
established. 185This is wrong. First, no order to commit crimes was executed,
since no such order existed.As stated above, the Respondent mischaracterises
a statement made by President Tuđman who was referring to Serb soldiers
186
and not Serb civilians. All efforts were made to encourage the Serbs to stay.
On 4August, President Tuđman appealed to the Serbs to remain “at home.” 187
Further, Croatia had in place legal protections for minority groups, both in the
Constitution and in other legal provisions. Second, movement restrictions are
standard military procedure in connection with the inter alia an obligation to
clear the terrain (this was also necessary given that Storm was conducted in
the middle of summer) 188as well as to secure the safety of military personnel
and civilians. Third, no precise data on the number of Serbs killed or missing
during Storm has been established. To establish the figures, the Respondent
182
Counter-Memorial, paras. 1234-1235.
183 The CHC Report sets out the figure between 180,000-200,000. Veritas put the number at
220,000.; M. Pupovac, Raspad Jugoslavije i Srbi u Hrvatskoj [Breakdown of Yugoslavia and
Serbs in Croatia], Ljetopis Srpskog kulturnog društva “Prosvjeta“ [Yearbook of the Serbian
CulturalSociety“Prosvjeta”],No.2,pp.256-264inrelationtobothoperationsFlashandStorm
talks of the “exodus” of 150,000 and 200,000 Krajina Serbs. At his trial Slobodan Milošević
referred to 250,000 fleeing as a result of Storm and Flash: See ICTY, Friday, 6 December
2002, p. 14022. Others estimate number somewhere between 110,000 and 121,000 (Žunec,
Goli život: socijetalne dimenzije pobune Srba u Hrvatskoj [Naked life: social dimensions
of the Serb rebellion in Croatia], 2007, p. 726) and between 100,000 and 150,000. (N. Barić,
184ska pobuna u Hrvatskoj [Serb Rebellion in Croatia 1990-1995], Zagreb, p. 522.)
Counter-Memorial, para 1237.
185 Counter-Memorial, paras 1237-1238.
186 See para. 11.43 supra.
187 See Appeal to Croatian Citizens of Serb Nationality from President Franjo Tuđman, Za-
greb, 4 August 1995, Annex 201.
188
See Chapter 10, para. 10.104.
Volume 11.indd 428 12/14/2010 2:53:47 PM 429
relies on the CHC Report and Veritas, which set forth widely differing
189
figures, and as stated above, there are flaws and discrepancies in both those
lists.190Yet again, the Respondent’s assertions are not supported by evidence
before the Court.
11.86 Finally, the Respondent makes several unsubstantiated allegations
regarding the numbers killed or missing. For example, it alleges that “the
killing of Serbs was mainly carried out while Serbs were fleeing the area in
columns, or while they were in their houses, for those Serbs who did not or
could not escape fast enough.” 191Similarly, the Respondent alleges that there
weremorekillingsinSectorNorth“probablyduetothefactthattheevacuation
started earlier, which gave the HV time to organise and direct the shelling of
192
columns.” There is no evidence offered in support of these statements.
(a) Croatia Did Not Target Fleeing Serb Civilians
11.87 The Respondent alleges that escaping “Serbs” were victims to
Croatian military and civilian attacks. 193A number of general remarks need
to be made. First, the Respondent does not claim that all the “Serbs” in
escaping columns were civilians; they also comprised armed members of the
SVK (both in uniform and without). This is admitted by the Respondent, that
refers to artillery fire against an “SVK column.” 194Second, the Croatian forces
did not target civilians. Third, the columns passed through areas of ongoing
fighting and were on occasion caught in the crossfire. This is also admitted. 195
Fourth, the ‘ABiH’ (5 Corps) was also involved in the fighting. This too is
196
admitted, and it follows that the Applicant cannot be held responsible for
189 Counter-Memorial, paras.1239-1240. The CHC Report states that 667 civilians Serbs were
killed/missing during Storm (410 victims from Sector South and 267 from Sector North),
whereas Veritas claims that 1922 Serbs were killed. (Counter-Memorial, Annex 62). In
2005, an association of exiled Serbs announced that 1,792 persons died, out of which 996
were civilians. See D. Perić, Marginalije o izbjeglištvu krajiških Srba deset godina kasnije
[Marginalia On the Exile of Krajina Serbs Ten Years On], 2005 in V. Ćurić Mišina (ed.)
Republika Srpska Krajina: deset godina poslije [Republika Srpska Krajina: Ten Years On],
190grad, 2005, p. 221.
See paras 11.66 - 11.70.
191 Counter-Memorial, para. 1241.
192 Counter-Memorial , para.1243 .
193
194 Counter-Memorial , para.1242 et seq.
Counter-Memorial, para. 1257. Numerous statements by refugees from these columns
contain admissions that armed members of the SVK were also travelling in the column and
that the column had been cut off and stopped several times by Serb tanks and artillery that
were carrying out combat activities against the positions of the HV and the Army of BiH, See
195 Report, “Military Operation Storm and it’s Aftermath”, pp. 218 and 221.
See Counter-Memorial, para. 1244 which states that a column was caught in a crossfire.
This is also described in M. Sekulić, Knin je pao u Beogradu [Knin Fell in Belgrade], pp
226-227.
196 Counter-Memorial,paras.1243(mentionsthepresenceofthe“5 CorpsoftheBiHArmy”)
and 1248 (states ‘This was a Muslim area and they were firing at us.’)
Volume 11.indd 429 12/14/2010 2:53:47 PM 430
their acts. Fifth, the Serbs themselves caused casualties. Sixth, the Applicant
cannotbeheldresponsibleforactsthatwerecommittedinBosnia,byunknown
persons. 197 Furthermore, deplorable though it was, harassment by Croatian
civilians cannot amount to a genocidal act. In any event, the HV did what was
possible in the circumstances to minimise civilian casualties.
11.88 The Respondent fails to mention that some refugee columns were
going through areas of ongoing action, in Banovina and Kordun. 198 The
fighting was concluded on 8August 1995 with the surrender of the SVK’s 21 st
Kordun Corps. 199Pursuant to an Agreement of Surrender, rebel Serb soldiers
were to surrender their arms and equipment. They were permitted to keep
some small weapons after which the Croatian forces were to ensure a safe
passage to Serb civilians and soldiers towards Bosnia (Republika Srpska) and
FRY/Serbia. 200As a result, in spite of some incidentswith Croat civilians,Serb
civilians and soldiers left Croatia safely. This also confirms that the columns
were comprised of both civilians and members of the SVK. Even Serb sources
st
admit the HV’s professional conduct towards the SVK’s 21 Kordun Corps
and the civilians who on 7 August 1995 found themselves in the midst of
201
fighting in the area of Topusko.
11.89 As noted above, fighting was also ongoing on the border of Croatia
th
and Bosnia during Operation Storm, in which the Bosnian Army’s 5 Corps
was involved. 202 The CHC Report relied upon by the Respondent confirms
203
this. TheforcesoftheSVKwerealsoactiveinvariousareas,andresearchers
and NGO’s have confirmed that the losses to the Serb side cannot be solely
204
attributed to actions of the Croatian forces.
197TheCounter-Memorial,atpara.1253statesthat:“Unfortunately,theSerbswerenotspared
even when they managed to cross the border and enter into the Republic of Srpska.” Relying
on a Human Rights Watch Report, Serbia states that that the Croatian Airforce bombed Serb
columns in the RS.
198M. Sekulić, Knin je pao u Beogradu [Knin Fell in Belgrade], 2001, pp. 216, 223.
199 See the Agreement on the Surrender of the 21st Corps., Glina, 8 August 1995, Annex
202.
200In his memoirs, Drago Kovačević, the Serb mayor of Knin and a “minister” in the govern-
ment of the ‘RSK’, wrote:
“As many as 15,000 people remained under blockade in Kordun and were concen-
trated in Topusko where a UNPROFOR camp was located. The Belgrade television
reported on them some contradictory things. There were even reports about some
10,000 of them being murdered in the woods of Spačva. Luckily, they appeared at
the crossing in Batrovci on 12 August …”
Drago Kovačević, Kavez, Krajina u dogovorenom ratu, [Cage, Krajina in an Arranged War],
Belgrade, 2003, p 98.
201M. Sekulić, Knin je pao u Beogradu [Knin Fell in Belgrade], pp. 217-221.
202
This was confirmed by the letter from Colonel Pettis to Brigadier Pleština, 8 August 1995,
Annex 203.
203CHC Report (2000): Military Operation Storm and it’s Aftermath, pp. 217 and 222.
204 For e.g. Žunec, Goli život: socijetalne dimenzije pobune Srba u Hrvatskoj [Naked life:
social dimensions of the Serb rebellion in Croatia], 2007, p. 842. Veritasalso admits this in
Annex 62, p. 288 where it states that the ‘ABiH’ was active in the border belts.
Volume 11.indd 430 12/14/2010 2:53:47 PM 431
11.90 A regrettable attack by Croatian civilians on a Serb column in
Sisak 205is relied upon to create an impression that Croatian civilians attacked
Serb civilians on a massive scale. That is not the case. Moreover, after this
incident the Ministry of Interior of Croatia took steps to prevent a repeat of
such incidents. On the Kutina-Županja stretch the HVand the local population
helped and cared for the exhausted people in the column. 206
11.91 Finally, while challenging the credibility and weight attached to
witness statements submitted by the Applicant, the Respondent proceeds to
rely on statements given to an NGO! Almost all the allegations with regard
to the “killing of Serbs while they were escaping in columns” is based on
statementsfromtheCHCReport,whicharenotannexed. 207Itisnotclearwhen
these statements were made, who made them, to whom were they made and
so on. In light of the Respondent’s submission in relation to the Applicant’s
evidence, it is curious that it would now rely on evidence that was not taken
by ‘an authorized domestic organ’ or by a procedure that would guarantee
‘minimum procedural safeguards.’ 208
11.92 As stated above, an analysis of the CHC Report indicates many
discrepancies and inconsistencies. The CHC’s List of 76 individuals killed
or missing (in relation to the columns) has been compared with the official
records and documentationof the Ministry of Family, Croatian HomelandWar
Veterans and Intergeneration Solidarity. This establishes inter alia that of the
76 persons listed only 44 persons are registered with Croatia’s Directorate
for Imprisoned and Missing Persons (‘Directorate’). No request for search
has ever been filed with respect to the remaining 32 with either the ICRC or
the Directorate, or have their remains been identified after exhumation. Of
the 44 persons identified the following mistakes and disparities have been
identified.
1. Anumber of Serbs listed as killed or missing in refugee columns
were members of the army of the ‘RSK’ and paramilitary
formations. As per official records 12 of the 44 persons were
members of the SVK. 209
2. There are also mistakes in the description of the circumstances of
the deaths of 2 individuals based on a comparison of the List with
the official records and documentation of the Directorate. 210
3. There are either mistakes or insufficient biographical data for an
205
206 Counter-Memorial, paras. 1242, 1245.
207 CHC Report (2000): Military Operation Storm and it’s Aftermath, p. 215.
See Counter-Memorial, Chapter XIII, (5)(A), pp. 398-404.
208 Counter-Memorial, para. 153.
209 See Tables: Errors in Status of Persons in the CHC Report (Operation Storm) Attache-
ments 2A and 2B, Annexes 204 and 205.
210 See Annex 206, (Discrepancy Regarding Circumstances of Suffering, Attachment 3)
Volume 11.indd 431 12/14/2010 2:53:47 PM 432
accurate comparison and definite identification of individuals.
Of the 44 persons who are registered there were mistakes with
respect to biographical data (mistake in surname, personal name,
father’s name and year of birth) with regard to 22 persons.
Further, biographical data is incomplete (father’s name or the
211
year of birth are missing) with respect to 8 others.
11.93 The preceding paragraphs apply equally with regard to the columns
through Sector South, though the Respondent admits there were fewer attacks
in Sector South. 212In any event, the Respondent has failed to provide any
evidence of a Croatian plan to target civilians and no credible evidence of any
artillery attacks that targetted civilians.
(b) Croatia Did Not “Systematically” Kill the Serbs that Stayed Behind
11.94 Croatia denies that its forces did in any way “systematically target”
the Serbs who stayed in the UNPA’s during and after Storm. 213No evidence is
tendered in support of this assertion. Recognising that it has no independent
evidence in support of this allegation, the Respondent seeks to provide “short
overview of the killings committed in Sectors North and South … [using]
informationandfactsfromofficialinternationalbodiesandsourcesoriginating
fromCroatianorganisations.” 214QuotingVeritas,theRespondentstatesthatthe
majority of killings were committed inAugust 1995 but continued throughout
215
1995. Nofurtherparticularsareprovided.Onceagainitreliespredominantly
on the CHC Report which is referred to as “sources originating from Croatian
216
organisations.” It is noteworthy that once again it offers no evidence at all
that the killings were systematic or targeted. The Brioni transcript provides
nothing in support of the contention regarding the targeting of civilians.
Sector South
11.95 Claiming that civilians in Knin were shot by Croatian forces upon
entering the city, the Respondent cites witness statements from the Gotovina
217
et al trial to demonstrate the “magnitude of killings.” Once again, the CHC
Report is extensively quoted regarding several alleged killings. However, the
211 See Annex 207 (List of Persons with Incorrect Personal Data) and Annex 208 (List of
Persons with Incomplete Personal Data).
