INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING APPLICATION OF THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(CROATIA v. SERBIA)
COUNTER-MEMORIAL
SUBMITTED BY THE REPUBLIC OF SERBIA
Volume I
December 2009
12 TABLE OF CONTENTS
Part I
CHAPTER I
INTRODUCTION
1. The Procedural History ..........................................................11..............................
2. The Real Reasons for the Institution of Proceedings against the FRY .............15
3. Further Developments between the Parties ........................................17................
4. Summary of Issues and Structure of the Counter-Memorial ............................. 19
CHAPTER II
THE CONVENTION ON THE PREVENTION AND PUNISHMENT
OF THE CRIME OF GENOCIDE
1. Introduction ....................................................................23.......................................
2. Genocide Convention in Brief ................................................................................ 24
3. Obligations Imposed by the Convention on the Contracting Parties ................25
4. Mental Element (Mens Rea) .......................................................26..........................
5. Physical Elements (Actus Reus) ..................................................40.........................
6. Other Acts Prohibited by Article III of the Genocide Convention .................... 44
7. Obligation to Prevent and to Punish .............................................53......................
CHAPTER III
QUESTIONS OF PROOF
1. Introduction ....................................................................59.......................................
2. Inadmissibility of the Documentary Materials Presented by the Applicant ..... 63
3. The Respondent’s Approach to the Methods of Proof ...............................71.......
Part II
CHAPTER IV
APPLICABILITY OF THE OBLIGATIONS UNDER THE GENOCIDE
CONVENTION BETWEEN CROATIA AND THE FRY/SERBIA PRIOR
TO 27 APRIL 1992 AND PRIOR TO 8 OCTOBER 1991, RESPECTIVELY
1. Introduction ....................................................................85.......................................
2. Acts and Omissions Preceding 27 April 1992 Cannot Entail
the Responsibility of Serbia in the Present Proceedings .........................87..........
3. In the Alternative, Croatia Cannot Claim Violations of the Genocide
Convention allegedly Committed prior to 8 October 1991 ................................. 128
3 CHAPTER V
THE HISTORICAL AND POLITICAL BACKGROUND
1. Introduction ............................................................................................................. 135
2. The Independent Stateof Croatia and the Genocd ie against Serbs 1941-1945..... 136
3. The Rise of Nationalism in the SFRY ................................................................... 145
4. The Organizing of Serbs in Croatia (1989-1991) ................................................. 162
5. The Armed Conflict in Croatia and Deployment of UNPROFOR .................... 170
CHAPTER VI
PARTICIPANTS IN THE ARMED CONFLICT IN CROATIA 1991-1995
1. Introduction ............................................................................................................. 195
2. Forces of the Government of Croatia .................................................196...............
3. ThNe A ................................................................................................................... 197
4. The Armed Forces of the Serb Autonomous Regions in Croatia/RSK .............. 206
5. Volunteers and Volunteer Units ............................................................................ 215
6. Conclusion ............................................................................................................... 220
CHAPTER VII
RESPONSE TO THE APPLICANT’S ALLEGATIONS CONCERNING CRIMES
COMMITTED AGAINST CROATS
1. Introduction ............................................................................................................. 223
2. Response to the Applicant’s Allegations Concerning Crimes Committed
in Eastern Slavonia ................................................................................................ 224
3. Response to the Applicant’s Allegations Concerning Crimes Committed
in Western Slavonia ................................................................................................ 247
4. Response to the Applicant’s Allegations Concerning Crimes Committed
in Banija ...........................................................................256.....................................
5. Response to the Applicant’s Allegations Concerning Crimes Committed
in Kordun and Lika ..................................................................266...........................
6. Response to the Applicant’s Allegations Concerning Crimes Committed
in Dalmatia .............................................................................................................. 279
7. Conclusion ............................................................................................................... 292
4 CHAPTER VIII
THE CRIME OF GENOCIDE HAS NOT BEEN COMMITTED
AGAINST CROATS
1. The Crimes Were Not Committed with the Genocidal Intent ............................ 293
2. The Crimes of Conspiracy, Incitement, Attempt
and Complicity were not Committed either ......................................................... 311
CHAPTER IX
THE QUESTION OF ATTRIBUTION
1. The Applicable Law ................................................................................................ 317
2. The Principles of Attribution Applied in the Present Case ................................ 318
3. Conclusion ............................................................................................................... 329
4. The Respondent has not Violated Its Obligations to Prevent
and to Punish the Crime of Genocide ................................................................... 330
CHAPTER X
SUBMISSIONS MADE BY THE APPLICANT
1. Introduction ............................................................................................................. 335
2. The Applicant’s General Approach towards the Issue of Reparation ............... 336
3. Alleged Continuing Violations of the Genocide Convention ............................... 338
4. The Submission Concerning the Return of Cultural Property’ .......................... 343
5. Conclusion ................................................................................................................ 346
Part III
CHAPTER XI
JURISDICTION TO AND ADMISSIBILITY OF
SERBIA’S COUNTER-CLAIM
1. Introduction ............................................................................................................. 349
2. Jurisdiction of the Court (Article 80, paragraph 1, of the Rules of Court) ....... 349
3. The Counter-Claim is Directly Connected with the Subject-Matter
of Croatia’s Claim, Both in Law and in Fact ....................................................... 350
5 CHAPTER XII
FACTUAL BACKGROUND:
CROATIA AND THE SERBS IN THE RSK 1992–1995
1. Introduction ............................................................................................................. 353
2. Croatia and the RSK 1992–1995 ............................................................................ 353
3. Conclusion ................................................................................................................ 368
CHAPTER XIII
OPERATION STORM AS THE NEW GENOCIDE AGAINST SERBS IN CROATIA
1. Introduction ............................................................................................................. 373
2. Military Actions Conducted in Preparation of Operation Storm ....................... 375
3. Plan and Preparation for Operation Storm .......................................................... 381
4. Operation Storm ...................................................................................................... 386
5. The Victims of Operation Storm ............................................................................ 396
6. Destruction and Looting of Serbian Property ...................................................... 418
7. After Effects ............................................................................................................. 423
8. Conclusion ............................................................................................................... 433
CHAPTER XIV
THE CRIME OF GENOCIDE HAS BEEN COMMITTED AGAINST SERBS IN
CROATIA BY THE CROATIAN DE JURE ORGANS
1. Introduction ............................................................................................................. 435
2. Serbs in Croatia were Targeted as Members of a National
and Ethnical Group ................................................................................................ 435
3. The Victims of the Operation Storm were a Part of the Protected Group ........ 437
4. Physical Elements of Genocide (Actus Reus) ........................................................ 446
5. Existence of Genocidal Intent to Destroy a Substantial Part of the Group ....... 452
6. Republic of Croatia is Responsible fr othe Genocide Committed against Serbs
in Croatia ................................................................................................................. 463
7. Conclusion: the Croatian Armed Forces Committed Genocide against
Krajina Serbs .......................................................................................................... 465
8. The Applicant’s Responsibility for Conspiracy and Failure
to Punish Genocide ................................................................................................. 466
9. Applicant’s Celebration of Genocide .................................................................... 468
SUBMISSIONS ................................................................................................................. 470
6 List of acronyms
Anbbreviation Fullomments
ABiH Army of the Republic of Bosnia and Bosniak Army involved in the
Herzegovina operation Storm in August 1995
ECMM European Community Monitoring Mission
FRY Federal Republic of Yugoslavia Name of Serbia and Montenegro
between 27 April 1992 and 3
February 2003
HDZ Croatian Democratic Union (Hrvatska Leading political party in Croatia
demokratska zajednica) from 1990 to 2000
HHO Croatian Helsinki Committee for Human Non governmental organization
Rights
HRW Human Rights Watch Non governmental organization
HV Croatian Army (Hrvatska vojska) Army of the Republic of Croatia
(established on 3 November 1991)
HVO Croatian Defence Council (Hrvatsko vijećeArmy of the Herzeg-Bosna
obrane) (Croatian entity in Bosnia and
Herzegovina) involved in the
operation Storm
ICC International Criminal Court
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the
former Yugoslavia
ILC International Law Commission
JNA Yugoslav People’s Army Army of the SFRY (ceased to exist
on 27 April 1992)
MUP Ministry of the Interior (Ministarstvo Police forces of the former
unutrašnjih poslova) Yugoslav Republics
NDH Independent State of Croatia Nazi puppet State (existed from
(Nezavisna Država Hrvatska) 1941 to 1945)
RSK Republika Srpska Krajina Serb entity in Croatia (existed from
19 December 1991 to 5 August
1995)
SAOs Serbian Autonomous Regions (Srpske The 1991 Serb entities in Croatia:
Autonomne Oblasti) SAO Krajina (changed its name into
RSK on 19 December 1991); SAO
Western Slavonia and
SAO Slavonia, Baranja and Western
Sirmium (both joined to RSK on 26
February 1992)
7 SDS Serbian Democratic Party (Srpska Leading political party of the Serbs
demokratska stranka) in Croatia from 1991 to 1995
SFRY Socialist Federal Republic of Yugoslavia Federal State composed of six
Republics: Slovenia, Croatia, Bosnia
and Herzegovina, Serbia,
Montenegro and Macedonia (ceased
to exist on 27 April 1992)
SVK Serbian Army of Krajina (Srpska vojska Army of the Republika Srpska
Krajine) Krajina
TO Territorial Defence (Teritorijalna odbraArmed forces organized on the
territorial basis
UNHCR United Nations High Commissioner for
Refugees
UNMO United Nations Military Observers
UNPA United Nations Protected Area Safe heaven in Croatia under the
protection of UNPROFOR
UNCRO United Nations Confidence Restoration United Nations administration
Operation (replaced UNPROFOR on 31 March
1995)
UNPROFOR United Nations Protection Force Peace-keeping force in Croatia and
Bosnia and Herzegovina from 1991
to 1995
VJ Yugoslav Army (Vojska Jugoslavije) Army of the Federal Republic of
Yugoslavia
ZNG National Guard Corps (Zbor narodne garde)HDZ militia
8PART I
910 CHAPTER I
INTRODUCTION
1. The Procedural History
1. On 2 July 1999, the Government of the Republic of Croatia (hereinafter “the Applicant”
or “Croatia”) filed an Application instituting proceedings against the Federal Republic
of Yugoslavia (hereinafter “the Respondent” or “the FRY”) in respect of a dispute
concerning alleged violations of the Conve ntion on the Prevention and Punishment of
the Crime of Genocide, approved by the General Assembly of the United Nations on 9
December 1948 (hereinafter “the Genocide Convention”).
2. In its Application, Croatia requested the International Co urt of Justice to adjudge and
declare as follows:
“(a) that the Federal Republic of Yugoslavia has breached its legal
obligations toward the people and Republic of Croatia under Articles I,
II(a), II(b), II(c), II(d), III(a), III(b), III(c), III(d), III(e), IV and V of the
Genocide Convention;
(b) that the Federal Repub lic of Yugoslavia has an obligation to pay to
the Republic of Croatia, in its own right and as parens patriae for its
citizens, reparations for damages to persons and property, as well as to
the Croatian economy and environment caused by the foregoing
violations of international law in a sum to be determined by the Court.” 1
3. By its Order dated 14 September 1999, the Court fixed 14 March 2000 as the time-limit
for the filing of the Memorial of Croatia and 14 September 2000 as the time-limit for
the filing of the Counter-Memorial of the FRY.
1
Application instituting proceedings, para. 36.
114. However, the Applicant requested the Court toextend the fixed time-limit for the filing of
the Memorial twice (firs tly, by its letter dated24 February 2000, andfor the second time, by
its letter dated 26 May 2000).In both cases, the Respondentdid not oppose the request of
the Applicant. Thus, the Courtdecided to allow theCroatian requests, for the first time by
its Order dated 10 March 2000, and for the second time by its Order dated 27 June 2000.
The time-limits were extendedto 14 March 2001 and 16 September 2002, respectively, for
the filing of the Memorialof Croatia andthe Counter-Memoria l of the FRY.
5. The Applicant filed its Memorial in the extended time-limit, presenting the following
submissions:
“1. That the Respondent, the Fede ral Republic of Yugoslavia, is
responsible for violations of th e Convention on 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 Croati a, including in particular against
members of the Croat national oe rthnical 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 co nduct 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;
12(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.
2. That as a consequence of its resp onsibility for these breaches of the
Convention, the Respondent, the Federal Republic of Yugoslavia,
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 ar e suspected on probable grounds of having
committed acts of genocide as referred to in paragraph (1) (a), or
any of the other acts refe rred to in paragraph (1) (b), in particular
Slobodan Milošević, the former president of the Federal Republic
of Yugoslavia, 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 coopera te with the authorities of the
Republic of Croatia 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
13 (d) to make reparation to the A pplicant, 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
2
by the Court in a subsequent phase of the proceedings in this case.”
6. On 11 September 2002, within the time-limit provided for in Article 79, paragraph 1, of
the Rules of Court, as adopted on 14 Apr il 1978, the FRY raised preliminary objections
relating to the Court’s jurisdiction to entert ain the case and to the admissibility of the
Application. Accordingly, by an Order of 14 November 2002, the Court stated that the
proceedings on the merits weresuspended, and fixed a new time-limit for the presentation
by Croatia of a written statement of its obser vations and submissions on the preliminary
objections raised by the FRY.Croatia filed such a statementon 29 April 2003, in which it
requested the Court to reject all preliminary objections of the FRY (with the exception of
the claim concerning the submission to trial of Slobodan Milošević, former President of
the FRY, who had been transferred to the International Criminal Tribunal for the former
Yugoslavia by the Serbian authorities on 29 June 2001).
7. In the meantime, by a letter dated 5 Februa ry 2003, the Respondent informed the Court
that, following the adoption and promulgation of the Constitutional Charter of Serbia
and Montenegro by the Assembly of the FRY on 4 February 2003, the name of the State
had been changed from the “Federal Re public of Yugoslavia” to “Serbia and
Montenegro”.
8. By a letter dated 3 Ju ne 2006, the President of the Republic of Serbia Mr. Boris Tadi ć
informed the Secretary-General of the United Nations that, following the declaration of
independence adopted by the National Assemb ly of the Republic of Montenegro, “the
membership of the state unionSerbia and Montenegro in theUnited Nations,including all
organs and organizations of the United Nations system, [would be] continued by the
3
Republic of Serbia, on the ba sis of the Constitutional Charter of Serbia and Montenegro.”
2Memorial, Submissions, pp. 413-414.
3ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118,
para. 23.
149. Public hearings on the prelimin ary objections were held from 26 May to 30 May 2008. By
its Judgment of 18 November 2008, the Court: 1) rejected the first preliminary objection
submitted by the Respondent “in so far as it [related] to its capacity to participate in the
proceedings” instituted by the Applicant; 2) rejected the same preliminary objection “in so
far as it [related] to the jurisdictionratione materiaeof the Court” under Article IX of the
Genocide Convention; 3) found that, subj ect to the following point, the Court had
jurisdiction to entertain the Application in this case; 4) found that the second preliminary
objection concerning the jurisdiction of the Court and the admissibility of the claims,
ratione temporis, did not, in the circumstances of the case, possess an exclusively
preliminary character, and 5) rejected the third preliminary objectionsubmitted by the
Respondent concerning the submission of certain persons to trial, the provision of
information on missing Croatian citizens, ad nthe returnof cultural property.
10. In the same Judgment, the Court, taking into account the views of the Parties and the
fact that the Republic of Se rbia had accepted continuity between the State union Serbia
and Montenegro and itself, concluded that the Republic of Serbia remained the sole
Respondent in this case (para. 34).
11. By an Order of 20 Januar y 2009, the Court fixed 22 Ma rch 2010 as the time-limit for
the filing of the Counter-Memorial of the Republic of Serbia (hereinafter “the
Respondent” or “Serbia”). Within the fixed time-limit, the Respondent duly submits this
Counter-Memorial.
2. The Real Reasons for the Institution of Proceedings against the FRY
12. The Application of Croatia is related to crimes committed during the armed conflict in its
territory from 1991 to 1995. The allegation s against the FRY G overnment are of
exceptional gravity: the Application, and particularly the Memorial, contains assertions on
almost all possible violations of the Genoci de Convention. It is well-established in
international law that genocide is “a denial of the right of existence of entire human
4
groups”, which “shocks the co nscience of the mankind”. From that pointof view, it is not
expected that a State which seeks to representvictims of genocide need to provide reasons
4
General Assembly resolution 96(I).
15 for instituting proceedings agai nst another State that is al leged to be responsible for
violations of the Genocide Convention. However, the authos r of the Memorial have tried to
do just that – to explain whythe Croatian Government decidedto file the Application and,
more importantly, to justify the fact that theApplication was producedso late, almost four
years after the end ofthe conflict and the alled perpetration of genocide.
13. In its Memorial (para. 1.07), the Applican t pointed out that the reasons for the
institution of the proceedings against the FRY in 1999 was due to the fact that the
International Criminal Tribunal for the form er Yugoslavia (hereinafter “ICTY”) failed
to issue any indictment “against those pe rsons most responsib le for genocide in
Croatia”. This explanation has never been accepted by the Respondent; rather, the
reason why the contentious proceedings before the International Court of Justice were
instituted so late by Croatia is the international position of the Respondent State at the
time of the filing of the Application.
14. The Croatian Application was submitted on 2 July 1999, shortly after the NATO
bombing of the FRY. Having in mind the evid ently rushed nature of the Applicant’s
initial submission, it can easily be concluded that a decision to take legal action must
have been taken during that bombing, whic h took place from March to June 1999.
During this period President Milošević’s rule in the FRY reached its lowest point. The
country was completely isolated, its economy destroyed; the number of victims of the
NATO bombing increased every day, while th e conflict, characterized by serious war
crimes in the Serbian Province of Kosovo a nd Metohija, culminate d. In international
relations, the FRY regime was almost completely cut-off. For Croatian leaders, this was
a good moment for an attempt to reach a solution on the Serbian question in Croatia: the
conflict was to end in a legal victory before the principle judicial organ of the United
Nations, where the Serbs and their State leadership were to be collectively “convicted”
for genocide, the most serious crime in th e contemporary world. National history could
thus be re-written: the genocide committed in the Independent State of Croatia against
the Serbs, Jews and Roma during World War II could be forgotten, or at least, could be
equated to the genocide purportedly committed against Croatians. Moreover, the
justified requests of the Serbs from Croatia to be allowed to return to their homes and
land could be more easily dealt with by the Croatian authorities once the decision on the
collective Serbian responsibility for the crime of genocide was rendered.
163. Further Developments between the Parties
15. Although diplomatic relations between Croati a and Serbia were normalized in August
5
1996, a genuine cooperation began in 2000, follow ing the democratic changes in both
States. The positive developments were registered in bilateral economic relations, in
political dialogue on the highest level, and par ticularly in some fields of joint interest
directed to the restoration of mutual conf idence, such as the cooperation between the
6 7
war crime prosecutors , between commissions for missing persons and through Joint
8
Commission for Restitution of Cultural Heritage.