212
213 Counter-Memorial, para. 1254.
Counter-Memorial, para. 1258.
214 Counter-Memorial, para. 1260.
215 Counter-Memorial, para. 1260.
216 Ibid.
217 Counter-Memorial, para. 1262 refers to several testimonies of Prosecution witnesses at
the Gotovina et al Trial. One witness mentions seeing “10-20 dead people”; another claims to
have observed “tens of dead civilians”; another mentions “several bodies of victims”; and still
another states that “everywhere he looked, [he saw] numerous dead civilians.”
Volume 11.indd 432 12/14/2010 2:53:47 PM 433
Respondent provides no evidence that this was a “systematic” or “targeted”
activity.ItisnoteworthythattheRespondentaddsimportantcaveatsadmitting
that it is difficult to establish the real numbers, and that there is no precise
218
information about particular events.
11.96 The Respondent’s “short overview of killings” is in fact an erroneous
reproduction of a CHC list that is annexed to the Counter-Memorial but is not
referred to. 219For example in a number of instances, the Respondent states
that more civilians were killed in particular locations than the Report it relies
upon actually states. 220The Respondent also makes mistakes with respect to
the names of victims and villages were the alleged killings are said to have
occurred. 221 It refers to the alleged killings of unnamed persons. No dates
of killings are provided. Some allegations fail to specify a name, date and
or location. 222 With respect to some allegations, the Respondent fails to cite
any source at all – it merely makes blanket assertions like “Killings were
committed in all other places where Serbs stayed behind.” 223Even in the few
instances that the Counter-Memorial differentiates betweens soldiers and
civilians, it alleges that killings occurred but does not set out how the soldiers
224
died. There are also other descrepencies in the list. This is particularly the
case for the list of civilians said to have been killed during and after Operation
Storm in former Sector South. 225All these issues impact on the reliability and
218 For e.g. Counter-Memorial, paras. 1261 (where it is admitted that real numbers are difficult
to establish) and 1289 which states:
In the village of Srb, seven Serbs were killed. There is however no precise informa-
tion about the circumstances of the events. The killing of Serbs also occurred in
other villages in the Donji Lapac municipality, specifically in the villages of Beglu-
ci, Birovaca, Brezovac Dobroselski, Brotinja, Dobašnica, Dobroselo, Doljani, Donji
Lapac, Gornji Lapac, Kunovac, Kupirovo, Lapačka Korita, Obljaj, Opačića Dolina,
Misljenovac and Tiškovac Lički. [Emphasis added]
The Counter-Memorial refers to the CHC Report but fails to provide any details.
219 Counter-Memorial, Annex 61, Tab 1.
220
For eg Counter Memorial, para. 1304 relying on the CHC Report states that there were
10 Serbs killed in Slunj whereas the CHC Report, p. 240 states 6; Counter Memorial, para.
1304 states 14 killed in Vojnić while the CHC Report, p 241 states 8; Counter Memorial,
para. 1307 states 35 killed in Glina while the CHC Report, pp. 247- 248 states 18; Counter
Memorial, para. 1311 states at least 45 Serbs killed in Dvor while the CHC Report, pp. p 242-
254 states 38; Counter Memorial, para. 1307 states 20 Serbs killed in Gvozd while the CHC
Report, pp 242-254 states about 15 Serbs.
221 For e.g. there are no villages called Kestenjak, Jagodnja Gornja, Brotinja, Lapačka Korita,
Opačića Dolina and Tiškovac Lički in the Republic of Croatia
222 For eg, Counter-Memorial, paras. 1267, 1269- 1271, 1274, 1282, 1283, 1286 (no names);
1280 (no dates); 1271- 1273, 1276, 1278-1279, 1289- 1294, 1297 (no name or date); 1289, 1296,
1298-1299 (no names, no dates and no numbers are specified).
223 For eg, Counter-Memorial, para. 1279.
224 For eg, Counter-Memorial, para. 1298.
225 A variety of examples are offered to demonstrate this: First, while the CHC Report, (An-
Volume 11.indd 433 12/14/2010 2:53:48 PM 434
accuracy of the CHC Report.
11.97 The Respondent alleges that the so-called “systematic killing” of
Serbs continued in former Sector South after Operation Storm and refers
inter alia to alleged killings that occurred between November 1995 andApril
1996 and even between 1996 and 1999. 226Again, in some cases no details
are provided - no names, no dates, no locations. It is also unclear how these
later “killings” are related to the Respondent’s claims that are restricted to the
events ofAugust 1995 and subsequent months.
Sector North
11.98 With respect to Sector North, the Counter-Memorial is even leaner
on evidence. Once again the Respondent relies on the CHC Report and makes
numerous unsubstantiated allegations. The allegations are vague with respect
totheactscommittedandtheperpetratorsoftheacts.Thefollowingparagraph
from the Counter-Memorial is symptomatic of the manifest inadequacies of
the Respondent’s claim:
“As reported on 7 August 1995, in Dvor na Uni nine physically
disabledcivilianswerekilledbyarmeduniformedmen.On13August,
at the checkpoint controlled by the Ukraine unit, a RSK soldier was
shot, doused with gasoline and burned; on 29 August in Radašnica,
nex 61, Tab 1) lists 410 ordinal numbers, ordinal numbers 119 and 120 are repeated. That
means that the list contains 412 persons. However, of those 412 persons, it appears that 7
persons are listed twice. As a result there are 405 individuals on that list. Persons that appear
twice in the CHC’s report:
1. Ordinals Nos 30 and 44: Mićo Perić
2. Ordinal Nos 322 and 323: Đuro Rasula
3. Ordinal Nos 187 and 189: Mirko Štrbac
4. Ordinal Nos 324 and 326: Mićo Rasula
5. Ordinal Nos 219 and 410: Dmitar Vujnović
6. Ordinal Nos 239 and 240: Marta Vujnović
7. Ordinal Nos 62 and 218: Draginja Vukša
Second, a comparison of the CHC’s List of individuals allegedly killed with the records and
documentation of the Croatian Directorate for Imprisoned and Missing Persons establishes
that of the 405 persons listed only 207 are registered with the Directorate. No search proceed-
ings have ever been initiated for the rest with either the ICRC or the Directorate, nor have their
remains been identified after exhumations. Off the 207 persons identified several mistakes
and disparities have been identified. Like with other CHC data, a number of Serbs Civilians
listed as killed were in fact members of army of the ‘RSK’ and paramilitary formations.
There are also mistakes in the description of the circumstances of death: There are examples
of persons who died before Operation Storm, that died from natural causes and so on. Once
again there are deficiencies with regard to biographical data rendering positive identification
impossible.
226 Counter-Memorial, para. 1300 citing the CHC Report, Annex 61, Tab 1 that lists 24
civilians killed in sector south in the period from 1996 to 1999.
Volume 11.indd 434 12/14/2010 2:53:48 PM 435
two bodies, of which one was decapitated was found; on 4 September
in Plaški, two bodies were found in a freezer, one in uniform, one in
civilian clothes. On 10 September in Svinjice the body of a Serb male,
227
with bullet wounds to the head and in the back, was found.”
This paragraph fails to specify both who committed the alleged acts as well as
the identity of the victims. It is clearly impossible to defend a case when even
the basic details of the crime alleged remain unspecified.
11.99 Once again, like with regard to Sector South, the Respondent makes
expansiveunsubstantiatedallegationsof“systematickillings”withoutoffering
evidence in support. It states inter alia that “Serbs from Sector North also left
theirhomesfleeingfromCroatianforces.AsmallnumberofelderlySerbswho
stayed behind were systematically killed.” 228Citing again the CHC Report, it
alleges killings in Karlovac, Plaški, Slunj, the municipality of Vojnić. 229The
Respondent provides no specifics regarding the individuals allegedly killed or
the dates when the killings are said to have taken place. It only refers to the
CHC Report without any other evidence. 230
11.100 An analysis of the CHC Report indicates that a number of civilians
alleged to have been killed/missing as a result of Operation Storm, in the
former Sector North, died before Operation Storm; died from natural causes;
committedsuicide;orwerekilledbyaccident;orweremembersoftheSVK; 231
or died much later. With respect to others listed as “murdered or missing”,
the CHC also lists persons killed by the ‘ABiH’and Serb paramilitaries, or in
certain cases does not state who the perpetrators were.
11.101 Once again it is reiterated that the incomplete and inaccurate details
provided by Serbia are insufficient to make out a case of genocide. The
crimes alleged to have been committed are not sufficiently supported by the
evidence. In any event, Serbia has not shown that any crime was committed
with a genocidal intent or that the crimes or the alleged genocidal intent can
be attributed to the Applicant. For these reasons, the Applicant submits that
the totality of the Respondent’s allegations relating to the killing of Serbs
that stayed in the liberated areas is unsupported by evidence and should be
dismissed in their entirety.
11.102 Serbia’s reliance on the CHC Report of 2001 does not reveal the
progress made between the parties in terms of identifying the missing and
227Counter-Memorial, para. 1302.
228
229Counter-Memorial, para. 1304.
230Counter-Memorial, paras. 1304 - 1311.
This is in sharp contrast to the way the Applicant has presened its case in the Memorial
and in Chapters 5 and 6 of the Reply which includes the direct testimony of hundreds of
witnesses.
231See Counter-Memorial, Annex 61, Tab 3 (List of Murdered and Missing Civilians in the
area of the former Sector North with descriptions of executions)
Volume 11.indd 435 12/14/2010 2:53:48 PM 436
dead. Serbia fails to mention the ongoing co-operation between Croatia’s
Directorate for Detained and Missing Persons and Serbia’s Commission for
Missing Persons. 232
(4) r eSponSe To S e r b’S A l l eA Ti oS o l o oTi n gAnD D eS Tr u cTi o noSe r b
p r o p ry
11.103 TheRespondentmakesallegationsconcerninglootinganddestruction
233
of property that cannot in any way support a genocide claim. Moreover, the
evidence demonstrates that these acts were not “tolerated” or “planned” by
234
the Croatian government, as alleged. The Applicant does not assert that no
looting or destruction took place; rather it is clear that there is no evidence
to show that the Croatian government planned, ordered, committed, aided or
abetted, in the destruction and looting of Serbian property. The looting was
not systematic, and was not condoned or otherwise supported by the Croatian
government.
11.104 The Respondent does not allege that the destruction of civilian
property was discussed by the participants at the Brioni meeting. There is
no evidence of a plan for the destruction of Serb property and nor can a plan
be inferred from the facts set out by the Respondent. Mr. Akashi, amongst
others, indicated that he “did not in any way associate the continued burning
and looting … with the Government.” 235 To the contrary, territory liberated
during Operation Storm was immediately returned to the constitutional order
of Croatia and attempts were made to guarantee law and order, including
personal safety and protection of property. 236Even prior to Operation Storm,
President Tuđman had issued a direct order to Ivan Jarnjak, Croatia’s Minister
of Internal Affairs to ensure that law and order was restored quickly in the
237
liberated areas. This included establishing police stations, courts, and other
essential governmental functions. Although governmental institutions may
not have been fully effective in implementing these plans in the immediate
aftermath of Operation Storm, a post-conflict crime wave does not establish
the existence of a plan for the commission of the crimes alleged.
232 See Cahapter 2, para. 2.54.
233 Counter-Memorial, para. 1312.
234
235 Counter-Memorial, para. 1322.
See: UN, Coded Cable, Meeting with Mr Šarinić, 9 September 1995, Annex 209.
236 See: Republic of Croatia, Ministry of Defence, Order on the Work of the Military Police,
Cooperation Between and Joint Work of the Civilian and Military Police, and Obligations of
the Military Police towards Detained Members of Para-Military and Para-Police Formations,
3 August 1995, Annex 210; See also Government of the Republic of Croatia, Minutes from the
257th Closed Session of the Government of Croatia, 4 August 1995, Annex 211.
237 See Minutes of the Meetings held at the Defence Ministry of the Republic of Croatia, 2
August 1995, Annex 172.
238 This is admitted by Serbia. See Counter-Memorial, para. 1321 which mentions police
administrationintheformerlyoccupiedareasandthefactthattherewasco-operationbetween
the civil and military police in providing security to the liberated areas.
Volume 11.indd 436 12/14/2010 2:53:48 PM 437
11.105 There was no widespread or systematic destruction of “symbols
of presence of the Serbian community”, as alleged by the Respondent or
239
otherwise. There was no systematic destruction or burning of churches,
monasteries and cultural monuments. Both during and after Operation Storm
notasingleOrthodoxChurchwasdestroyedorburntandnotasingleOrthodox
cemetery desecrated by the Croatian government. During the entire period of
the occupation (from 1991 to 1995), of some 30 Orthodox buildings, only
the church of St. Nedjelja in Dabar (Vrlika) was slightly damaged. Orthodox
churchesandchapels,outsidethe‘RSK’eithersufferednodamageorwereonly
negligibly damaged. Immediately after Operation Storm, the Split-Dalmatia
Police Department established police outposts in the liberated territories for
the purpose of protecting persons of Serb nationality and their property. The
police devoted special attention to the protection of sacred buildings of the
Serbian Orthodox Church. 240
11.106 Some further comments are also called for with respect to the
Respondent’s allegations of the destruction and looting of property and the
method it has employed to prove these.