16. During his visit of Croatia in 2007, Serbian President Boris Tadi ć, gave the following
public statement:
„I am addressing apologies to all c itizens of Croatia, and to everybody
belonging to the Croatian nation on whom persons belonging to my
9
nation inflicted misfortune...“
17. Nevertheles, continuing the litigation before the International Court of Justice under the
provisions of the Genocide Convention, the Cr oatian Government has kept the biggest
obstacle to further improvement of the rela tions with Serbia, although it is fully aware
that its case is not based in law. In spite of some indications that the Croatian
Government could decide to negotiate with the Serbian authorities about the withdrawal
of its Application, no formal proposal has ever been made.
5Agreement on Normalization of Relations, Memorial, Annexes, Vol. 4, annex 12.
6The last Conference on the improvement of the cooperation among the war crimes prosecutors from the former
Yugoslavia, supported by the ICTY, OSCE a nd EC, was held in Bruxelles in April 2009, http://www.sarajevo-
7.com/svijet/clanak/090403113.
This issue was regulated between Croatia and Serbia by the 1995 Agreement on Cooperation in Tracing
Missing Persons and by the 1996 Protocol on Cooperation between the Commission of the Government of the
Federal Republic of Yugoslavia for Humanitarian Issues and Missing Persons and the Commission of the
Government of the Republic of Croatia for Imprisoned and Missing Persons, see Annex 53 to the Preliminary
Objections, p. 367.
8The Joint Commission was established in 2003 in accordance with the Agreement on Co-operation in the Field
of Culture and Education, Narodne novine, Medjunarodni ugovori [Official Gazette, International Treaties], no.
5/2002 & Sluzbeni list SRJ – Medjunarodni ugovori [Official Gazette of the FRY – International Treaties], no.
92/2002.
See B92 News, “Tadić appologies to Croatian citizens“, 24 June 2007, available at:
http://www.b92.net/info/vesti/index.php?yyyy=2007&mm=06&dd=24&nav_id=25…
1718. In the meantime, the ICTY has nearly comple ted its work. It has become evident that
what happened in Croatia in 1990’s cannot be reduc ed to a simple picture with one
perpetrator and one victim. Information from many independent sources has also
become known, enlightening the complex realit y of the armed conflict in Croatia and a
nature of crimes committed there. Contrary to the attempts of the Croatian authorities to
hide the truth about the Operation Storm, its plan, specific intent and criminal
consequences have become known.
19. Moreover, the Croatian Government has c ontinued preserving the outcome of the 1995
operations Flash and Storm. According to the UNHCR, 9 6,739 refugees still live in
Serbia today, out of whom 73% are Serbs from Croatia. 10 Their return home have been
rendered difficult due to insufficient assuran ces given by the Croati an authorities with
regard to the security of returnees, freque nt incidents occurring in the territory of
Croatia targeting Serbian nationals, including the existence of secret indictments for war
crimes. Numerous administrative barriers still exist in regard to re storation of tenancy
rights of the Serb refugees.
20. Under these unfortunate conditions, the Serbian Government did not have any other
choice but to respond to the Croatian Memori al in merits, including the submissions of
counter-claims established under the same factual and legal grounds. The Respondent
argues that if the Court is inclined to accept the claim by Croatia that genocide took
place in the armed conflict in its territory, the clearest and the most convincing case of
genocide was actually the operation Storm. Such a conclusion is easier by having in
mind the starting position of the Applicant in this case that the evacuation of “Croatian
citizens of Serb ethnicity in the Knin region” [Republika Srpska Krajina] amounted to
“a second round of ‘ethnic cleansing’,in violation of the Genocide Convention”[emphasis
11
added].
21. There is no doubt that this case will contribute to the prom otion of the respect for all
victims whatever is their ethnic origin, as well as for their right that crimes committed
in Croatian civil war must not be forgotte n. At the same time, this case before the
10See UNHCR, Refugees, Table established on 10 June 2009, available at:
http://www.unhcr.org/pages/4a0174156.htm; see also Commission of the European Communities, Croatia 2009
Progress Report, SEC(2009) 1333 dated 14 October 2009, pp.15-16 (Annex 65).
11Application instituting proceedings, para. 2.
18 principal judicial organ of the United Nations will surely further improve the practice of
the application of the Genocide Convention, one of the main instrument of humanitarian
law in the contemporary World.
4. Summary of Issues and Structure of the Counter-Memorial
22. This Counter-Memorial is divided into three parts. Part I de als with those issues which
are related both to the response to the Applicant’s allegations and to the counter-claims.
Accordingly, Part II deals exclusively with the response to the A pplicant’s factual and
legal allegations, while Part III establishe s factual and legal grounds for the counter-
claims.
23. Following this introductory Chapter, Part I continues with a review of the interpretation
of the relevant provisions of the Genocide Convention, as the applicable law in this case
(Chapter II). That Chapter will be based mainly on the findings of the Court in the 2007
Judgment in the Case Concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocid e (Bosnia and Herzegovina v. Serbia and
Montenegro), although the legal findings of the inte rnational criminal tribunals for the
Former Yugoslavia and Rwanda will also be discussed, as well as other relevant
documents, such as the International Law Co mmission’s Draft Code of Crimes against
the Peace and Security of Mankind and the Elements of Crimes of the International
Criminal Court.
24. Chapter III will discuss the re levant questions of proof and provide the Respondent’s
approach to the applicable methods of pr oof in the case which includes the State
responsibility of exceptional gravity. In the same Chapter, the Respondent will address
the Applicant’s approach to the eviden ce showing that documentary materials
presented in support of the Memorial are eith er irrelevant or unre liable (for instance,
322 copies of the witness statements in Cr oatian were not signed by the persons who
allegedly gave those statements, while ma ny other shortcomings of the evidentiary
materials are also noted). The Respondent submits that the documents presented by the
Applicant are inadmissible in the case before any reasonable court, and even less in the
international litigation concerning the crime of genocide.
19 25. Part II begins with a general and prelimin ary question of the admissibility of the
Applicant’s claims related to the events that occured before 27 April 1992 (Chapter
IV). The Respondent submits that acts and omissions that took place before 27 April
1992, whatever their legal characterization, ca nnot entail the respons ibility of Serbia,
because the FRY/Serbia, only came into existe nce on that date. In the alternative, the
Respondent submits that, in any event, act s and omissions prior to 8 October 1991
cannot be used to establish Serbia’s re sponsibility for breaches of the Genocide
Convention, as Croatia itself only came into existence – and became bound by the
Genocide Convention – on 8 October 1991.
26. The analysis of the misleading and inaccurate assertions of the Memorial concerning
the historical and political background is given in Chapter V. The Respondent will
present historical facts which can assist the Cour t to fully understand political events
and the origin of the 1990s’ armed conflict in Croatia. In Chapter VI, the Respondent
will give an overview of all participants in the Croatian civil war and their relations
with the Respondent State. It will be proved that the Yugoslav People’s Army
(hereinafter “the JNA”) was not under the control of the Serbian leadership in 1990
and 1991 and that it acted as de jure organ of the SFRY and operated as such, under
political direction of the SFRY Presidenc y. The Respondent will also show that the
Applicant’s claims that the forces of th e Serb autonomous regions in Croatia were
“controlled” by the Federal State or by the FR Yugoslavia/Serbia are not supported by
evidence.
27. Chapter VII gives direct response to the A pplicant’s factual allegations concerning the
crimes, on the area by area basis, following the order of presen tation set out by the
Applicant’s Memorial. The Respondent conc ludes that, even if the documentary
materials submitted by the Applicant are treated as relevant and reliable ( quod non),
they, firstly, do not prove that many of the crimes alleged by the Applicant have taken
place and, secondly, they in any case canno t establish the existence of the legal
elements of the crime of genocide. Chap ter VIII comes to the same conclusion
following the general overview of the events in Croatia and a careful legal analysis of
the claims of the Applicant in support of the alleged existence of the genocidal intent.
2028. Chapter IX demonstrates that crimes committed against Croats from 1991 to 1995,
whatever their legal characterization, cannot be attributable to the Respondent State,
while Chapter X deals with certain specific requests of the Applicant’s Submissions.
29. Part III of the Counter-Memorial begins with the procedural grounds for the
submission of the counter-claims (Chapter XI ). Chapter XII describes the attacks on
the UN protected zones and crimes committed by the Croatian armed forces against
the Serb population. It will be proved th at this criminal acts committed by the
Applicant were an introduction to the final solution of the Serbian question in Croatia
through the operation Storm in August 1995. Chapter XIII gi ves a detailed review of
the facts concerning the crimes committed against Serbs during and after the operation
Storm. Finally, Chapter XIV contains the legal analysis which convincingly
demonstrates that the criminal acts committed against a substantial and significant part
of the Serbian national group in Croatia amounts to genocide.
30. In addition to the text of the Counter-M emorial (Volume I), the Respondent State
submits to the Court four volumes of evid ence and other relevant documents. Volume
II is composed of historical sources and contemporary literature related to the
historical background and the 1990s’ Croatian historical revisionism as one of the
important causes of the armed conflict in the former Yugoslavia. Volume III contains
other relevant documents referred to by the Respondent, such as legislative decisions
of the Republika Srpska Krajina; releva nt SFRY documents which demonstrate that
the SFRY was a functioning State till the e nd of 1991, and documents related to the
systematic and widespread crimes perpetrate d against Serbs in Croatia from the very
beginning of the civil war in 1991 until the operation Flash in spring 1995. Volume IV
consists of the evidence on the crimes committed during and after the operation Storm
and contains evidence that originated from neutral international and non-governmental
bodies and the production of which is fully in accordance with the previous practice of
the International Court of Justice in similar cases. Volume V contains list of all known
Serbs from Croatia that were killed or went missing in the Croatian civil war, in total
more than 6,000 victims.
2122 CHAPTER II
THE CONVENTION ON THE PREVENTION AND PUNISHMENT
OF THE CRIME OF GENOCIDE
1. Introduction
31. The present case concerns the application of the Convention on the Prevention and
Punishment of the Crime of Genocide (hereina fter “the Genocide Convention”). As the
Applicant noted in para. 7.04 of its Memorial , the present case is not concerned with
such issues as aggression, the right to use for ce, violations of the laws of war or crimes
against humanity. The Respondent, however, ag rees with the Applicant that many acts
which are prohibited by the Genocide Convention also involve breaches of international
human rights and international humanitarian law and that a cer tain act can be qualified
as either genocide or a crime against human ity or a violation ofthe laws of war,
depending of whether that act was accompan ied by the required specific genocidal
intent. In Chapter VIII of this Counter-Memorial, the Respondent will show that the acts
committed during the conflict in Croatia agai nst Croats did not reach the threshold
necessary to be considered as genocide , while in Chapter XIV the Respondent will
show that the acts committed against Serbs by the Croatian Government did constitute
genocide within the meaning of the Genocide Convention.
32. In this Chapter the Respondent will deal with the general issues concerning the
application of the Genocide Convention, such as the scope of the convention, mental
and physical elements of the crime of genocid e, other acts prohibite d by Article III of
the Convention and obligation to prevent and to punish genocide. In doing so, the
Respondent will base itself mainly on the findings of the Court in the 2007 Judgment in
the Case Concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro). The Respondent considers this judgme nt to be of paramount importance
to the present case, since the Court in the Bosnia case dealt with most of the issues
which are now raised by both parties to the pr esent dispute. In matters which were not
dealt with by the Court in the Bosnia case, or only to a minor degree, the Respondent
will base itself mainly on the legal findings of the international criminal tribunals for the
23 Former Yugoslavia and Rwanda – the two tribunals which have, over the past 15 years,
issued many judgments which concern differe nt questions relate d to the crime of
genocide and whose work was c onsidered by the Court to be of particular relevance in
the Bosnia case. The Respondent will also rely on ot her relevant materials, such as the
International Law Commission’s (ILC) Draft Code of Crimes against the Peace and
Security of Mankind and the International Criminal Court’s (ICC) Elements of Crimes.
2. Genocide Convention in Brief
33. The Genocide Convention is one of the most important conventions adopted in the
history of mankind. It was adopted shortly after World War II and its adoption was
prompted by the terrible atrocities committed during World War II – atrocities in which
the Independent State of Croatia, a Nazi puppet state formed during that war, played an
important part.12
34. The preamble to the Convention refersto UN General Assembly Resolution 96(I) of 11
December 1946, which declares genocide to be a crime under international law, and
recognizes that at all periods of history genocide has inflicted greatlosses to humanity. In
Article I, the Contracting Parties confirm th at genocide, whether committed in time of
peace or in time of war, is a crime under international law and undertake to prevent and
punish that crime. Article II defines genoci de and sets out its mental and physical
element, while Article III provides the offences which will be punishable in accordance
with the Convention – genocide, conspiracy to commit genocide, direct and public
incitement to commit genocide, attempt tocommit genocide and complicity in genocide.
35. Article IV provides that persons committing any of the acts enumerated in Article III
shall be punished, whether they are constituti onally responsible rulers, public officials
or private individuals. Article V establishes the obligation of the Contracting Parties to
enact the necessary legislati on to give effect to the C onvention and provide effective
penalties for persons guilty of genocide or ot her acts enumerated in Article III. Article
VI provides that persons charged with any of the acts enumerat ed in Article III shall be
tried by a competent tribunal of the State in the territory of which the act was committed
12
See infra, Chapter V, paras. 397-420.
24 or by such international penal tribunal as may have jurisdiction with respect to those
Contracting Parties which shall have accepted its jurisdiction. Article VII provides that
any of the acts enumerated in Article III shal l not be considered as political crimes for
the purposes of extradition and places an oblig ation on the Contracting Parties to grant
extradition in such cases, in accordance with their laws and treaties in force.
36. Article VIII gives the Contracting Pa rties a possibility to call upon the competent
organs of the UN to take such action under the Charter of the United Nations as they
consider appropriate for the prevention and suppression of acts of genocide or any of the
other acts enumerated in Article III. Arti cle IX provides that disputes between the
Contracting Parties relating to the interp retation, application or fulfillment of the
Convention, including those relating to the responsibility of a State for genocide or any
of the acts enumerated in Article III, shall be submitted to the Court at the request of
any of the parties to the disput e. It is thus based on this article that both the Applicant
and the Respondent have brough t their claims before the Court in the present case.
Articles X-XIX of the Convention contain final clauses.
3. Obligations Imposed by the Convention on the Contracting Parties
37. The Genocide Convention, in the way it wa s drafted and adopted, sets up quite clearly
the obligation of States to prevent and to punish genocide or any other act enumerated
in Article III, but remains silent whether States are also under an obligation, by virtue of
the Convention, not to commit genocide th emselves. As the Court noted in the Bosnia
case: “It must be observed at the outset that such an obligation is not expressly imposed
13
by the actual terms of the Convention”.
38. This, accordingly, left open avenues for va rious interpretations of the Convention and,
in the Bosnia case, the Respondent argued extens ively, both in the preliminary
objections and the merits phase, that the Convention does not provide for the
responsibility of States for acts of genoc ide as such. This position was not, however,
accepted by the Court. In order to reach it s findings, the Court undertook a thorough
13
ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List No.
91, para. 166.
25 analysis of the travaux préparatoires and other sources and ultimately, taking as a basis
the undisputed obligation of States to prevent genocide, reached the conclusion that “the
Contracting Parties are bound by the obligat ion under the Convention not to commit,
through their organs or persons or groups whose conduct is attr ibutable to them,
14
genocide and the other acts enumerated in Article III.”
39. Although this conclusion was not reached with unanimity, 15 the Respondent accepts it
fully and will, accordingly, proceeds in th is Counter-Memorial on the basis that the
Genocide Convention imposes on States the following obligations:
a) not to commit genocide or any of the other acts enumerated in
Article III of the Convention;
b) to prevent genocide;
c) to punish genocide.
4. Mental Element (Mens Rea)
A. The Nature of the Required Intent
40. Article II of the Genocide Convention defines genocide in the following way:
“In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
14Ibid., para. 179.
15Ibid., Joint declaration of Judges Shi and Koroma, Separate opinion of Judge Tomka, Declaration of Judge
Skotnikov, Separate opinion of Judge ad hoc Kreća, and also Separate opinion of Judge Owada (who reached the
same conclusion as the majority but for different reasons).
2641. As noted by the Court in the Bosnia case, it is well established that any of the acts listed
in Article II of the Conven tion includes a mental element. Mental elements are made
explicit in paragraphs (c) and (d), but acts prohibited by paragraphs (a), (b) and (e) also
must be intentional. 16In the words of the International Law Commission (referred to
also by the Court): “The prohibited acts enumerated in subparagraphs (a) to (e) are by
their very nature conscious, in tentional or volitional acts which an individual could not
17
usually commit without knowing that certain consequences were likely to result.”
42. However, the existence of this “simple” intent to commit any of the acts enumerated in
subparagraphs (a) to (e) is not enough for genocide to be established. The definition of
genocide requires the establishment of a further, specific intent ( dolus specialis) to
destroy a protected group as such, in whole or in part. Therefore, it is not enough to
establish that, for example, deliberate unlaw ful killings of members of the group have
occurred – it is essential that, in addition, genocidal intent is also established. Moreover,
this means that it is not e nough to simply establish that members of a protected group
were targeted just because they belong to that group, in which case the perpetrator had a
discriminatory intent. The acts listed in Article II must be committed with intent to
destroy the group as such in whole or in part. 18
43. This specific intent distinguishes genocide from other similar crimes, in particular
crimes against humanity, such as persecution and extermination. In order to illustrate
the difference between genocide and persecution, in the Judgment in the Bosnia case the
Court quoted the following passage from the j udgment of a Trial Chamber of the ICTY
in the Kupreškić et al. case:
“the mens rea requirement for persecution is higher than for ordinary
crimes against humanity, although lo wer than for genocide. In this
context the Trial Chamber wishes to stress that persecution as a crime
against humanity is an offence belonging to the same genus as genocide.
16See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List No.
91, para. 186.
17Commentary on Article 17 of the Draft Code of Crimes against the Peace and Security of Mankind, Yearbook
of the International Law Commission, 1996,Vol. II, Part Two, p. 44, para. 5.
18See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List No.
91, para. 187.
27 Both persecution and genocide are crimes perpetrated against persons
that belong to a particular group an d who are targeted because of such
belonging. In both categories what matters is the intent to discriminate: to
attack persons on account of thei r ethnic, racial , or religious
characteristic (as well as, in the cas e of persecution, on account of their
political affiliation). While in the case of persecution the discriminatory
intent can take multifarious inhuman e forms and manifest itself in a
plurality of actions including murder, in the case of genocide that intent
must be accompanied by the intention to destroy, in whole or in part, the
group to which the victims of the genocide belong. Thus, it can be said
that, from the view point of mens rea, genocide is an extreme and most
inhuman form of persecution. To put it differently, when persecution
escalates to the extreme form of willful and deliberate acts designed to
destroy a group or part of a group, it can be held that such persecution
19
amount to genocide.”
44. Another crime similar to genocide is th e crime of extermination (as suggested also by
its ominous name). In the words of the ILC:
“Extermination 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 c overed by the crime of genocide.