1. The Respondent provides no independent evidence of burning
and looting. The source and support for almost all allegations
are drawn from testimonies at the ongoing Gotovina et al trial. 241
(Testimoniesfromtheongoingtrialarereferredtoandreliedupon
in every paragraph of this section of the Counter-Memorial). In
addition the Respondent also relies on the Prosecutors pre-trial
brief.242
2. Other allegations are advanced on the basis of “independent
243
reports,” e.g. the UNMO report and the CHC Report, the
reliability and accuracy of which have been challenged at the
Gotovina et al trial. Some of the grounds for challenge include
239
Counter-Memorial, para. 1312.
240 See Split – Dalmatia Police Administration, Submission of the Report about the Situation
Regarding the Sacral Facilities of the Serbian Orthodox Church in the Liberated Territory, 22
August 1995, Annex 212; Split – Dalmatia Police Administration, Submission of the Report
on the Establishment of the Vrlika Branch Police Station and Others, 5 August 1995, Annex
213, that refer inter alia to the establishment of police outposts and police activities in the
241ly liberated areas.
By way of example see Counter-Memorial, para. 1313. With regard to Knin, Serbia relies
on two testimonies from the ongoing ICTY Trial.The witness in question did not mention any
looting and burning but that he saw animals had been shot. There is no mention of who shot
them. The footnote refers to “systematic looting” after the HV entered the city. This could sim-
ply be rebutted by another witness who testified that small scale looting was conducted by the
low ranks and never observed to take place in the presence of officers. See Gotovina et al Trial,
25 September 2008, Williams Testimony: 9548:9-16 and Gotovina et al Trial, 18 December
2008, Boucher Testimony:13972:25-13973:3.
242 Counter-Memorial, inter alia paras. 1312, 1317.
243 Counter-Memorial, inter alia paras. 1312, 1317, 1320, 1323, 1325.
Volume 11.indd 437 12/14/2010 2:53:48 PM 438
the fact that these Reports employ unreliable methodology; fail
to distinguish between damage that occurred pre and post Storm;
exaggerate the number of properties said to have been destroyed
(in some villages the number of properties said to have been
destroyed is higher than those that existed in the village, based on
the official 1991 property census); and the scale of crimes is also
exaggerated.
3. The UN reports invoked by the Respondent do not support its
case. 244In one instance the Respondent claims that “it was clear
to the UN that such destruction could not be done without the
existence of a systematic and premeditated plan” but in fact this
statement is supported by a citation of the CHC Report and not by
245
any UN authority.
4. It makes sweeping claims unsupported by evidence. For example,
in paragraph 1322 the Respondent states that the “UN Reports
suspected that the destruction was planned and not just tolerated
bytheCroatiangovernment.”Thereisnocitationinsupport.After
citing the CHC Report, it then concludes that “it is obvious thus
thatthedestructionwasnotonlytoleratedbutactuallyperpetrated
by de jure organs of Croatia”. It is unclear how the Respondent
arrived at this conclusion.
5. The Respondent fails to mention that a number of sources reveal
that houses and buildings in the occupied areas were destroyed
246
by Serbs who were evacuating. Some statements by Serbs who
244 For example in the Counter-Memorial, para. 1312, in order to support of its allegation that
the destruction of Serb property was “systematic” Serbia quotes a UN Report. The Report
in question does not state either that the alleged acts were systematic, nor does it name the
perpetrators of the acts mentioned. The Report also states that it is based on “numerous other
reports.” The Report states:
“Since the beginning of the Croatian offensive, there have been numerous reports
of houses and other property being set on fire and/or looted. Although there were
no sightings of houses actually being set alight, many of the reports indicated that
Croatian troops were in the close vicinity of the burning houses and in many of the
areas in question all the inhabitants had already fled. On 8 August, for instance,
United Nations civilian police reported that houses in Žažvići, Đevrske and Kistan-
je, in Sector South, were on fire. A human rights action team reported on 10 August
that 35 to 40 houses along a 15-kilometre stretch of road south of Knin towards
Drniš were burning; crops had also been set ablaze. Members of a United Nations
battalion reported that on 10 and 11 August houses recently set on fire were ob-
served in nine different villages in Sector South. In addition, they reported evidence
of looting. On 13 August, a United Nations military observer observed a burning
house in Topusko in Sector North; Croatian soldiers were standing by. As late as 15
August 1995, a human rights action team reported houses as having been freshly set
ablaze in Mirčete in Sector South.” (Emphasis added)
245 Counter-Memorial, para. 1320.
246 See as examples the following statements of Serbs who fled Croatia following Operation
Storm.
Volume 11.indd 438 12/14/2010 2:53:48 PM 439
fled Croatia reveal that various buildings or facilities were set on
fire “so that they would not be left to Croats.” 247
6. TheRespondentprovidesnoevidenceoftheplannedorsystematic
nature of the alleged acts and cannot do so, as there is none.
7. Even claims that the alleged acts were “tolerated” or “planned”
248
are based on opinion, not evidence.
8. Finally,theCroatianpoliceandjudiciaryinstitutedseveralhundred
proceedings concerning the destruction of Serb property.
11.107 There was no organized and systematic effort by the Croatian
249
government to target Serbian property. Similarly, the suggestion that the
movement of UNCRO was restricted to prevent it from monitoring the
situation and thereby allowing the Croatian forces time to clean up evidence
is denied. The restriction was entirely justified initially in the context of the
ongoing combat and in order to prevent any UNCRO casualties and later for
mop up operations.As noted above, the Croatian government made a number
ofeffortstostopthepost-conflictcrimethatdidoccur.Assetoutabove,orders
to prevent crime and protect individuals and property were issued by various
civilian and military organs.
11.108 The crimes alleged to have been committed are not supported by
“As Politika reports, one soldier from the Knin valley who, as is also stated in his
leave, was granted leave immediately before the attack to take a bath, is “pack-
ing“ his entire hamlet (40 persons) into a big eighteen-wheeler and taking them to
Belgrade. The only resident who will remain is the driver’s 63-year-old father: the
man is taking a rifle and leaving for the battlefield and he intends to fight until his
strength fails him and later he intends to set fire to his house and only then to flee.”
(Vreme weekly, 14 August 1995, p. 4) (Emphasis added)
“While withdrawing towards Srb and Drvar we passed through desolate villages.
There were no dead or wounded civilians or soldiers, only empty houses and farm
animals. One could occasionally hear explosions in certain facilities that had been
mined by Serbs themselves after their departure so that they would not fall into the
hands of Croats – hospitals, post offices, depots containing weapons that they had
not succeeded in pulling out. A column of refugees was far ahead of us.” (Testimony
of 32-year-old M.Č. from Obrovac, wounded while withdrawing near the village of
Srb and taken to the Military Medical Academy in Belgrade for treatment; docu-
mented in the double issue of the independent political daily Naša Borba 193-194 of
12-13 August, p. 9.) (Emphasis added)
247
For example, before having fled Donji Lapac, Serbs set fire to the Kamensko hotel, the
policestationand“atleast3to4otherfacilities”accordingtotheCHCReportcitedextensively
by Serbia. See CHC Report, “Military Operation Storm and its Aftermath”, Zagreb, 2001, pp.
25 (footnote 23) and 34.
248 For e.g. Counter-Memorial, para. 1322 Serbia states that the “UN Reports suspected
that the destruction was planned and not just tolerated by the Croatian government.” It then
concludes that “it is obvious thus that the destruction was not only tolerated but actually
perpetrated by de jure organs of Croatia”. No support at all is provided for this allegation.
249 Counter-Memorial, paras. 1317, 1321.
Volume 11.indd 439 12/14/2010 2:53:48 PM 440
the evidence. There is no evidence that the alleged burning and looting of
property was planned, was systematic or was condoned by the Croatian
government. In any event, the Respondent has not shown that if the crimes
were committed they were committed with genocidal intent or that the crimes
or the alleged genocidal intent can be attributed to the Applicant. For these
reasons, the Applicant submits that all of the Respondent’s allegations in this
regard should be dismissed in their entirety and no inference that these crimes
were ordered or approved in furtherance of a genocidal plan can be made.▯
(5) cr oA TiA DiD n oTT Ar g T K rA Ji nS e r S AfTe ro p e A Ti o St o r m
11.109 Lastly the Respondent alleges that in an “effort to ensure that Serbs
would disappear from Krajina, the Croatian Government re-populated the
region with Croats” ; ignored UN resolutions that called for the return of
251 252
the Serbs ; took legislative measures that targeted the Serbs ; and used its
criminal justice system in a discriminatory manner. 253All these allegations are
manifestly wrong.
11.110 Serbia further claims that “ethnically motivated killing of Serbs”
continuedtotakeplacelongafterOperationStorm,evenaslateas1999. 254The
Respondent seems to suggest that the death of all persons of Serb ethnicity in
the Republic of Croatia, from the end of Storm onwards was an “ethnically
motivated killing.” This is clearly not the case.
11.111 Once again, with regard to evidence, a number of the Respondent’s
255
allegations are based on inter alia the CHC Report of 2001 , the Prosecutors
pre-trial brief256and testimonies from the Gotovina et al case. 257Respondent
has referred to a number of outdated Reports of various international
organizations and NGOs, 258and this is addressed in Chapter 2. In addition the
Respondent has mischaracterised Croatian Law, and presented an inaccurate
account of the Croatian criminal justice system. There is no criminal impunity
for perpetrators of crimes in Croatia. Finally, in its attempts to show that
Croatia “successfully implemented” its plans to ensure that the “Krajina Serbs
ceased to exist,” 259the Respondent fails to even mention the numbers of Serbs
who have returned to Croatia after the war.
250Counter-Memorial, para.1328.
251Counter-Memorial, para.1329.
252
Counter-Memorial, paras. 1338-1346.
253Counter-Memorial, paras. 1347-1352.
254Counter-Memorial, para.1335.
255See Counter-Memorial, paras. 1328, 1335.
256See Counter-Memorial, paras. 1330, 1334.
257
258See Counter-Memorial, paras. 1331, 1344, 1346.
See for e.g. A Human Rights Watch report of 1996 referred to in Counter-Memorial, paras.
1337, 1351; similarly an Amnesty International report from 2004.
259Counter-Memorial, para. 1327
Volume 11.indd 440 12/14/2010 2:53:48 PM 441
(a) Croatia did not impose unreasonable obstacles to the return of Serb
Civilians
11.112 During the war (1991 – 1996) the Republic of Croatia provided
shelter for over one million people. This included 550,000 internally
displaced persons (IDPs) and 400,000 refugees from the region. The Croatian
Government was in favour of organised return once minimum conditions for
return, including basic infrastructure were ensured. As High Commissioner
for Refugees Sadako Ogata stated in the address delivered in Geneva on 10
October 1995
“the repatriation must take place in an organized, phased manner. If it
is to take place in dignity, attention must be paid to ensuring that for
example, adequate accommodation and basic essential services are
available in the places of return. […]
Returning large numbers of refugees to areas which are not yet ready
to receive them can have very serious consequences not only for the
refugees themselves, but for the stability in the area concerned.”
She envisaged that the repatriation process would broadly take place in three
phases: first, the return of displaced persons from Bosnia and Herzegovina
and Croatia; second, repatriation from the other Republics of the former
Yugoslavia and thirdly a return from countries which had granted temporary
protection or resettlement. This pattern was largely followed in the region,
including in Croatia. However, nothing in the legislative or administrative
framework precluded individuals returning at any time of their choice –
notwithstanding the damage to the infrastructure in war-torn areas – if they so
wished. Individuals were able to return on humanitarian grounds. 260
11.113 The return process in Croatia started as soon as the appropriate
conditions were set. 261Up to the end of 1997, 118,000 IDPs and refugees
had returned to their homes including about 30,000 ethnic Serbs. In order to
speed up the process of return, in 1998 the Croatian Government adopted the
ProgrammeofReturnandCareforDisplacedPersons,RefugeesandResettled
Persons, which included provisions for the accommodation of former holders
of occupancy rights.
11.114 Furthermore, since 1995, there have been a series of bilateral and
international agreements aimed at affecting a two-way return of refugees. Up
to now, 347,807 persons have been repatriated to Croatia, of which 221,097
260 See Letter from Minister Mate Granić to German Foreign Minister Klaus Kinkel, 25
August 1995, Annex 215.
261 It should be borne in mind that some 195,000 housing units were destroyed in Croatia
during the war and some areas were stripped of even basic services.
Volume 11.indd 441 12/14/2010 2:53:48 PM 442
were IDPs and 126,710 were refugees. 262
(b) Croatia’s Legislative Measures did not target Serbs
11.115 The Respondent alleges that the Croatian government re-populated
theregionwith“180,000Croats”initiallyfor10yearsandthenforever. 263The
correct position is that Croatia provided shelter during the war to a significant
number of refugees from Bosnia and Herzegovina, of whom some 120,000
subsequently relocated permanently in Croatia, because they were unable to
return to Bosnia and Herzegovina.
TheRespondent’sargumentthattherewasapermanentconfiscationofproperty
is wrong and misrepresents the facts and Croatian law. This was confirmed by
the European Court of Human Rights in, for example, Radanović v. Croatia,
(Application No. 9056/02, Judgment of 21 December 2006, paragraph 43),
where it was held that the owner was not deprived of the title of the pr▯operty.