Extermination covers situations in which a group of individuals who do
not share any common characteristic are killed. It al so applies to
situations in which some members of a group are killed while others are
spared.” 20
19ICTY, Kupreškić et al., IT-95-16-T, Trial Chamber Judgment, 14 January 2000, para. 636.
20Commentary on Article 18 of the Draft Code of Crimes against the Peace and Security of Mankind, Yearbook
of the International Law Commission, 1996,Vol. II, Part Two, p. 48, para. 8.
28 To this effect, a Trial Chamber of the ICTY in the Vasiljević case concluded:
“This Trial Chamber concludes from th e material which it has reviewed
that criminal responsibility for ‘extermination’ only attaches to those
individuals responsible fo r a large number of deat hs, even if their part
therein was remote or indirect. Res ponsibility 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 individu als. However, contrary to genocide
the offender need not have intended to destroy the group or part of the
21
group to which the victims belong.”
45. It follows thus that the mere existen ce of the acts enumerated in Article II of the
Genocide Convention is not enough to estab lish genocide and only if those acts are
committed with the intent to destroy the group as such, in whole or in part, can genocide
be established.
B. Proving Genocidal Intent
46. In para. 7.28 of its Memorial the Applicant stated: “To prove genocide it is necessary to
show that one or more of the acts listed in Article II of the Convention were carried out
with “intent to destroy, in whole or in part, a national, ethnical, racial or religious group,
as such.” The Respondent fully agrees with this contention. However, the Respondent is
unable to agree with the method and, in part icular, the standard of proof which is
subsequently proposed by the Applicant for proving genocidal intent.
47. According to the Applicant:
“[i]t is unlikely that any State woul d formally adopt and then publicise
any plan or other scheme of orga nisation 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
21
ICTY, Vasiljević, IT-98-32-T, Trial Chamber Judgment, 29 November 2002, para. 227.
29 within its jurisdiction or control. Bu t in the absence of documentary or
other material which explicitly ev idences a genocidal intent, it is
permissible for the specific intent to be ascertained by inference, in
particular from a relatively consistent pattern of behaviour involving the
prohibited acts and targeted at a protected group.” 22
48. While the Respondent can agree that the existence of a plan or policy to commit
genocide is not a formal element of the crim e of genocide and that it is indeed quite
unlikely that the perpetrators of genocide would leave evidence of such a plan or policy
behind, it is even more unlikely that the crim e of genocide, taking into consideration its
scope and gravity, could be committed if it was not planned, or the result of the policy
of a State or some other organized group. To this effect, the International Criminal
Tribunal for Rwanda (hereinafter “the ICTR”) concluded: “[a]lthough a specific plan to
destroy does not constitute an element of genocide, it would appear that it is not easy to
carry out a genocide without a plan, or organisation.” 23Furthermore, it was said that
“the existence of such a plan would be strong evidence of the specific intent
24
requirement for the crime of genocide”. This view of a Trial Chamber of the ICTR
was echoed by the Appeals Chamber of the ICTY in the Jelisić case:
“The Appeals Chamber is of the opini on that the existence of a plan or
policy is not a legal ingredient of the crime. However, in the context of
proving specific intent, the existence of a plan or policy may become an
important factor in most cases. The ev idence may be consistent with the
existence of a plan or policy, or may even show such existence, and the
existence of a plan or policy may facilitate proof of the crime.” 25
49. In the present case, as will be demonstr ated in more detail later in this Counter-
Memorial, the Applicant has not offered any proof which would even remotely point to
a plan to commit genocide against Croats. On the other hand, the Respondent will show
that the plan to destroy part of the Serb ian population in Croatia was designed by the
highest officials of the Applicant and will offer proof of the existence of that plan.
22Memorial, p. 339, para. 7.33.
23ICTR, Kayishema and Ruzindana, ICTR-95-1-T, Judgment and Sentence, 21 May 1999, para. 94.
24Ibid., para. 276.
25ICTY, Jelisić, IT-95-10-A, Appeals Chamber Judgment, 5 July 2001, para. 48.
3050. Mindful of the lack of any credible proof of the existence of the genocidal intent or of a
plan to commit genocide against Croats, the Applicant requests the Court to establish
genocidal intent by drawing inferences fr om “a relatively consistent pattern of
behaviour involving the prohi bited acts and targeted at a protected group”. This
contention was expressed even more specifica lly in para. 8.16 of the Memorial, where
the Applicant claimed the following:
“While individual acts committed in the course of the campaign might –
considered in isolation – have been explained as “common crimes” or as
“excesses” committed in the course of a conflict, all of these factors
taken together point to the inevit able conclusion that there was a
systematic policy of targeting Croats with a view to their elimination
from the regions concerned. This es tablishes quite clearly the required
element of a specific intent to dest roy a protected group in whole or in
part.”26
51. The claim that a plurality of “common crimes”, taken together, may constitute genocide
is refuted by legal findings of both the ICTY and of the Internationa l Court of Justice.
Thus, the ICTY Trial Chamber in the Stakić case stated:
“The Trial Chamber has reviewed its factual findings … and a
comprehensive pattern of atrociti es against Muslims in Prijedor
municipality in 1992 emerges that has been proved beyond reasonable
doubt. However, in order to prove Dr. Staki ć’s involvement in the
commission of these acts as a co-p erpetrator of genocide, the Trial
Chamber must be satisfied that he ha d 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.” 27
And the Trial Chamber went on to acquit Milomir Stakić of genocide.
26
27Memorial, pp. 385-386, para. 8.16; see also Memorial, pp. 372-373, para. 8.03.
ICTY, Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 546.
3152. Similarly, in the Brđanin case, the ICTY found:
“While the general and widespread nature of 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
28
the specific intent required for the crime of genocide is satisfied.”
RadoB sav đanin was also acquitted of genocide.
53. Finally, and most importantly, the Court in the Bosnia case concluded:
“Turning now to the Applicant’s conten tion that the very pattern of the
atrocities committed over many co mmunities, over a lengthy period,
focused on Bosnian Muslims and also Croats, demonstrates the necessary
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
to be convincingly shown by refere nce 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 su ch that it could only point to the
existence of such intent.” 29
54. The Applicant’s contention that the plurality of “common crimes” can constitute
genocide is also refuted by the practice of the ICTY, which has indicted, tried and
sentenced the highest former officials of both Serbia and the RSK, but none of them for
genocide. This will be further elaborated in Chapter VIII.
C. Intent and “Ethnic Cleansing”
55. Another point which concerns genocidal intent and the methods by which it must be
proved relates to “ethnic cleansing”. The App licant seems to be quite aware that the
28ICTY, Brđanin, IT-99-36-T, Trial Chamber Judgment, 1 September 2004, para. 984.
29ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List No.
91, para. 373.
32 crimes committed in Croatia fall short of genocide and accepts that: “The Serbian
military campaign on Croatian territory has been characterized as ‘ethnic cleansing’.” 30
The Applicant nevertheless goes on to claim:
“But where, as here, the ‘ethnic cleans ing’ of an entire region is carried
out as part of coordinated strate gy involving killing of non-combatants
and the infliction of torture and brutality on a large scale, solely on
account of the victims’ ethnic origin, w ith the plain object and effect of
destroying that part of the local pop ulation which has a particular ethnic
31
origin, the crime of genocide is established.”
56. The contention that “ethnic cleansing” is a form of genocide is not new and it was
discussed by both the Court and the ICTY. The conclusions reached, however, do not
support the Applicant’s claims. Accordingly, in the Bosnia case, the Court concluded:
“It will be convenient at this point to consider what legal significance the
expression [‘ethnic cleans ing’] may have. It is in practice used, by
reference to a specific region or area, to mean ‘rendering an area
ethnically homogeneous by using force or intimidation to remove persons
of given groups from the area’ (S/35374 (1993), para. 55, Interim Report
by the Commission of Experts). It does not appear in the Genocide
Convention; indeed, a proposal during the drafting of the Convention to
include in the definition ‘measures intended to oblige members of a
group to abandon their homes in order to escape the threat of subsequent
ill-treatment’ was not a ccepted (A/C.6/234). It can only be a form of
genocide within the meaning of the Convention, if it corresponds to or
falls within one of the categories of acts prohibited by Article II of the
Convention. Neither the intent, as a matter of policy, to render an area
‘ethnically homogeneous’, nor the oper ations that may be carried out to
implement such policy, can as such be designated as genocide: the intent
that characterizes genocide is ‘to destroy, in whole or in part’ a particular
group, and deportation or displacement of the members of a group, even
30Memorial, p. 376, para. 8.09.
31Ibid., pp. 376-377, para. 8.09; see also pp. 329-330, para. 7.12, pp. 332-333, para. 7.18.
33 if effected by force, is not necessarily equivalent to destruction of that
group, nor is such destruction an automatic consequence of the
displacement. This is not to say that acts described as ‘ethnic cleansing’
may never constitute genocide, if they are such as to be characterized as,
for example, ‘deliberately inflicti ng on the group conditions of life
calculated to bring about its physical destruction in whole or in part’,
contrary to Article II, paragraph (c), of the Convention, provided such
action is carried out with th e necessary specific intent (dolus specialis),
that is to say with a view to the de struction of the group, as distinct from
its removal from the region. As the ICTY has observed, while ‘there are
obvious similarities between a genocidal policy and the policy commonly
known as ‘ethnic cleansing’’ ( Krstić, IT-98-33-T, Trial Chamber
Judgment, 2 August 2001, para. 562), yet ‘[a] clear distinction must be
drawn between physical destruction and mere dissolution of a group. The
expulsion of a group or part of a group does not in itself suffice for
genocide.’ (Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003,
para. 519.) In other words, whether a particular operation described as
‘ethnic cleansing’ amounts to geno cide depends on the presence or
absence of acts listed in Article II of the Genocide Convention, and of the
intent to destroy the group as suc h. In fact, in the context of the
Convention, the term ‘et hnic cleansing’ has no le gal significance of its
own. That said, it is clear that acts of ‘ethnic cleansing’ may occur in
parallel to acts prohibited by Artic le II of the Convention, and may be
significant as indicative of the presence of a specific intent (dolus
32
specialis) inspiring those acts.”