11.116 TheRespondentalsoignoresthecircumstancesunderwhichCroatian
authorities were operating in the wake of Operation Storm.The enacting of the
Temporary Takeover of Property Law inAugust 1995 was in pursuance of the
following legitimate aims: a) protecting from deterioration and devastation
the property which had been abandoned by its owners; b) enabling the
persons whose homes had been destroyed in the war to temporarily solve their
housing needs; c) securing the repossession of property of persons who had
left Croatia but were subsequently returning; and d) protecting those refugees
and displaced persons who had been placed in abandoned houses and flats. It
should also be noted that, following the adoption of the 1998 Programme of
Return, in August 1998 the Act on Termination of the Takeover Act entered
into force providing for the possibility for those persons whose property had
been given for accommodation to others during their absence from Croatia to
apply for repossession of their property. This issue is today largely resolved,
with more then 19,264 property units repossessed by the owners and only 16
cases still pending.
11.117 It is important to note that the Republic of Croatia has invested
considerable resources on reconstruction and housing. 264 In addition, the
262 According to the UNHCR office in the Republic of Croatia, regional returns are as fol-
lows:
- 47,158 returns registered by the Knin office
- 5,913 returns registered by the Osijek office
- 48,033 returns registered by the Sisak office
- 8,427 returns registered by the Zagreb office
- and the rest of returns registered by other offices
263
Counter-Memorial, para. 1328. It is entirely unclear how the CHC Report, relied upon by
Serbia, came to state that the area was re-settled by “180,000 Croats.”
264The total war damage in Croatia is estimated to be over $ 37 billion. More than 146,600
damaged and destroyed housing units have been rebuilt. Croatia has financed the direct costs
Volume 11.indd 442 12/14/2010 2:53:48 PM 443
regional and local infrastructure reconstruction programmes, the programme
for economicand socialrecovery (PSGO) and other projects financed with EU
funds, for strengthening and developing less developed areas, are all aimed
towards sustainable return and the integration for returnees. From the outset
of the implementation of the Programme of Return in 1998, the Applicant
established consultative mechanisms with various international partners
(OSCE, UNHCR, CoE and later the European Commission) and adopted
and implemented legislative, administrative and other measures, which have
provided the conditions for the sustainable return of all refugees and I▯DPs.
11.118 In October 2004 a public awareness campaign by the Government
of Croatia and the OSCE began aimed at encouraging return to the Republic
of Croatia. The campaign was widely broadcast in the region under the title
Croatia is Home to All its Citizens. In June 2008 the Croatian Government
adoptedanActionPlanfortheAcceleratedImplementationoftheHousingCare
Programmeforformertenancyrightholders,providingaclearimplementation
time-line. The Action Plan aims to resolve 4,900 housing care cases and has
so far resulted in fully meeting its targets for 2007 and 2008. In June 2010,
the Government adopted a Revised Action Plan, under which a total of 1,265
families will be provided with housing care by the end of 2010, while a further
805 families are to be provided with housing care in 2011.The beneficiaries of
housing care are now able to purchase allocated flats, outside areas of special
state concern, on favourable terms.
11.119 In addition to measures facilitating return to Croatia, Croatia is
actively involved in a regional process for the comprehensive resolution
of refugee issues, based on an agreement that refugees should freely chose
between return and local integration (as introduced by Sarajevo Declaration
of 2005). In this respect, the Presidents of Croatia and Serbia have also
confirmed in November 2010 a political agreement providing the framework
for solution of outstanding refugee issues, based on the real needs still existing
on the ground. An international donor conference is planned for mid 2011 in
order to support the final resolution of this issue in the region.
11.120 These programmes and developments demonstrate that Croatia
did not enact executive and legislative measures “intended to prevent any
possibility that Krajina Serbs would reclaim their property.”265On the contrary,
it has provided a comprehensive framework facilitating return. The number
of Serb returnees is a testament to this. Despite the fact that some of these
programmes have been underway for over a decade, and the Respondent is
well aware of them, it has failed to mention them.
11.121 The Respondent also alleges that Croatia adopted amendments to
of reconstruction, involving in some cases the reconstruction of entire cities. €5.3 billion has
been invested to date, only 5% of which was provided by international sources.
265Counter-Memorial , para.1346.
Volume 11.indd 443 12/14/2010 2:53:48 PM 444
the electoral Act whereby the number of Croatian Serb representatives in
Parliament was reduced to three from twelve. 266 First, the amendments were
adopted as a provisional solution pending the new census. Second, it is this
very Act that bears witness to the fact that there was never any plan to make
the Serbs disappear. During the entire time that the ‘RSK’ existed, the Serbs
were entitled to 12 representatives in Parliament. It is clear from this fact
alone that Croatia wished to integrate the Serbs from the “Krajina” into its
polity. However, the Serb leadership in Knin rejected any such proposals,
considering any form of integration unacceptable.
(c) There is no Criminal Impunity for Perpetrators of Crimes
11.122 The Respondent alleges that under pressure from the international
community, in September 1996, Croatia adopted anAmnesty Law which was
to be applied to rebel Serbs, but in practice it did not bring good results. 267
First, this law was one amongst many enacted to enable the reaching of a
political solution to the Serb rebellion in Croatia. In fact Croatia had adopted
an Amnesty Law in 1992 for those who took part in the armed rebellion.
This law was extended in May 1995 to include Serb soldiers who were taken
prisoner during Flash. 268
11.123 The Respondent also fails to mention that the 1996 Law was adopted
to facilitate the peaceful integration of the Croatian Danube region. Following
the military operations of 1995, only parts of Eastern Croatia remained under
Serb control. The peaceful integration of these areas into Croatian jurisdiction
was made possible by an agreement between Zagreb and local Serbs, the UN
and Belgrade. This peaceful re-integration was successfully completed in
1998. 269
11.124 TheApplicant has responded to the Respondent’s general allegations
regarding Croatia’s criminaljustice system in Chapter 2, see in particularpara.
2.69.
266Counter-Memorial , para.1345.
267Counter-Memorial , para.1352.
268 N. Barić, Srpska pobuna u Hrvalskoj 1990-1995 [Serb Rebellion in Croatia 1990-1995],
pp 165-166.
269 The integration was successfully implemented. On the success of the new UN peace-
keeping mission during which peaceful integration of the Croatian Danube region was carried
out from 1996 to 1998 see David Streling JONES (Captain), “UNTAES: A Success Story in
theFormerYugoslavia”,MilitaryIntelligenceProfessionalBulletin,UnitedStatesofAmerica,
Department of the Army, 1998 January-March, http://www.fas.org/irp/agency/army/tradoc/
usaic/mipb/1998-1/JONESfnl.htm visited on 15 January 2010.
Volume 11.indd 444 12/14/2010 2:53:49 PM 445
CONCLUSIONS
11.125 As set out above, the primary purpose of Operation Storm was to
establish the territorial integrity of Croatia, although the Operation also had a
humanitarian component (i.e., to prevent a “repeat-Srebrenica” in Bihać).
11.126 The Croatian Government had no plan to destroy the Krajina Serbs
by conducting Operation Storm. Contrary to the Respondent’s claim no such
plan was drawn up at the Brioni meeting.There was no indiscriminate shelling
of Serb civilians by the Croatian forces. Contrary to the Respondents claim
that the Applicant carried out large-scale unlawful shelling to terrorize Serb
civilians, the evidence fails to support a finding that the HV’s use of artillery
was extensive or indiscriminate.
11.127 The realization of the impending defeat of the SVK and a refusal to
accept Croatian sovereignty were the primary motivators for the evacuation
orders and mass evacuation from the ‘RSK’. It had little to do with alleged
targeting or the unlawful use of artillery. There was no plan to target fleeing
Serb civilians and there was no systematic killing of the Serbs that remained.
Without proof of indiscriminate shelling resulting in the so-called “exodus”
of the Serbs, and in the absence of evidence regarding systematic and planned
killings, the Respondent’s claim of genocide completely fails.
11.128 Further, there was no systematic looting and burning of property
by Croatia. Croatia took measures to prevent unlawful acts and initiated
investigations and legal proceedings to punish individual perpetrators of such
acts.As set out above, Croatia did not adopt legal measures to target the Serbs
with a view to ensuring that they did not return.
11.129 Finally, it is submitted that the Respondent’s Counter-Claim is
completely undermined by the lack of independent evidence. It has failed
to produce original documentation (its own or the records relating to the
so called RSK) which have left it in the invidious position of placing great
reliance on dubious documentation including that prepared by Veritas and the
methodologically flawed CHC Report. Furthermore, the evidence that has
been provided is not sufficiently particularised.
Volume 11.indd 445 12/14/2010 2:53:49 PM 446
Volume 11.indd 446 12/14/2010 2:53:49 PM 447
CHAPTER 12
THERE WAS NO GENOCIDE AGAINST SERBS IN THE ‘RSK’ AND
NO RESPONSIBILITY OF CROATIA
SECTION I: INTRODUCTION
12.1 This Chapter responds to the Counter-Claim against the Applicant
alleging that the crime of genocide was committed against the Serb civilian
population of the area designated by the Serb leadership as ‘Krajina’ during
OperationStormanditsaftermath.Itrefutestheallegation,whichisaxiomatic
totheRespondent’sCounter-Claim,thatagenocidalplanorpolicywasadopted
bytheCroatianpoliticalandmilitaryleadershipduringameetingontheisland
of Brioni on 31 July 1995. It also refutes the allegation that any inference of
genocidalintentcanbedrawnfromthemannerinwhichOperation Stormwas
conducted, from events that are alleged to have occurred in its aftermath, or
from the legislative and executive policies of Croatia in relation to the return
of the Serb civilian population of ‘Krajina’, and the protection of their civil
and political rights.
SECTION II: THE CRIME OF GENOCIDE
12.2 The Applicant does not dispute the Respondent’s claim that Croatian
Serbsconstituteaseparatenationalorethnicgroup. 1 Indeed,astheRespondent
rightly points out, their status as an identifiable national minority has, at all
material times, been recognised under Croatian law, and has been guaranteed
constitutional protection (including the right to proportional representation).
Nor does the Applicant dispute that the Serb civilian population living in
‘Krajina’ represented a substantial part of that national or ethnic group.
12.3 The Applicant denies, however, that the goal of Operation Storm
was directed to, or included in any way, the physical destruction 3f the
Serb population living in ‘Krajina’. Croatia’s primary intention in pursuing
Operation Storm was to achieve the lawful restoration of control over its
sovereign territory, restoring its internationally recognised borders, and re-
integratingthoseterritoriesthathadbeenunlawfullyoccupiedbySerbiasince
its aggression in 1991 and 1992. These areas constituted approximately one
third of the territory of Croatia. In view of the total absence of willingness
on the part of the rebel Serbs to negotiate the peaceful re-integration of that
territory, the Government of Croatia had no other options, and was fully
1 Counter-Memorial, paras. 1361-1366.
2 Counter-Memorial, para. 1364.
3 As noted in Chapters 10 and 11 above, Croatia’s secondary purpose was humanitarian
intervention in the territory of Bosnia-Herzegovina to prevent a Serbian massacre occurring
in Bihać, as had occurred in Srebrenica.
Volume 12.indd 447 12/14/2010 2:56:35 PM 448
entitled to bring the unlawful occupation to an end by lawful military means.
Croatia had in place measures to ensure that the Serb population living in
‘Krajina’ could remain in (or return to) their homes, with guaranteed civil and
political rights.
(1) N o e v i dNec eo fg eNo c i Nt eNt
12.4 TheRespondentarguesthatagenocidalintentbehindOperationStorm
is proved by the existence of a formal plan or policy to commit genocide. It
alleges that this plan was adopted during a meeting on the island of Brioni
4
on 31 July 1995. The Respondent expressly acknowledges that its case on
genocidal intent depends upon the interpretation of the transcript of that
meeting. In addition however the Respondent argues that that the allegedly
genocidal plan formed at Brioni was subsequently carried into effect. The
RespondentsubmitsthatthemannerinwhichOperationStormwasconducted,
taken in conjunction with the alleged persecution of Serb population living in
‘Krajina’, not only proves the commission of acts contrary to Article II (the
physical element of the crime of genocide) but also confirms that the policy of
the Croatian leadership was to destroy the Serb population living in ‘Krajina’
(and thus supports the inference which the Respondent seeks to draw from
President Tuđman’s statement during the Brioni meeting). None of these
submissions withstand scrutiny.
12.5 The physical factors upon which the Respondent relies are: (i) the
military superiority of the Croatian forces engaged Operation Storm; (ii) the
allegedly indiscriminate shelling of civilian targets; (iii) the displacement of
Serb civilians; (iv) the numbers of civilians killed during military operations;
(v) the killing of Serb civilians escaping in refugee convoys; (vi) the murder
of Serb civilians that remained in UNPA sectors South and North; (vii) the
destruction and looting of Serb-owned property; (viii) the imposition of
obstacles to the return of Serb civilians; (ix) the imposition of legislative
measures which allegedly discriminated against Serb civilians; and (x) failure
to bring perpetrators of crimes against Serb civilians to justice. 5
12.6 TheApplicantdeniesthattheelementsrelieduponbytheRespondent,
taken individually or in conjunction with one another, are capable of proving
genocidal intent. At the outset, the Applicant draws the Court’s attention to
the way in which the Respondent has chosen to put its case on dolus specialis.