57. Applying this conclusion to the Bosnia case, the Court found the following:
“The Court considers that there is persuasive and conclusive evidence
that deportations and expulsions of members of the protected group
occurred in Bosnia and Herzegovina. ... However, even assuming that
32
ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List No.
91, para. 190.
34 deportations and expulsions may be cat egorized as falling within Article
II, paragraph (c), of the Genocide Convention, the Court cannot find, on
the basis of the evidence presented to it, that it is conclusively established
that such deportations and expulsions were accompanied by the intent to
destroy the protected group in whole or in part.” 33
58. It thus follows that “ethnic cleansing” can constitute genocide only if accompanied with
the intent to destroy the prot ected group, and not to displace it. In the present case, the
Applicant has not offered any credible proof that the expulsion of the Croatian
population was accompanied by the intent to destroy that population or that the Croatian
population or any of its members were in fact destroyed as th e result of the expulsion.
On the other hand, the Respondent will show that the “ethnic cleansing” of Serbs was
carried out with the intent to destroy that population and that, in fact, a part of Serbian
population in Croatia was destroyed as a result of the actions of the Applicant.
D. Elements of the Genocidal Intent
59. The Genocide Convention identifies four el ements of genocidal intent: “to destroy”, “in
whole or in part”, “a national, ethnical, racial or religious group” and “as such”.
1. “Doestroy”
60. The words “to destroy” are a key element of the definition of genocidal intent, since it is
precisely the element of destruction of th e protected group which distinguishes the
genocidal intent from other forms of intent – for example discriminatory intent, even if
the latter intent fulfils all the other elements of the definition contained in the Genocide
Convention (in which case we could speak of the crime of persecution or
extermination).
61. “Destruction” means physical destruction of a group. Thus, “intent to destroy” includes
cases where the perpetrator seeks to destroy a group as an entity, even if that perpetrator
does not seek physical destruction of most of the individual members of the group.
33
Ibid., para. 334.
3562. Later in this Counter-Memorial, the Respondn et will prove that theactions of the Applicant
directed towards Serbs were committed with the intent to destroy that group, even if the
Applicant did not persist indestroying most of the indv iidual members of the group.
2. “In Whole or in Part”
63. While the destruction of the group “in whole” is more or less self-explanatory, the
Genocide Convention does not offer any elements that would help determine what is to
be considered a destruction of a group “i n part”. This issue has been analysed
extensively in legal doctrine, where variou s explanations have been offered. The
Respondent will not however go through variou s explanations proposed since, in the
present case, the Court and the parties can benefit from the Cour t’s judgment in the
Bosnia case, where three criteria relevant to th e determination of a part of the group
34
have been identified.
64. According to the Court, the intent must be, in the first place, to destroy at least a
substantial part of the particular group. Th at is demanded by the very nature of the
crime of genocide: since the object and pur pose of the Convention as a whole is to
prevent the intentional destruction of groups , the part targeted must be significant
enough to have an impact on the group as a whole.
65. Secondly, the Court observed that it was widely accepted that genocide may be found to
have been committed where the intent was to destroy the group within a geographically
limited area, in which case the area of the pe rpetrator’s activity and control, as well as
the opportunity available to the perpetrator, were to be considered. However, the Court
also concluded that this cr iterion of opportunity must al ways be weighed against the
first and essential factor of substantiality. It may be that the opportunity available to the
alleged perpetrator is so limited that the substantiality criterion is not met.
66.A third criterion that the Court took in to consideration is qua litative rather than
quantitative. This criterion was particularly elaborated by the ICTY Appeals Chamber
in the Krstić case, which found that in addition to the numeric size of the targeted
34
See ibid., paras. 198-201.
36 portion of the group, the prominence of that portion within the group can be a useful
consideration. In that case, if a specific part of the group is emblematic of the overall
group or essential to its surv ival that may support a finding that the part qualifies as
35
substantial within the meani ng of the Genocide Convention. However, similar to the
previous criterion of opportunity, the Court found that the qualitative approach cannot
stand alone and it consequently came to the conclusion that the substantiality criterion is
critical and is to be given priority.
67. In its Memorial, the Applicant never clearly stated whether th e alleged genocide was
committed against the group of Croats in whole or against a part of that group, although
it did claim that the goal of the alleged cam paign to create “Greater Serbia” was to
establish “Serbian control in those parts of the Republic of Croatia in which significant
Serb populations were located (including in particular Eastern a nd Western Slavonia,
Banovina, Kordun and Lika and Dalmatia as well as neighbouring areas falling within
the arc of ‘Greater Serbia’)” and eliminate from those areas “as far as possible all or
almost all members of the Croatian populatio n”, as well as that this alleged campaign
was carried out “with the spec ific intent of achieving the physical destruction and
elimination of the Croatian population of the areas in question”. 36
68. The Respondent is of the view that the Applicant should clea rly identify whether its
claims of the alleged genocide relate to the Croatian populati on as a whole or to a part
of that group and, if latter is the case, cl early identify to which part of the group the
claims relate. This, however, is ultimately of no particular significance, since genocide
was not committed either against the Croatian population as a whole or against any of
its parts.
69. As the counter-claims are concerned, the Respondent will demonstrate below that
genocide was committed against a part of th e Serbian population from Croatia, namely
against the Serbian population in the UN protected zones South and North. This part of
the Serbian population clearly satisfies the subs tantiality criterion, for reasons that will
be explained in Chapter XIV.
35See ICTY, Krstić, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, para. 12.
36See Memorial, p. 373, para. 8.03.
373. “Nationa Elt,hniRl,ci al or Religious Group”
70. As was noted in the judgment in the Bosnia case: “When examining the facts brought
before the Court in support of the accusations of the commission of acts of genocide, it
is necessary to have in mi nd the identity of the group against which genocide may be
considered to have been committed.” 37The specific intent to destroy must thus be
directed against a national, ethnical, racial or religious group.
71. Legal doctrine and the practice of the international tribunals recognize two approaches
concerning the definition of the group – th e positive and the negative definition. The
positive definition is the predominant view and was also endorsed by the Court in the
38
Bosnia case. In the present case, both the App licant and the Respondent define the
protected group in positive terms (although the Applicant does make occasional
references to “non-Serbs”) and there is acco rdingly no dispute between the parties on
this issue.
72. There is equally no dispute regarding the determination of membership in the protected
group. As the Applicant noted, membership may be achieved either on the application
of objective or subjective criteria (as we ll as on the combination of the two), but
whichever approach is taken, it is undisputed that Croats and Serbs who lived in Croatia
at the time of the armed conflict constituted two separate, clearly identifiable national
and ethnical groups.
4. “Ausch”
73. The words “as such” complete the defini tion of the specific intent in the Genocide
Convention, but offer very little guidance as to their meaning and as to what they
actually add to the other elements of genocid al intent. In legal doctrine, based on the
analysis of the travaux préparatoires, it is often considered th at the two words point to
the motive of the perpetrator, meaning that the perpetrator targets members of a certain
group specifically because of their membersh ip in the group and not for some other
37
ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List No.
38, para. 191.
See ibid., para. 196.
38 reason. Similar view was expressed by the A pplicant, who claims that “the phrase
clearly requires that the vic tims of the genocidal acts should have been attacked, in
aggregate, because of their identifica tion as members of a protected group”. 39
International case law has not dealt with the interpretation of the words “as such” to a
large extent, although the following useful passage can be found in the Judgment of the
ICTR Appeals Chamber:
“The words ‘as such’, however, cons titute an important element of
genocide, the ‘crime of crimes’. It was deliberately included by the
authors of the Genocide Convention in order to re concile the two
diverging approaches in favour of and against including a motivational
component as an additional element of the crime. The term ‘as such’ has
the effet utile of drawing a clear distinc tion between mass murder and
crimes in which the perpetrator ta rgets a specific group because of its
nationality, race, ethnicity or religio n. In other words, the term ‘as such’
clarifies the specific intent requirement. It does not prohibit a conviction
for genocide in a case in which the pe rpetrator was also driven by other
motivations that are legally irrelevant in this context. Thus the Trial
Chamber was correct in interpreting ‘as such’ to mean that the proscribed
acts were committed against the victims because of their membership in
40
the protected group, but not solely because of such membership.”
74. The Court in the Bosnia case simply held that the words “as such” emphasize the intent
to destroy the protected group. On this basis, the words “as such” could be understood
as to point to the discriminatory intent di rected against members of a certain group, but
this intent by itself (as e xplained in more details above) is not sufficient to establish
genocide if it is not accompanied by the intent to destroy the group.
39Memorial, p. 349, para. 7.56.
40ICTR, Niyitegeka, ICTR-96-14-A, Appeal Court Judgment, 9 July 2004, para. 53 (footnotes omitted).
41See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List No.
91, para. 187.
395. Physical Elements (Actus Reus)
75.Article II of the Genocide Convention lists five categories of prohibited acts, the
commission of which can constitute genocide if these acts are committed with the
specific intent to destroy a national, ethnical, racial or religious group. Without that
specific intent, however, neither of the ac ts enumerated in Article II, nor their
accumulation, can constitute genocide.
A. “Killing Members of the Group”
76. Killing members of the group is the most obvious way of committing genocide, in case
of which members of the group are physically destroyed with a view of destroying their
group. Killing is also the easiest to define – the Trial Chamber in the Krstić judgment
defined it as “the death of the victim resulti ng from an act or omission of the accused
committed with the intention to kill or to cause serious bodily harm which he/she should
reasonably have known might lead to death”. 42
77. In order, however, for a killing to c onstitute genocide, the ICC Elements of Crimes
identify four further requirements which have to be met:
“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 dest roy, 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 agains t that group or was conduct that
43
could itself affect such destruction.”
78. In the present case, the Respondent does not dispute that Croats were killed during the
armed conflict in Croatia between 1991 and 1995, although (as will be demonstrated in
the following chapters) the number of killi ngs was much smaller than claimed by the
42
43ICTY, Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 485.
ICC, Elements of Crimes, ICC-ASP/1/3, p. 2.
40 Applicant. Later in this Counter-Memorial the Respondent will show that the killing of
Croats was not committed with the intent to destroy that group and accordingly does not
constitute genocide. On the other hand, the Respondent will show that Serbs were killed
by the Applicant and that these killing were committed with the intent to destroy the
group as such.
B. Causing Serious Bodily or Mental Harm to Members of the Group
79. The second group of prohibited acts consists of causing se rious bodily or mental harm
to members of the group. Building on the Akayesu judgment of th e ICTR, a Trial
Chamber of the ICTY in Krstić concluded:
“The Trial Chamber finds that se rious bodily or mental harm for
purposes of Article IV [of the ICTY Statute, which is identical to Article
II of the Genocide Convention] actus reus is an intentional act or
omission causing serious bodily or me ntal suffering. The gravity of the
suffering must be assessed on a case by case basis and with due regard
for the particular circumstances. In line with the Akayesu judgment, the
Trial Chamber states that serious harm need not cause permanent and
irremediable harm, but it must invol ve harm that goes beyond temporary
unhappiness, embarrassment or humiliation. It must be harm that results
in a grave and long-term disadvantage to a person’s ability to lead a
normal and constructive life. In subs cribing to the a bove case-law, the
Chamber holds that inhuman treatment, torture, rape, sexual abuse and
deportation are among the acts which may cause serious bodily or mental
44
injury.”
80. The ICC Elements of Crimes require th at four conditions be met in order for causing
serious bodily or mental harm to members of the group to constitute genocide. These
elements are mutatis mutandis the same as in the case of killing. 45
44ICTY, Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 513 (footnote omitted).
45See ICC, Elements of Crimes, ICC-ASP/1/3, p. 2.
4181. The Respondent does not dispute that se rious bodily or mental harm was caused to
some members of the Croatian population during the war in Croatia between 1991 and
1995, but submits at the same time that serious bodily or mental harm was also caused
to Serbs from Croatia. The Respondent will later demonstrate that the causing of serious
bodily or mental harm to members of the Croatian population was not accompanied by
the required specific intent, and will further demonstrate that the Applicant caused
serious bodily or mental harm to Serbs with the intent to destroy in whole or in part that
group, as such.
C. Deliberately Inflicting on the Group Conditions of Life Calculated to Bring About its
Physical Destruction in Whole or in Part
82.The third group of prohibited acts unde r the Convention consists of deliberately
inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part. The Tria l Chamber of the ICTR defined it in the
following terms:
“The Chamber holds that the expre ssion deliberately inflicting on the
group conditions of life calculated to bring about its physical destruction
in whole or in part, should be constr ued as the methods of destruction by
which the perpetrator does not immedi ately kill the members of the
group, but which, ultimately, seek their physical destruction.
For purposes of interpreting Article 2(2)(c) of the Statute [which is
identical to Article II(c) of the Genocide Convention], the Chamber is of
the opinion that the means of deliberate inflicting on the group conditions
of life calculated to bring about its physical destruction, in whole or part,
include, inter alia, subjecting a group of people to a subsistence diet,
systematic expulsion from homes and the reduction of essential medical
46
services below minimum requirement.”
83. The ICC Elements of Crimes state that “the term ‘conditions of life’ may include, but is
not necessarily restricted to, deliberate deprivation of resour ces indispensable for
46
ICTR, Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, paras. 505-506.
42 survival, such as food or medical services , or systematic expulsion from homes”. 47 The
Elements of Crimes list five requirements which have to be met in order for an act of
deliberately inflicting on the group condition s of life calculated to bring about its
physical destruction in whol e or in part to be considered as genocide. These
requirements are mutatis mutandis the same as in the case of killing or causing serious
bodily or mental harm.
84. Consequently, in order for deliberately inflicting on the group conditions of life
calculated to bring about its physical destruct ion in whole or in part to constitute
genocide, the prohibited acts must be accompanied with the intent to destroy the group.
This is particularly relevant for the pr esent case, since a large number of crimes
committed against both Croats and Serbs c ould be qualified as “ethnic cleansing”, the
practice which is usually equated to “systematic expulsion from homes”, and which can,
according to the Court, constitute genocide, provided such action is carried out with the
necessary specific intent. The Applicant, however, failed to prove that the expulsion of
Croats, where it has occurred, was accompanied by the intent to destroy that population,
while the Respondent will prove that the expu lsion of Serbs was carried out with the
required specific intent.
D. Imposing Measures Intended to Prevent Births within the Group
85. The fourth category of prohibited acts consists of imposing me asures intended to
prevent births within the group. The travaux préparatoires, to which the Applicant also
referred, give as examples for such m easures: sterilization, compulsory abortion,
segregation of sexes and obstacles to marriage. The ICTR in Akayesu added rape to this
list (but only in patriarchal societies), and continued to find that measures intended to
prevent births within the group may even be mental if, for instance, the person raped
48
refuses subsequently to procreate. This view of the ICTR, however, remains isolated
and has not been followed in later decisions of either the ICTY or the ICTR.
86. The position of the Respondent regarding measures intended to pr event births within
the group is that such measures have to be systematic and widespread, in contrast to
47
48See ICC, Elements of Crimes, ICC-ASP/1/3, p. 3.
See ICTR, Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, paras. 507-508.
43 random acts of sexual violence committed sporadically against individual members of
the group. As to the Applicant’s claim that th e “systematic perpetration against Croats
of rape and other sex crimes, in particul ar castration, fall clearly within Article II(d) of
the Convention”, 49 the Respondent, first, disputes that many of the alleged acts actually
took place (as explained in details in Chap ter VII) and, second, considers that, in any
case, the described acts of random sexual violence cannot fall with in the meaning of
“measures intended to prevent births within the group” in Article II(d) of the Genocide
Convention. In addition, the Respondent s ubmits that those acts of sexual violence
which have been committed, were not committed with intent to destroy the Croatian
population as such.
87. The Respondent does not submit that any of the acts committed by the Applicant during
the genocidal campaign against Serbs falls within the category of imposing measures
intended to prevent births within the group.
E. ForcibTlyransferriCghildren of the Group to Another Group
88. The Applicant has not claimed that any of the acts allegedly committed against Croats
fell within the category of forcibly transfer ring children of the group to another group,
and neither does the Respondent with respect to the acts committed by the Applicant
during the genocidal campaign against Serbs.
6. Other Acts Prohibited by Article III of the Genocide Convention
89. Article III of the Genocide Convention provides as follows:
“The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.”
49
Memorial, p. 354, para. 7.73.
4490. In the Bosnia case, the Court found that “the C ontracting Parties are bound by the
obligation under the Convention not to comm it, through their organs or persons or
groups whose conduct is attributable to them, genocide and the other acts enumerated in
50
Article III.” The Court did not specifically defi ne the other acts (except complicity),
but it did offer a very useful explanation of the relationship of genocide and the other
acts enumerated in Article III, in particular in terms of State responsibility:
“Thus, if and to the extent that consideration of the first issue were to
lead to the conclusion that some acts of genocide are attributable to the
Respondent, it would be unnecessary to determine whether it may also
have incurred responsibility under Article III, paragraphs (b) to (e), of the
Convention for the same acts. Even though it is theoretically possible for
the same acts to result in the attribu tion to a State of acts of genocide
(contemplated by Art. III, para. (a)), conspiracy to commit genocide (Art.
III, para. (b)), and direct and public incitement to commit genocide (Art.
III, para. (c)), there would be little poi nt, where the requirements for
attribution are fulfilled under (a), in making a judicial finding that they
are also satisfied under (b) and (c), since responsibility under (a) absorbs
that under the other two. The idea of holding the same State responsible
by attributing to it acts of ‘genocide’ (Art. III, para. (a)), ‘attempt to
commit genocide’ (Art. III, para. (d)), and ‘complicity in genocide’ (Art.
III, para. (e)), in relation to the same actions, must be rejected as
untenable both logically and legally.” 51
91. It should be noted here that the Court undertook the quoted le gal analysis only with
respect to the events in Sreb renica, for which it had previous ly concluded that they had
constituted genocide. The Court did not enter into a similar analysis with respect to
other crimes committed in Bosnia and Herzeg ovina, having previously concluded that
they had not been committed with the required genocidal intent.
50ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 179.
51Ibid., para. 380.
45A. Conspiracy to Commit Genocide
92. The Trial Chamber of the ICTR in Musema defined conspiracy as “an agreement
52
between two or more persons to commit the crime of genocide”. The same Trial
Chamber analyzed the mens rea of conspiracy and found the following:
“With respect to the mens rea of the crime of conspiracy to commit
genocide, the Chamber notes that it rests on the concerted intent to
commit genocide, that is to destroy, in whole or in part, a national,
ethnic, racial or religio us group, as such. Thus, it is the view of the
Chamber that the requisite intent for the crime of conspiracy to commit
genocide is, ipso facto, the intent required for the crime of genocide, that
53
is the dolus specialis of genocide.”