The Respondent does not assert that the factors listed in paragraph 12.5(i)-(x),
even if viewed cumulatively, are capable of evincing genocidal intent on the
part of Croatia. The Respondent expressly accepts that if it is unable to prove
that a plan or policy to commit genocide was adopted at Brioni, as it alleges,
4
5 Counter-Memorial, paras. 1414-1422.
Counter-Memorial, para. 1391 et seq..
Volume 12.indd 448 12/14/2010 2:56:36 PM 449
then its case on genocidal intent must fail (and therefore the Counter-Claim
is bound to be dismissed in its entirety). The factual allegations made about
the conduct of Operation Storm, and its aftermath, are said to be no more
than confirmatory evidence of the genocidal plan allegedly formed at Brioni.
It is thus apparent that the entire Counter-Claim, as pleaded, hinges on the
inferences which the Respondent invites the Court to draw from the Brioni
transcript.
12.7 The Applicant recalls that the Respondent bears the burden of
proving genocidal intent such that the Court is fully convinced of it. Given
the gravity of the allegation, the Court will exercise considerable care before
finding a sufficiently clear indication of genocidal intent in the evidence.
For the reasons summarised below, and more fully developed in Chapter 11,
the Applicant submits that the transcript of the Brioni meeting contains no
evidence of intent on the part of the Croatian leadership to bring about the
physical destruction of the Serb civilian population of ‘Krajina’. Indeed, the
reverse is true. The meeting was solely concerned with the implementation
of a strategy for military engagement with the combined Serb forces, and the
lawful means to give effect to the objective of recovering sovereign control of
Croatian sovereign territory.
12.8 The inferences that the Respondent seeks to draw from the Brioni
transcript in turn depend entirely upon a selective and distorted misreading
of a single sentence uttered by President Tuđman and the absence of any
objection from the other participants at the meeting. Read objectively and in
contextitisclearthatthewordsusedbyPresidentTuđmanweredirectedtothe
lawful military objective of securing the defeat, retreat and expulsion of Serb
military forces from the territory of Croatia. Basing itself upon a tortuous and
disingenuous misreading of this statement, the Respondent then seeks to build
its entire case around the proposition that President Tuđman was referring to
the civilian population of ‘SAO Krajina’, rather than to its armed forces. The
Applicant invites the Court to conclude that a fair and objective reading of
President Tuđman’s statement, in its context, demonstrates conclusively that
the opposite is true.
12.9 This ought to be sufficient to dispose of the Respondent’s genocide
claim as pleaded since, by its own admission, the remaining matters upon
which it relies cannot prove genocidal intent. That said, the Applicant
expressly denies that all or any of the factual allegations summarised at
paragraph 12.5(i) to (x) above is capable of establishing the dolus specialis
for the crime of genocide. Each of the allegations is unfounded, based upon
unreliable evidence, or grossly exaggerated, and the inferences which the
Respondent seeks to draw are wholly unrealistic. The Applicant recalls, in this
context, that the Court will only draw an inference from an alleged pattern
of crimes if the proven facts leave no room for doubt as to the existence of a
Volume 12.indd 449 12/14/2010 2:56:36 PM 450
genocidal intent. Genocidal intent must be conclusively proved, and it is only
where such an inference is inevitable that the Court will be in a position to
conclude that crimes were committed with the intention to bring about the
physical destruction of a targeted group. In the Applicant’s submission, the
evidencefalls very far shortof thatmark. Indeed, itis fully consistentwith the
proposition that Croatia pursued legitimate and lawful political and military
objectives. To the extent that individual crimes may have been committed on
the ground, these crimes do not begin to prove a criminal intent on the part of
the Croatian political and military leadership (or any person associated with
that leadership). They certainly provide no evidence whatsoever of genocidal
intent.
12.10 Before addressing the evidence in detail, the Applicant would
make four general submissions about the evidential sources upon which the
Respondent has relied:
1. The Respondent has made extensive use of the OTP pre-trial
brief in the extant prosecution of the Gotovina et al case. The
documentiscitedasauthorityfortheallegationswhichitcontains.
The Applicant submits that this is a wholly impermissible line of
reasoning. In accordance with the guidance given by the Court
6
in its Bosnia judgment, the inclusion of factual allegations in
an Indictment issued by the OTP is of no evidential weight in
proceedings before the ICJ under the Genocide Convention. 7
If that is so, then it must follow that the elaboration of such
allegations in a pre-trial brief submitted by the OTP is equally of
no evidential value.
2. The Respondent has also relied upon extensive citation of the
statements and testimony of witnesses who have given evidence
in the Gotovina et al case. At the time of writing, there has been
no judgment of the ICTY recording definitive findings of fact
based upon that evidence, and no assessment of the reliability or
accuracyofthefactualstatementsonwhichtheRespondentrelies.
Accordingly, that testimony is of no greater evidential value than
any other statement or testimony on which either party relies. It
forms part of the material for the Court to consider, but it does
not enjoy any special status. It will be for the Court to determine
what weight, if any, to attach to that evidence.
3. TheRespondentreliesheavilyonreportsbytheCroatianHelsinki
Committee for Human Rights (‘CHC’) for its assessment of the
number of Serb civilian casualties incurred during Operation
6
Bosnia, paras. 218 - 219.
7 See Chapter 2, paras. 2.25-32, supra.
Volume 12.indd 450 12/14/2010 2:56:36 PM 451
Storm and thereafter, and relies almost exclusively on “evidence”
collected by the CHC in support of its allegation that Croatian
forces fired upon retreating refugee convoys. As the Applicant
8
has pointed out above, the methodology adopted by the CHC for
determining the number of Serb civilian casualties is manifestly
unreliable.The“evidence”adducedinsupportoftheallegationof
attacksonrefugeeconvoysisbaseduponstatementsofanonymous
witnesses. The Applicant submits that statements obtained by an
NGOfromindividualswhoseidentitiesareunknowncanbeofno
moreevidentialweightinproceedingsbeforetheICJthanbeforea
criminal tribunal. Even the Respondent is unaware of the identity
or reliability of the sources on which it relies. In the absence of
any information about a particular witness, it is impossible for the
Courttoevaluatethecredibility,reliability,orpotentialbiasofthe
testimony. Accordingly it should be disregarded in its entirety.
4. The Respondent also relies on data supplied by Veritas. The
Applicant submits that this organisation lacks any semblance
of independence, and that the methodology it employed is
demonstrably unreliable. The bias of Veritas is well-illustrated in
the statements made by Savo Štrbac, its President, who has said
thatpeacefulco-existencebetweenSerbsandCroatsintheregion
is unacceptable, since the Serb population needed to preserve its
“biological potential”. The Court should not place any reliance at
9
all on the “evidence” provided by Veritas.
(a) No plan or policy to destroy the Serb civilian population of ‘Krajina’
12.11 The primary purpose of Operation Storm was to achieve the re-
integration of the occupied areas, in accordance with international law. The
evidence demonstrates clearly that Croatia had been committed to reaching a
peacefulre-integrationofthoseterritoriesthroughnegotiation,buttheconduct
of the rebel Serb authorities, over the four years of occupation, had proved that
this was futile. Croatia was fully entitled to conclude that the occupation had
to be brought to an end by force. In the years preceding Operation Storm,
Croatia strengthened its armed forces, making improvements to their combat-
readiness, operational capacity, mobility and staffing, in preparation for
military action. This was precisely because the rebel Serb authorities had
proved repeatedly their determination to forestall a negotiated settlement, and
were backed in this stance by the Government and forces of the FRY. It was
no part of Croatia’s political or military strategy to eradicate the Serb civilian
population from ‘Krajina’. On the contrary, following both Operation Flash
and Operation Storm, the Government of Croatia took extensive measures to
8
Chapter 2, para. 2.65.
9 Chapter 2, paras. 2.66-68.
Volume 12.indd 451 12/14/2010 2:56:36 PM 452
reassure and protect the Serb civilian population and has gone to considerable
lengthstobringabouttherepatriationofthatpopulation,ofteninco-operation
with the FRY. 10
12.12 On 31 July 1995 President Tuđman met with members of the Croatian
military leadership on the island of Brioni. The purpose of the meeting was
to discuss the options for military action. By that time it was apparent that
the rebel Serb authorities had no serious intention of negotiating peaceful
re-integration. For his part, President Tuđman had made Croatia’s position
clear: either the Serb rebel authorities agreed to immediate action to achieve
peaceful re-integration, or Croatia would achieve re-integration through the
useofmilitaryforce.TherebelSerbdelegationinGeneva,however,hadclearly
received instructions to adopt stalling tactics in order to buy sufficient time
for Serb forces (including forces of the FRY) to mobilise more effectively. If
Croatia was to retain its military advantage (in terms of strategic deployment
and superior military capability) it had no option but to act quickly and
decisively.
12.13 ThetranscriptoftheBrionimeetingdisclosesnoevidencewhatsoever
of an intention on the part of any of those present to eradicate the Serb civilian
population of ‘Krajina’. The Respondent relies on a single statement made by
11
President Tuđman. The more extensive quotation reads:
“Therefore we should leave the east totally alone, and resolve the
question of the south and north. In which way do we resolve it? This
is the subject of our discussion today. We have to inflict such blows
that the Serbs will to all practical purposes disappear, that is to say,
the areas we do not take at once must capitulate within a few days.”
12.14 On a fair and objective reading of the transcript it is clear that when
the President spoke of causing the Serbs to “disappear” he was referring, in
the context of an armed conflict, to Serb forces rather than to the Serb civilian
population. The statement that areas that could not be “taken” immediately
must be forced to “capitulate” within a few days is plainly a reference to the
maximum length of time the Croatian forces could be allowed to overcome
the Serb military defences and force the surrender of the Serb forces. Read
objectively and in context, the President was plainly saying that if it did not
provepossiblefortheHVimmediatelytoovercometheSerbdefensivepositions
in any particular area (that is, if the forces defending those positions did not
immediately “capitulate”) then the HV would have to use sufficient military
power to ensure that the defending forces were overcome within a few days
at most. This was, after all, a meeting with senior military commanders, to
plan the execution of a military operation. In that context, the meaning of the
10
11Chapter 10, para. 10.98 and Chapter 11, paras. 11.112 - 11.120.
The Counter-Memorial cites this sentence no less than 18 times. For the references see
Chapter 11, supra.
Volume 12.indd 452 12/14/2010 2:56:36 PM 453
passage cited above is clear. If there were any lingering uncertainty about the
President’s meaning, it is put beyond doubt by the words which immediately
follow this passage of the transcript, and encapsulate the intention behind the
earlier citation in slightly different language:
“Therefore our main task is not Bihać, but instead to inflict such
powerful blows in several directions that the Serbian forces will
no longer be able to recover but will have to capitulate.” 1(emphasis
added)
The meaning of this statement admits of no doubt whatsoever. It explains
precisely the point the President was making at this part of the discussion,
and it could not be clearer. The President was instructing his senior military
personnel that Croatian forces were to use overwhelming force in order to
subdue the Serb forces, to bring about their surrender (or “capitulation” as it
is described in both passages) within a few days at most and to expel them
from the territory that had been unlawfully occupied by force.
12.15 There was, however, no suggestion of the forced deportation or mass
expulsion of the Serb civilian population. Nor was there any suggestion that
the military offensive would target Serb civilians or Serb civilian property.
As the history set out in Chapters 10 and 11 demonstrates beyond doubt, the
Croatian Presidency and Government went to considerable lengths during
and after Operation Flash and Operation Storm to persuade the Serb civilian
population to remain (in the face of orchestrated attempts by the “authorities”
of the ‘RSK’ in particular to bring about a mass evacuation). The participants
at the Brioni meeting were well aware that the ‘RSK’ “authorities” had made
detailed plans for the evacuation of ‘Krajina’ and that Serb combatants and
civilianshadalreadybeguntoleave(towardsBosniaandSerbia)inanticipation
ofaCroatianmilitaryattackinthearea.DuringtheBrionimeetingitwasnoted
that rebel Serb forces were looking for an opportunity to flee the conflict, and
it was anticipated that the military and civilian evacuation of the area would
intensify once hostilities began. The evacuation of a civilian population may
be expected in the face of a military campaign, and those present at Brioni
were well aware of this.
12.16 President Tuđman observed that the military strategy devised by
Admiral Davor Domazet made no provision for an orderly retreat of Serb
forces, or the evacuation of Serb civilians in the face of the advancing Croatia
offensive.ThePresidentsaidthattheabsenceofsuchacorridorwouldprevent
Serb forces from pulling out and fleeing the conflict. He observed that under
the proposed plan “you are forcing them to fight to the bitter end” (emphasis
added). He therefore ordered that an evacuation corridor should be left open.
The President’s conclusion was clear:
12 Chapter 11, para. 11.43. See Brioni Transcripts, Counter-Memorial, Annex 52, p. 2.
Volume 12.indd 453 12/14/2010 2:56:36 PM 454
“When we put pressure on them, now they are already partly moving
out of Knin. Accordingly, let us take into consideration, on a military
level, the possibility of leaving them a way out somewhere, so they
can pull out part of their forces.”13
It is fanciful for the Respondent to seek to impute a genocidal (or other
criminal) purpose to remarks, made on a single occasion, the meaning of
which gives no possible support for the Respondent’s reading, on their face, or
when taken in context. President Tuđman was simply directing that Croatian
military deployments on the ground should ensure an avenue of retreat so
that it would not be necessary for Serb forces to stand and fight to the end.
The alternative was encirclement, and an inevitable escalation of military and
civilian casualties. In military and humanitarian terms this decision was fully
justified, and lawful.
12.17 The Respondent’s suggestion that there is some significance to be
attached to the absence of any reference to humanitarian law at the Brioni
meeting is unreasonable and unwarranted. This was a meeting to plan
military strategy, whereas the duty to instruct troops on the ground to observe
humanitarian law is part of the implementation of a military strategy. The
evidence shows that such instructions were in fact given to Croatian armed
forces on the eve of Operation Storm. 14
12.18 In his remarks at Brioni, the President advised against the extensive
use of heavy artillery during the campaign, but advocated the shelling of
targetsinKninbecauseitwasavitalcentreofmilitaryoperationsfortheforces
of the ‘RSK’ and contained a significant number of strategically important
military targets.The suggestion that the President instructed the military to
destroy Knin is wholly unfounded. As the evidence shows, Croatian military
strikes targeted military installations, and not civilian targets, during the
attack on Knin. There is nothing in the transcript to suggest that the President
contemplated indiscriminate shelling or the shelling of civilians or civilian
targets there or elsewhere in the occupied territories. Indeed, the reverse is
15
true.
(b) The magnitude and nature of Operation Storm is not evidence of
genocidal intent
12.19 The fact that Croatia had made effective military preparations for
the liberation of the occupied territories is not evidence of genocidal intent.
Rather, it was part of a responsible military strategy. Croatia had been
13 Chapter 11, para. 11.48.
14
15 Chapter 11, para. 11.54 and the annexes cited there.
Chapter 11, para. 11.47.
Volume 12.indd 454 12/14/2010 2:56:36 PM 455
pursuing a peaceful diplomatic and political solution for over four years.
Those efforts had been met with intransigence and filibustering on the part of
the secessionist Serb authorities. Fully aware that a peaceful political solution
might be difficult to achieve, the Croatian government had at the same time
been planning for the possibility of lawful military action to restore Croatia’s
territorial integrity.6 Those preparations began in 1992 and the plans for
military action were periodically updated.
12.20 The detailed military strategy for Operation Storm was only finalised
inthedaysbeforeitwaslaunched.ItprovidedforasimultaneousattackbyHV
forces in all operational and tactical directions, and an advance to the border
between Croatia and Bosnia, which was to be completed within seven days.
This was a large scale and complex military operation involving multiple axes
of attack across a lengthy confrontation line. MD Split was to engage with
the North Dalmatia Corps of the SVK; MD Zagreb was to engage with the
Banovina Corps of the SVK; MD Karlovac was to engage with the Kordun
Corps of the SVK; and MD Gospić was to engage with the Lika Corps of the
SVK. Whilst HV forces outnumbered those of the SVK, the latter was at least
equally well-equipped in terms of tanks and artillery.The SVK had 300 tanks,
295 armoured battle vehicles and 360 pieces of heavy artillery.
12.21 On the Croatian side, operational planning was governed by HV
Main Staff Directives issued on 26 June 1995 which directed HV forces to
begin intensive preparations, including re-grouping and mobilization, to bring
the forces into a state of combat-readiness. On 4 August those forces, and
forces of the MUP of Croatia, were issued with orders to commence combat
17
operations. The operation was swift and effective.
12.22 None of this, however, even begins to suggest a criminal intent, still
lessagenocidalintent.OperationStormwasacompetentlyprepared,carefully
planned and professionally executed military operation, which succeeded in
achieving its objective quickly and efficiently, with a minimum of civilian
casualties, and limited damage to civilian property. It stands in stark contrast
to the Serb military operation in 1991 and 1992.
(c) There was no indiscriminate shelling, or targeted shelling of civilian
targets, at Knin or elsewhere
12.23 TheRespondentfalselyclaimsthatOperationStormwascharacterised
by the indiscriminate use of heavy artillery, with the intention and effect of
inflicting damage to civilian targets. Quite apart from the fact that the Brioni
transcripts reflect President Tuđman’s clear order that artillery should be used
sparingly,the evidence simply does not bear out the Respondent’s allegation.
16 Chapter 11, e.g. paras. 11.39, 11.56.
17 Chapter 11, paras. 11.60, 11.62.
Volume 12.indd 455 12/14/2010 2:56:36 PM 456
12.24 Operation Storm began in the early hours of 4 August. At 5 a.m.
MD Split launched a simultaneous attack on a series of Serb military targets,
including military installations located in Knin. The Respondent claims that
the artillery Order to the MD Split failed to specify any targets, and implies
that this amounted to permission to direct artillery at civilian targets. In fact,
the Artillery Order directed artillery support to engage in “artillery shelling
to rout, neutralise and destroy the enemy’s combat disposition at the tactical
and operational level … [p]revent the enemy from bringing in new forces …
[n]eutralize the artillery positions of enemy batteries and destroy the enemies
communications centres and command post.” 18
12.25 ThemilitarytargetsinKninwereamongstthemostsignificantlinchpins
in the SVK infrastructure. Knin was the military and political headquarters of
the‘RSK’andthecentreofimportantmilitarytargets,logisticsconcentrations,
lines of communication, reserve forces and mobilisation points. These
included the headquarters of the SVK General Staff, the Northern Barracks,
theTVIK factory, the telegraph and post office, and the railway intersection in
the town.Acontemporaneous report from SVK intelligence confirms that HV
artillery fire was directed at military targets in Knin.The report notes that the
first strike was on the building of the SVK General Staff, and its fleet of cars,
both of which sustained heavy damage, and that other strikes on the 4August
were directed on the Northern Barracks (which housed 1300 combatants),
on the TVIK factory and on the railway hub. Late on the evening of the 4
August, the SVK General Staff abandoned Knin and relocated to the village
of Srb. Given the military and strategic importance of these and other military
targets in Knin, there was a further artillery barrage the following morning.
HV forces entered the town at 1100 hours on 5 August and encountered very
19
little military resistance from the forces of the SVK.
12.26 TheRespondentpointstoevidencethatartillerydamagewascausedto
certaincivilianpropertyinKnin,andsuggeststhatthisisproofofindiscriminate
shelling. This is contrary to the evidence. All of the contemporary military
assessments confirm that the HV attack was properly focussed on legitimate
military targets. International observers entering Knin two days after its
liberationconfirmedthatartillerydamagewasconcentratedonmilitarytargets,
that the damage to civilian property was far less than expected, and that such
18
Order of Attack, Split MD, 2 August 1995, Annex 171. Similarly, the HV Main Staff direc-
tive issued prior to Operation Storm, directed the Split MD to do the following:
“neutraliz[e] GS VRS/Republika Srpska Army Main Staff/ and the 7th Corps Com-
mand Post in Knin, the brigades’ command posts, concentrations of enemy man-
power, armour, and artillery in the area of Knin and Benkovac, including ammuni-
tion and fuel depots, while supporting the main forces in attack and preventing an
enemy counter-attack from the direction of Knin, Kaštel Žegarski and Benkovac.”
See Republic of Croatia, Ministry of Defence, Directive Op. No. 12-4/95, 26 June 1995, An-
19x 170, p. 6.
Chapter 11, paras. 11.62 and 11.73.
Volume 12.indd 456 12/14/2010 2:56:36 PM 457
damage as had been caused to civilian property was concentrated in areas of
close proximity to legitimate military objectives. This is the clearest possible
evidence that any collateral damage to civilian property was proportionate
to the lawful military objectives being pursued. The experienced personnel
who made these assessments found no evidence of indiscriminate shelling in
Knin. 20
12.27 The same is true of the artillery fire directed at the towns of
Benkovac, Obrovac and Gračac, which the Respondent claims to have been
indiscriminate. These towns each contained important military installations
which were the target of artillery fire by HV forces. The plans annexed to this
Reply demonstrate clearly the location of these military targets in these and
other towns. 21
(d) The numbers of civilian casualties killed in HV military operations
is not evidence of genocidal intent
12.28 TheRespondentallegesthatthetotalnumberofSerbcivilianswholost
their lives during and after Operation Storm is, in itself, evidence of genocidal
intent. The Counter-Memorial accepts that there is no precise figure for the
number of deaths, but proceeds to cite a figure of 677 civilians who allegedly
died or went missing during and in the 100 days after Operation Storm. This
figure is drawn from the CHC Report. The Applicant has grave reservations
about the methodology adopted by the CHC, which are fully elaborated in
Chapters 2 and 11, supra. However, even taking this figure at face value, it
is clear that the number of civilian casualties incurred as a direct result of the
military action taken during Operation Storm was limited. Whilst any civilian
casualty of armed conflict is a matter of grave regret and concern, the total
numberlistedbytheCHCasdeadormissing(eveniftakenatfacevalue)does
not suggest any intention on the part of the Applicant to target Serb civilians.
TheApplicant recalls that this figure represents just over one twentieth of the
total number of Croat civilian casualties inflicted by the Serb forces during the
1991 and 1992 offensives to capture and occupy the same territory.
12.29 On a close analysis of the CHC figures however, the actual number of
civilian casualties inflicted during the military operation itself is significantly
lowerthan677.TheCHCestimateincludesnotonlythosewhoseremainshave
been identified (or who have otherwise been confirmed dead) but also those
who are listed as still missing and whose fate is unknown. More importantly,
it includes Serb civilians who died in the 100 days after the campaign was
concluded. The Respondent itself asserts that the majority of Serb civilian
casualties were not killed in the course of the military attacks that comprised
Operation Storm, but died as the result of alleged unlawful (and unauthorised)
20
Chapter 11, para. 11.74.
21 See Annex 178.
Volume 12.indd 457 12/14/2010 2:56:36 PM 458
attacks on the retreating refugee convoys. 22 For the reasons set out in Chapter
11, 23and summarised below, the Applicant submits that there is no credible
evidencetoprovethatanysuchattacksasmayhaveoccurredwereattributable
to the Croatian armed forces, or to the Croatian State. The important point
for present purposes, however, is that on the Respondent’s own case, it is only
a minority of the 677 individuals listed by the CHC that can be considered
as civilian casualties of authorised military action taken during Operation
Storm.
12.30 The Respondent also makes passing reference to an estimate of 1,200
Serb civilian casualties, cited in the Veritas Report. As noted above, the
Applicantsubmitsthatthisorganisationlacksanysemblanceofindependence,
and that the methodology it employed is demonstrably unreliable. Even on
these figures, however, the submissions made above would apply with equal
force.
(e) The displacement of Serb civilians was not the intention behind
Operation Storm
12.31 The Respondent alleges that the Serb civilian evacuation was the
direct and intended result of the HV military offensive, and that it was the
principal purpose behind Operation Storm. As theApplicant has pointed out,
the primary objective of Operation Storm was the lawful restoration of the
territorial integrity of a sovereign state, within its internationally recognised
borders and conducted in accordance with international law. The Applicant
has already pointed out that the leaflets contemplated at the Brioni meeting
were to include an appeal to Serb civilians to remain in Croatia. On 4 August
President Tuđman appealed to the Serb population to stay. Moreover, Croatia
had constitutional and legal protections in place which recognised the Serb
civilian population of Croatia as a national minority, and guaranteed its civil
and political rights. There is no question therefore of Croatia having planned
or effected the “ethnic cleansing” of ‘Krajina’. The position of the Croatian
Government throughout the period from 1991 to 1995 was that the solution
lay in peaceful co-existence between the Serb and Croat civilian populations
of the area. As the Applicant has demonstrated however, the settled policy
of the ‘RSK’ authorities was that peaceful co-existence between the two
communities was impossible.
12.32 A military operation on the scale of Operation Storm is bound to
result in the large scale movement of civilians. The evidence confirms that
the evacuation of the Serb civilian population of ‘Krajina’ was the result
of a detailed evacuation plan put in place by the ‘RSK’ “Supreme Defence
Council” long before Operation Storm. Its stated purpose was to protect the
22
Counter-Memorial, para. 1241.
23 Chapter 11, paras. 11.87 - 93.
Volume 12.indd 458 12/14/2010 2:56:36 PM 459
civilian population and to “relieve Serbian fighters holding the defence lines
of the burden of care for their families”. However, the evidence suggests that
it was also motivated by the conviction on the part of the ‘RSK’ leadership
that peaceful co-existence, under Croatian Government control, and within
the national boundaries of Croatia, was unacceptable to the secessionist Serb
movement in Croatia. 24
12.33 Accordingly, on 29 July 1995 an order was issued by the ‘RSK’
authoritiesrequiringtheimmediateupdateofevacuationplans;on31July1995
the ‘RSK’police issued an order for the evacuation of civil documents; and on
2 August 1995 Civil Protection ordered urgent reports on the implementation
of plans for the evacuation of the civilian population. The ‘RSK’ authorities
organised television broadcasts on TV Knin showing simulated evacuations
from towns in former sectors North and South to familiarise the population
with evacuation contingency plans. The evacuation began before the arrival
of HV forces. On 4 August the ‘RSK’ Supreme Defence Council ordered the
formal and orderly evacuation of the civilian population of Knin, Benkovac,
Obrovac, Drniš and Gračac, across the border into Bosnia and thereafter to
Serbia. There is evidence that in some cases, ‘RSK’ forces carried out the
25
evacuation by force.
12.34 The Applicant, as noted above, does not dispute that this evacuation
was in part motivated by the intention of the ‘RSK’ “authorities” to take
steps to protect the civilian population, particularly since its own military and
strategic headquarters (which were legitimate military targets for the HV)
had been located in densely populated areas. However, as the UN Secretary
General’s office noted at the time, there was a political determination amongst
the ‘RSK’leadership, shared by the Serb civilian population of the ‘RSK’, to
leave Croatia if the occupied territories were restored to Croatian Government
control.TherestorationofCroatianGovernmentcontrolwouldinevitablylead
to the return (under Government protection) of the Croat civilian population
that had been displaced during the Serbian aggression of 1991 and 1992. This
in turn would require peaceful co-existence between the two communities,
under the terms of the Constitution. It had been the consistent position of
the ‘RSK’ that peaceful co-existence between Serbs and Croats in the region
was impossible, and that the restoration of Croatia’s territorial integrity was
unacceptable. The Secretary General informed the Security Council that the
evacuation of the Serb civilian population from the occupied territories had
been “orderly” but that it was “difficult to determine” whether it was the result
of fear of the HV military attack, or whether it was motivated by “a desire
not to live under Croatian authority, or encouragement by local leaders to
depart”.
12.35 The evacuation of the Serb civilian population of the area designated
24 Chapter 11, paras. 11.77 - 84.
25 Chapter 11, paras. 11.78 and 11. 83.
Volume 12.indd 459 12/14/2010 2:56:37 PM 460
by the Serb leadership as ‘Krajina’ was not, therefore, a forced expulsion of
the kind that was inflicted on the Croat civilian population when the Serb
forces took control of the region in 1991 and 1992. It was not a campaign
of “ethnic cleansing”, even if (as the result of action taken by the ‘RSK’
authorities) Operation Storm led to the displacement of the majority of the
Serb civilian population. Serb civilians were not rounded up by the HV and
driven to the border, as had occurred during the earlier military campaign.
Rather, the evacuation was planned and implemented by the authorities of the
‘RSK’.
12.36 The Applicant recalls that even where forced displacement has
occurred with the intention of “ethnically cleansing” an area of territory, this
does not amount to genocide, nor is it evidence of genocidal intent, unless its
purpose is to bring about the physical destruction of an ethnic group in whole
or in part, rather than merely its dissolution or displacement. 26 Operation
Storm was not aimed even at achieving the displacement of the Serb civilian
population of the area, let alone its destruction. The aim of the Croatian
leadershipwastorestoreCroatiannationalboundaries,andtoachievepeaceful
co-existence between the two communities through the return of the displaced
Croat population, and the implementation of constitutional protection for the
Serb population as a national minority. Such a solution was unacceptable to
the leadership of the ‘RSK’. To the extent that the Serb civilian population
of ‘Krajina’ was in fact displaced as a result of Operation Storm, this was
due to measures taken by the ‘RSK’ to evacuate the territory in the face of
proportionate military action taken by Croatia to achieve its lawful military
objectives.
(f) Croatia is not responsible for the deaths of Serb civilians fleeing in
refugee convoys
12.37 The Respondent alleges that Croatia is responsible for targeting
civilians in refugee convoys evacuating the conflict zone. In support of this
allegation it relies heavily on statements made by anonymous witnesses to
the CHC. Those statements are not annexed to the Counter-Memorial, and
the identity of those who made the statements is unknown. As the Applicant
has pointed out above, this makes it impossible for the Court to evaluate the
credibility or reliability of the statements, or the summary extracts reproduced
by the CHC. This material is of no evidential value.
12.38 To the extent that the Respondent cites identifiable and independent
sources, the allegations are as follows:
1. Mrs. Elizabeth Rehn, the Special Rapporteur of the Commission
on Human Rights filed a report alleging that fleeing civilians
26 See Chapter 8, supra.
Volume 12.indd 460 12/14/2010 2:56:37 PM 461
“were subjected to various forms of harassment including
military assaults and attacks by Croatian civilians”. She refers
to the alleged shelling of a refugee column between Glina and
Davor on 8 August 1995 which resulted in four fatalities; and
an attack by a “Croatian mob” in Sisak on 9 August 1995 which
resulted in one fatality.
2. Human Rights Watch reported an incident of military attack on a
convoypassingclosetoPetrovac(whichhasalsobeenthesubject
of evidence in the ongoing Gotovina et al trial in the ICTY), and
a further incident in which a convoy was fired upon inside the
Republic of Srpska.
12.39 In the context of an allegation of genocide, it is first necessary to put
the scale of these alleged attacks in context.The Respondent accepts that there
is no reliable data on the total number of civilian fatalities caused by these
alleged incidents, but relies on an estimate provided by a Belgrade-based
NGO (the Humanitarian Law Centre) which suggests that 300 people were
killed in total. This figure does not reliably distinguish between civilians and
military personnel.
12.40 If,andtotheextentthat,attacksoncivilianrefugeesfleeingtheconflict
occurred, whether they were perpetrated by members of the HV, by the armed
forces of Bosnia-Herzegovina, or by civilians, theApplicant considers that to
be deplorable and to amount to the commission of individual crimes. There
is, however, very limited reliable evidence to identify the perpetrators of such
attacks, and none is cited by the Respondent. Nor is there reliable evidence to
prove that any or all of the attacks were targeted against civilians, rather than
evacuating military personnel. Most significantly, there is not the slightest
evidencetosuggestthatanyattackoncivilianpersonnelwasauthorisedbyHV
commanders, or was contemplated or foreseen by any senior HV personnel.
12.41 Based on the evidence adduced by the Respondent, the Applicant
makes three principal submissions. First, the Applicant submits that there is
insufficient evidence to enable the Court to infer that any attack by the HV on
a retreating “column” involved an attack directed at civilians so as to amount
to the commission of a war crime:
1. It is clear that the columns of people evacuating the territory of
Croatia included not only civilian refugees, but also combatants.
There is evidence that such columns were intermingled. Indeed,
the Respondent admits that the attack near Petrovac involved the
use of artillery fire on what it describes as an “SVK column”. The
RespondenthasadducednoevidencethatwouldenabletheCourt
to determine whether any military personnel were unarmed and
Volume 12.indd 461 12/14/2010 2:56:37 PM 462
hors de combat at the time. In the Applicant’s submission, the
Courtcouldnotsafelyconcludethatthisattack,evenifitoccurred
as alleged, constituted a war crime without a much more detailed
consideration of the evidence, including an accurate assessment
of the number of active combatants that were in the SVK column
that was allegedly fired upon. Given that this convoy included
military personnel, the alleged attack is certainly not evidence
of genocide. Since it is clear that a number of the retreating
columns included military personnel, it would dangerous to draw
any generalised conclusions from the evidence adduced by the
Respondent.
2. The evidence also establishes that a number of the refugee
columns passed through combat zones where active hostilities
were continuing. This was the case in relation to Banovina and
Kordun and Topusko as well as in other areas. Without a far
more detailed analysis of each alleged incident, the possibility
that some civilians were killed in cross-fire cannot be safely
excluded.
12.42 Secondly, the Applicant submits that there is no reliable evidence
enabling the Court to conclude that there was a pattern of attacks perpetrated
by forces of the HVor that Croatia is otherwise internationally responsible for
them:
1. The evidence establishes that forces of the ABiH 5 thCorps were
involved in the fighting, particularly along the border between
Croatia and Bosnia. The possibility that some of the attacks
relied upon by the Respondent were perpetrated by forces of the
ABiH cannot be excluded. The Respondent has not alleged that
such forces were de facto organs of Croatia, or that they were
operating under the direction and control of Croatia so as to meet
the tests for State responsibility laid down by the Court in its
Bosnia judgment. Nor could such an allegation reasonably be
made on the evidence.
2. TheallegationsmadeintheCounter-Memorialincludeallegations
that Croatian civilians harassed and attacked Serb civilians in the
retreating refugee convoys. That is one of the allegations made
by Mrs. Rehn The Respondent has not alleged that theApplicant
bears international responsibility for random acts of violence that
may have been perpetrated by civilians, and has not pleaded an
allegation of failure to prevent genocide. Nor could it do so in the
light of the criteria laid down by the Court in the Bosnia case.
Volume 12.indd 462 12/14/2010 2:56:37 PM 463
12.43 Thirdly, the Applicant submits that if, and insofar as it is proved
that HV forces unlawfully fired upon civilian targets in the refugee convoys,
this would represent the commission of a war crime by the perpetrators. In
the absence, however, of any evidence establishing that such attacks were
authorised at a senior level within the HV, or within the political leadership of
Croatia, it would not amount to evidence of genocidal intent.
12.44 In summary, the Applicant submits that the Respondent has failed to
prove: (a) that the alleged attacks occurred on a systematic scale; (b) that all
or any of them involved unlawful military action by the HV against civilian
targets; (c) that they were authorised by the military or political leadership of
Croatia, or (d) that they are otherwise attributable to Croatia, on the applicable
principles of State Responsibility.
(g) Croatia is not responsible for the killing of Serb civilians that
remained
12.45 TheRespondentallegesthatasgroundforcesenteredtheconurbations
in the occupied territories they killed combatants that were hors de combat
and civilians. It cites Mrs Rehn’s report which alleges that after the HV had
assumed control of certain areas, and particularly Knin, its forces killed
individuals without military justification. It describes the discovery of 120
bodies (although it is impossible to determine how many of these were
combatants killed in action), and suggests that “a common murder method
was shots in the back of the head.”
12.46 This section of the Respondent’s Counter-Memorial cites numerous
instances in which individual Serb civilians were found dead, in sectors South
and North, in circumstances suggesting that they may have been murdered. 27
Examples include elderly people found dead with their throats cut,
decapitatedormutilatedremains, bodiesobservedinthestreets,foundinside
their homes, or found in shallow graves. As regards Knin, the Respondent
relies on a CHRC report alleging that 13 people were killed by the HV ground
forces entering the town. 30
12.47 Allegations made at this level of generality are extremely difficult
to respond to. In the absence of any detailed accounts, or descriptions of
victims, the perpetrators or the circumstances of an incident, it is unreasonable
to expect the Court to draw inferences adverse to the Applicant. The mere
finding of mortal remains, even if there is forensic evidence that the cause
of death is suggestive of murder, does not provide sufficient information to
enable reliable conclusions to be drawn as to the circumstances in which the
27 Counter-Memorial, para. 1258
28 Counter-Memorial, para. 1268.
29 Counter-Memorial, paras. 1262, 1265 and 1281.
30 Counter-Memorial, para. 1261.
Volume 12.indd 463 12/14/2010 2:56:37 PM 464
death occurred or the identity of the perpetrator. It cannot simply be assumed,
from the finding of mortal remains, that each death was a murder and that it
must have been perpetrated by theApplicant’s armed forces.
12.48 Moreover, it must be borne in mind that at least some of these deaths
must have occurred in the context of a military operation as ground troops
entered towns which had been defended by the ‘RSK’and sought to bring the
area under effective control. In such a situation, there is an inevitable risk that
individualsencounteredonentrywillbetreatedashostileunlesstheypromptly
and convincingly demonstrate peaceful intent. All of these factors make it
impossible for the Court to draw generalised inferences from the finding of a
relatively limited number of human remains in the absence of specific factual
allegations concerning the manner in which any individual met their deat▯h.
12.49 Insofar as the Counter-Memorial includes any specific allegation of
murder by members of the HV or the Croatian MUP, it relies on anonymous
statements collected by the CHRC which are not themselves appended.As the
Applicant has already observed, a second summary of an anonymous witness
statement is of no evidential value. Apart from this material, the only direct
testimony adduced by the Respondent derives from international monitors
who gave evidence during the Gotovina et al trial as to the finding of human
remains, but who were not in a position to give any direct testimony as to the
circumstances in which the deaths occurred.
12.50 InthesecircumstancestheApplicantsubmitsthatnoreliableinferences
can be drawn from the evidence adduced by the Respondent. It may well be
that some of these deaths were attributable to the acts of individual members
of the HV and the Croatian MUP, and it may be that some of those amounted
to the war crime of murder. It is impossible however to know how many of the
fatalities (or which of them) fall into this category. The one certainty is that
the Respondent has adduced no evidence whatsoever to suggest that the HVor
MUP commanders had any policy of targeting civilians, and there is no basis
for suggesting that any crimes that may have been committed were part of an
organised, or systematic, plan to kill civilians.
(h) Croatia is not responsible for the destruction and looting of Serb
civilian property
12.51 The Applicant does not dispute that acts of looting or destruction
took place in the execution of Operation Storm, although the extent of these
crimes is grossly overstated by the Respondent. The Court in the Bosnia case
held that the destruction of civilian property (including sites of cultural and
religious significance) does not constitute a genocidal act within Article II(c)
since it does not necessarily connote an intention to bring about the physical
destruction of the persons making up a protected group.
Volume 12.indd 464 12/14/2010 2:56:37 PM 465
12.52 Whilst a planned or systematic campaign of destruction aimed at
eliminating all signs or symbols of the presence of a protected group can
contribute to an inference of genocidal intent, the Respondent has adduced no
evidence to suggest, much less to prove, that the crimes against property on
which it relies were systematically perpetrated, or that they were authorised or
tolerated by the Croatian Government or the HV command. On the contrary:
1. There is nothing in the Brioni transcript (which the Respondent
assertstobetheformationofapolicyofgenocide)tosuggestthat
attacks should or would be mounted on Serb civilian or cultural
property. On the contrary, it is clear that President Tuđman
intended to (and did) make public appeals to the Serb civilian
population to remain in their homes.
2. The perpetrators of the attacks on which the Respondent relies are
in most cases unidentified such that it is impossible to attribute
responsibility to the Applicant. Insofar as those attacks may
have been perpetrated by private individuals, those acts cannot
be attributed to the Applicant, and the Respondent has made no
allegation of failure to prevent acts of genocide by non-state
actors.
3. TheterritoryliberatedduringtheOperationwaspromptlyreturned
to the constitutional order of Croatia, and attempts were made
to guarantee law and order, including the personal safety of
civilians and the protection of property. Police stations, courts
and other essential governmental institutions were quickly
established. The fact that crimes against property may have
been committed does not establish that these were authorised,
permitted to occur or otherwise tolerated. Numerous orders to
prevent crime and protect individuals and property were issued
by various civilian and military organs, and the Croatian police
and judiciary issued over a thousand sets of legal proceedings
concerning the destruction of Serb-owned property.
4. There is no evidence of widespread attacks on symbols of cultural
or religious significance to the Serb population of ‘Krajina’. On
the contrary, the evidence shows that during and after Operation
Storm, there were no attacks at all on Serb Orthodox churches or
cemeteries. Of 30 Orthodox churches in the occupied territory,
only the church of St. Nedjelja in Dabar was slightly damaged.
(i) Croatia did not impose unreasonable obstacles to the return of Serb
civilians
Volume 12.indd 465 12/14/2010 2:56:37 PM 466
12.53 TheApplicanthas,inChapter11,addressedindetailtheRespondent’s
argumentthatitimposedunreasonableobstaclestothereturnofSerbcivilians:
see paragraphs 11.112-114, supra. TheApplicant reiterates that between 1991
and 1995 Croatia provided shelter for over one million people, (including
550,000 internally displaced persons and 400,000 refugees from the region).
The Croatian Government favoured organised return at the earliest possible
opportunity,andthatprocesscommencedassoonastheappropriateconditions
were in place. To that end, the Government adopted a Programme of Return
and Care for Displaced Persons, Refugees and Resettled Persons and a series
and bilateral and international agreements, facilitating repatriation.
(j) Croatia did not adopt legislative measures to deter the return of Serb
civilians
12.54 The Respondent alleges that the Applicant took legislative measures
designed to inhibit the return of Serb refugees including the permanent
confiscation of Serb-owned property and the amendment of the election Act
to reduce Serb representation in Parliament.As stated in Chapter 11, there was
no permanent confiscation of Serb-owned property. 31 Without prejudice to its
detailed response, theApplicant would observe that neither of these measures
is remotely capable of constituting a genocidal act, or of evidencing genocidal
intent.
12.55 In any event, the assertion is factually inaccurate. The Applicant
has adopted numerous measures, including programmes, campaigns and
political agreements, to encourage and facilitate the return of Serb civilians.
It has invested considerable resources on reconstruction and housing, aimed
towardsthesustainablereturnandintegrationofreturnees.ThenumberofSerb
returnees illustrates the extent and success of theApplicant’s endeavours.
12.56 The Respondent’s further assertion that Croatia adopted amendments
to its electoral Act with a view to discriminating against Croatian Serbs is
equallywithoutfoundation.TheActispredicatedonproportionalrepresentation
and is itself demonstrative of the fact that the Applicant did not at any time
discriminate against Croatian Serbs.
(k) Croatia is not responsible for failure to punish acts of genocide
12.57 FinallytheRespondentallegesthattheApplicanthasgrantedeffective
immunity from criminal prosecution to individuals of Croat nationality guilty
of genocide. The Respondent’s criticisms of the Croatian criminal justice
system are addressed by theApplicant in Chapter 2, at paragraph 2.69 et seq..
It is not credible for the Respondent to allege that Croatia’s prosecutorial
system is capable of evincing genocidal intent.
31 Chapter 11, paras. 11.115-121.
Volume 12.indd 466 12/14/2010 2:56:37 PM 467
(2) t h ePh y s i cell e Nte: geNo c i d lc t s
12.58 The Applicant submits that there is no evidence that genocidal acts
were committed by the forces of Croatia:
1. Killing Members of the group (Article II(a): Whilst it is
undeniable that there were civilian casualties during Operation
Storm and thereafter, the Respondent has adduced no reliable
evidence to prove that such casualties resulted from the unlawful
acts by the armed forces of Croatia (that is, acts in breach of
international humanitarian law). Insofar as there is evidence of
the deaths of non-combatants, there is no reliable evidence as to
the circumstances of death or the identity of the perpetrators.
2. Causing serious bodily or mental harm to members of the group
(Article II(b)):Again, there is no convincing evidence that bodily
ormentalharmwasinflictedunlawfully(inbreachofinternational
humanitarian law).
3. Deliberately inflicting on the group conditions of life designed
to bring about its destruction in whole or in part (Article II(c)):
For the reasons set out above, there is no evidence of genocidal
intent on the part of the Government of Croatia, or those for
whom it bears international responsibility and accordingly there
is no evidence capable of sustaining the alleged breach ofArticle
II(c). As the Applicant has pointed out previously, neither the
displacement of individuals from the protected group, nor the
destruction of property can constitute and unlawful act contrary
toArticle II(c).
12.59 The Respondent has sought to suggest that in its original application
the Applicant acknowledged, against its own interest, that the Serb civilian
32
population of ‘Krajina’ was a victim of genocide in 1995. This suggestion
is without any merit or foundation and is strongly denied. It is based upon
an allegation, made in the originating application filed in 1999, that the FRY
(not Croatia) was responsible for effecting the forced displacement of the
Serb civilian population in 1995 for purely political reasons, and that this
was capable of constituting a violation of the Genocide Convention. As the
33
Applicant made clear in its 2001 Memorial, that allegation (which bears no
resemblancewhatevertotheallegationmadebytheRespondentinitscounter-
claim) was no longer being pursued. As the Respondent is well aware, the
Applicant does not, and never has, acknowledged that Operation Storm, or its
aftermath, constituted genocide. For the avoidance of doubt, the Applicant’s
consistent position (since the filing of its Memorial) has been that although
32 Counter-Memorial, para. 1453.
33 Memorial, para. 1.06
Volume 12.indd 467 12/14/2010 2:56:37 PM 468
the suffering of the Croatian Serbs in 1995 is beyond doubt, and although that
suffering was exacerbated by an evacuation plan motivated in part by political
considerations, it does not meet the elements of a crime attributable to the
FRY (or any other State) under the Genocide Convention.
SECTION III: THE CRIMES OF CONSPIRACY, INCITEMENT,
ATTEMPTAND COMPLICITY (ARTICLE III)
12.60 The Respondent alleges a conspiracy to commit genocide contrary
to Article III. The allegation is based solely on its misreading of the Brioni
transcript and the inferences it seeks to draw from this. The Applicant has
already addressed these issues in Section II above.
SECTION IV:ATTRIBUTION
12.61 The Applicant accepts that it bears international responsibility for
the statements and acts of those present at the Brioni meeting and for the
conduct of military personnel of the HV and police personnel of the Croatian
MUP during and after Operation Storm (“the Croatian armed forces”). For
the reasons already elaborated, there is nothing in the transcript of the Brioni
meeting to evidence any genocidal intent, and nothing in the acts properly
attributable to the Croatian armed forces from which such intent is capable of
being inferred.
12.62 Insofar as any of the acts alleged by the Respondent were, or may
have been committed by the forces of ABiH, or by civilians, the Applicant
disputes that it can be held internationally responsible for those acts.Applying
the principles of attribution laid down by the Court in its Bosnia judgment,
those acts cannot be attributed to the Croatian State, and the Respondent has
made no allegation under Article I of a failure to prevent acts of genocide
beingperpetratedbypersonsorentitiesforwhichitdoesnotbearinternational
responsibility.
SECTION V: NO EVIDENCE OF FAILURE TO PUNISHALLEGED
VIOLATIONS OFARTICLES IIAND III OFTHE CONVENTION
12.63 The Respondent alleges that the Applicant has failed to punish
genocide, as required by Article I and other complimentary provisions of
the Genocide Convention. This allegation is based upon the proposition that
President Tuđman and others formed a genocidal plan at Brioni, and that this
engaged the Applicant’s duty under Article I to prosecute them for the crime
of genocide, or conspiracy to commit genocide. Since the Applicant does not
accept that the Brioni meeting provides the slightest evidence of genocidal
intent, nor that such an intent is to be inferred from the execution of Operation
Storm or its aftermath, it follows that theApplicant disputes that its obligation
underArticle I has been engaged.
Volume 12.indd 468 12/14/2010 2:56:37 PM 469
12.64 Insofar as the Respondent relies on allegations of ethnic bias in the
prosecution of war crimes, the Applicant has set out in Chapter 2, above, its
comprehensiveresponse:seeparagraph2.69etseq.;seealso,paragraph12.57,
supra.
CONCLUSION
12.65 The Respondent has wholly failed to prove the allegation made in its
Counter-Claim. On the Respondent’s pleaded case, that allegation depends
uponthesuggestionthattheselectiveandmisleadingquotationsithasplucked
from transcript of the Brioni meeting convincingly prove the formation of
a plan or policy to bring about the physical destruction of the Serb civilian
population of ‘Krajina’. If the Court does not find that allegation proved
then, as the Respondent acknowledges, its entire Counter-Claim must fail.
In the Applicant’s submission the Brioni transcript does not begin to suggest,
still less to prove, the formation of such a plan or policy. Operation Storm
was conceived for a lawful purpose, and executed with professionalism and
with a minimum of civilian casualties. Whilst individual crimes may have
been committed, there is no evidence from which the Court could infer the
dolus specialis for the crime of genocide, and no evidence that genocidal
acts, attributable to the Applicant, were committed during or after Operation
Storm.
Volume 12.indd 469 12/14/2010 2:56:37 PM 470
Volume 12.indd 470 12/14/2010 2:56:37 PM 471
SUBMISSIONS
On the basis of the facts and legal arguments presented in its Memorial and
in this Reply, the Applicant respectfully requests the International Court of
Justice to adjudge and declare:
1. That it rejects in its entirety the first submission of the Respondent,
as to the inadmissibility of certain claims raised by the Applicant.
2. That the Respondent is responsible for violations of the Convention
of the Prevention and Punishment of the Crime of Genocide:
(a) in that persons for whose conduct it is responsible committed
genocide on the territory of the Republic of Croatia against members
of the Croat national or ethnical group on that territory, by
• killing members of the group;
• causing deliberate bodily or mental harm to members of the
group;
• deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole
or in part;
• imposing measures intended to prevent births within the
group,
with the intent to destroy that group in whole or in part, contrary to
Article II of the Convention;
(b) in that persons for whose conduct it is responsible conspired to
commit the acts of genocide referred to in paragraph (a), were
complicit in respect of those acts, attempted to commit further such
acts of genocide and incited others to commit such acts, contrary to
Article III of the Convention;
(c) in that, aware that the acts of genocide referred to in paragraph (a)
were being or would be committed, it failed to take any steps to
prevent those acts, contrary to Article I of the Convention;
(d) in that it has failed to bring to trial persons within its jurisdiction who
are suspected on probable grounds of involvement in the acts of
genocide referred to in paragraph (a), or in the other acts referred to
in paragraph (b), and is thus in continuing breach of Articles I and IV
of the Convention.
Volume 12.indd 471 12/14/2010 8:29:46 PM 472
3. That as a consequence of its responsibility for these breaches of the
Convention, the Respondent is under the following obligations:
(a) to take immediate and effective steps to submit to trial before the
appropriate judicial authority, those citizens or other persons within
its jurisdiction who are suspected on probable grounds of having
committed acts of genocide as referred to in paragraph (1)(a), or any
of the other acts referred to in paragraph (1)(b), and to ensure that
those persons, if convicted, are duly punished for their crimes;
(b) to provide forthwith to the Applicant all information within its
possession or control as to the whereabouts of Croatian citizens who
are missing as a result of the genocidal acts for which it is
responsible, and generally to cooperate with the authorities of the
Applicant to jointly ascertain the whereabouts of the said missing
persons or their remains;
(c) forthwith to return to the Applicant any items of cultural property
within its jurisdiction or control which were seized in the course of
the genocidal acts for which it is responsible; and
(d) to make reparation to the Applicant, in its own right and as parens
patriae for its citizens, for all damage and other loss or harm to
person or property or to the economy of Croatia caused by the
foregoing violations of international law, in a sum to be determined
by the Court in a subsequent phase of the proceedings in this case.
The Applicant reserves the right to introduce to the Court a precise
evaluation of the damages caused by the acts for which the
Respondent is held responsible.
4. That, in relation to the counter-claims put forward in the Counter-
Memorial, it rejects in their entirety the fourth, fifth, sixth and seventh
submissions of the Respondent on the grounds that they are not founded in
fact or law.
The Applicant reserves the right to supplement or amend these submissions
as necessary.
Agent of the Republic of Croatia
Zagreb, 15 December 2010
Volume 12.indd 472 12/14/2010 8:29:47 PM 473
CERTIFICATION
I certify that the annexes are true copies of the documents referred to and
that the translations provided are accurate.
Agent of the Republic of Croatia
Zagreb, 15 December 2010
Volume 12.indd 473 12/14/2010 8:29:48 PM 474
Volume 12.indd 474 12/14/2010 8:29:48 PM
volume I