93. This conclusion was implicitly confirmed by the Court in the Bosnia case, since the
Court only considered the FRY’ s alleged responsibility for conspiracy with respect to
Srebrenica and not with respec t to other crimes, having prev iously concluded that the
other crimes had not been committed with the necessary genocidal intent. The Court
then went on to conclude that it had not been proven that persons whose actions could
have been attributed to the FRY committed acts that can be characterized as “conspiracy
to commit genocide”. 54
94. The ICTR Trial Chamber in Musema considered also the di fference between the Civil
Law and the Common Law concepts of conspira cy. In the former, conspiracy is a form
of participation in a crime which is only punishable if the crime itself is committed
(unless specifically incriminated as a sepa rate offence in the law). In the latter,
conspiracy is an inchoate offence, punish able by itself. The IC TR Trial Chamber,
basing itself on the travaux préparatoires , opted for the Common Law notion of
conspiracy and concluded “that, as far as the crime of conspiracy to commit genocide is
concerned, it is, indeed, the act of conspi racy itself, in other words, the process
52ICTR, Musema, ICTR-96-13-A, Judgment and Sentence, 27 January 2000, para. 191.
53Ibid., para. 192.
54See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 417.
46 55
("procédé") of conspiracy, which is punishable and not its result.” Accordingly, the
same Trial Chamber held “that the crime of conspiracy to commit genocide is
punishable even if it fails to produce a result , that is to say, even if the substantive
56
offence, in this case genocide, has not actually been perpetrated.”
95. In light of this, and especially with respect to State responsibility, conspiracy to commit
genocide only becomes relevant if genocide has not been committed. Accordingly,
conspiracy constitutes a plan or a design that has either not been put into practice or has
been put into practice but failed to produce the desired results, in which case attempt to
57
commit genocide may also be established. In any case, however, conspiracy to commit
genocide requires the same dolus specialis as genocide.
B. Direct and Public Incitement to Commit Genocide
96. Incitement to commit genocide is another offense which, like conspiracy, can exist and
be punishable even when genocide has not been committed. 58In fact, in terms of State
responsibility, incitement also becomes important only if genocide has not been
committed, since it is otherwise absorbed by genocide itself. The Court concluded to
this effect in the Bosnia case. 59
97. The ICTR in Akayesu defined direct and public incitement to commit genocide as:
“[d]irectly provoking the perpetrato r(s) to commit genocide, whether
through speeches, shouting or threats uttered in public places or at public
gatherings, or through the sale or disse mination, offer for sale or display
of written material or printed matte r in public places or at public
gatherings, or through the public di splay of placards or posters, or
60
through any other means of audiovisual communication.”
55ICTR, Musema, ICTR-96-13-A, Judgment and Sentence, 27 January 2000, para. 193.
56Ibid., para. 194.
57This would, on the other hand, raise the question of the relationship between conspiracy and attempt, namely
whether an attempt to commit genocide would absorb consairy in the same manner as a completed genocide would.
58
59See ICTR, Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, para. 562.
See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 179, quoted above.
60ICTR, Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, para. 559.
4798. The same Trial Chamber also identified the required mental element:
“The mens rea required for the crime of direct and public incitement to
commit genocide lies in the intent to directly prompt or provoke another
to commit genocide. It implies a desi re on the part of the perpetrator to
create by his actions a particular st ate of mind necessary to commit such
a crime in the minds of the person(s) he is so engaging. That is to say that
the person who is inciting to commit genocide must have himself the
specific intent to commit genocide, na mely, to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such.” 61
99. Incitement has to be public, which, accord ing to the ILC, requires “the call for criminal
action to a number of individuals in a public place or to members of the general public
at large.” 62This further means that “an i ndividual may communicate the call for
criminal action in person in a public place or by technologi cal means of mass
63
communication, such as by radio or television.”
100. Incitement also has to be direct. In the words of the ILC: “The element of direct
incitement requires specifically urging anot her individual to take immediate criminal
64
action rather than merely making a vague or indirect suggestion.” Thisviewwas
shared by the ICTR in Akayesu, although the Trial Chamber added that “the direct
element of incitement should be viewed in the light of its cu ltural and linguistic
65
content” and that, accordingly, “incitement may be direct, and nonetheless implicit”.
The ICTR, therefore, decided to “consider on a case-by-case basis whether, in light of
the culture of Rwanda and th e specific circumstances of the instant case, acts of
incitement can be viewed as direct or not , by focusing mainly on the issue of whether
the persons for whom the message was inte nded immediately grasped the implication
thereof.” 66
61
62Ibid., para. 560.
Commentary on Article 2 of the Draft Code of Cr imes against the Peace and Security of Mankind, Yearbook
63 the International Law Commission, 1996,Vol. II, Part Two, p. 22, para. 16.
64Ibid.
Ibid.
65ICTR, Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, para. 557.
66Ibid., para. 558.
48101. Nevertheless, even if incitement may take an implicit form, an element that should
never be forgotten is the intent of the perpet rator, that is, the pe rson who incites others
to commit a certain crime. Only when the inci tement in question is done with the intent
to destroy a protected group or its part as such can it constitute incitement to commit
genocide in terms of Article III(c) of the Genocide Convention.
C. Attempt to Commit Genocide
102. As the Applicant correctly noted, there has been no case law on the subject of attempted
genocide, as there have never been any prosecutions for this crime. 67 Since the
Genocide Convention does not offer any defi nition of attempt, some guidance can be
found in the works of the ILC and the Rome Statute of the ICC.
103. The ILC Draft Code of Crimes against th e Peace and Security of Mankind provides
that:
“An individual shall be responsible for a crime set out in article 17, 18,
19 or 20 if that individual … [A]ttempts to commit such a crime by
taking action commencing the executi on of a crime which does not in
68
fact occur because of circumstances independent of his intentions.”
Similarly, the Rome Statute provides that:
“[a] person shall be criminally resp onsible and liable for punishment for
a crime within the jurisdiction of the Court if that person … [A]ttempts to
commit such a crime by taking action that commences its execution by
means of a substantial step, but the crime does not occur because of
circumstances independent of the person's intentions.” 69
104. Since both the ILC and the Rome Statute in criminate attempt in general, and not
exclusively attempt to commit genocide, th e quoted definitions do not contain any
67See Memorial, p. 358, para. 7.84.
68Article 2, para. 3 of the Draft Code of Cr imes against the Peace and Security of Mankind, Yearbook of the
International Law Commission, 1996,Vol. II, Part Two, pp. 18-19.
69Article 25 of the Rome Statute of the International Criminal Court.
49 reference to intent. It is, ne vertheless, self-evident that an attempt to commit genocide
can only be committed with the same dolus specialis as genocide itself. In that sense,
the ILC commented:
“This subparagraph [subparagraph (g) of Article II] provides for the
criminal responsibility of an individual who forms the intent to commit a
crime, commits an act to carry out this intention and fails to successfully
complete the crime only because of some independent factor which
prevents him from doing so. Thus , an individual incurs criminal
responsibility for unsuccessfully attempting to commit a crime only when
the following elements are present: (a) intent to commit a particular
crime; (b) an act designed to co mmit it; and (c) non-completion of the
70
crime for reasons independent of the perpetrator’s will.”
D. CompliciiG yenocide
105. Unlike conspiracy, incitement and attempt, which can exist independently of the
completed genocide (and in the case of attempt only when ge nocide has not been
committed), complicity in genocide exists only when genocide has actually been
committed. To this effect, the Trial Chamber of the ICTR concluded that: “in order for
an accused to be found guilty of complicity in genocide, it must, first of all, be proven
71
beyond a reasonable doubt that the crime of genocide has, indeed, been committed.”
106. The same Trial Chamber found “that an accused is liable as an accomplice to genocide
if he knowingly aided or abetted or instigated one or more persons in the commission of
genocide, while knowing that such a person or persons were committing genocide, even
though the accused himself did not have the speci fic intent to destroy, in whole or in
72
part, a national, ethnical, racial or religious group, as such.”
70Commentary on Article 2 of the Draft Code of Cr imes against the Peace and Security of Mankind, Yearbook
of the International Law Commission, 1996,Vol. II, Part Two, p. 22, para. 17.
71ICTR, Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, para. 530.
72Ibid., para. 545. “Instigation” in this case means instigation in private, in contrast to public instigation which
stands as a separate offence of direct and public incitement to commit genocide.
50107. While otherwise very useful, the findings of the ICTR (or the ICTY) deal exclusively
with individual criminal responsibility. On the other hand, the pr esent case concerns
State responsibility and in this regard the most authoritativ e opinion is the judgment of
the Court in the Bosnia case, where the issue of complicity was discussed in connection
to the FRY’s alleged responsibility for events in Srebrenica.
108. Thus, the Court first stated that the questi on of complicity has to be distinguished from
the question of whether the perpetrators of genocide in Srebrenica acted on the
instructions of or under the di rection or effective control of the organs of the FRY. In
this respect, the Court found th at if it were established th at a genocidal act had been
committed on the instructions or under the direction of a State, the necessary conclusion
would be that the genocide wa s attributable to that Stat e, which would be directly
responsible for it and no question of complicity would arise. 73
109. The Court then concluded that “complicity”, in terms of Article III (e) of the
Convention, includes the provisi on of means to enable or f acilitate the commission of
the crime and found further th at “complicity” is similar to the category, found among
the customary rules constituting the law of St ate responsibility, of “aid and assistance”
furnished by one State for the commission of a wrongful act by another State. 74
110. The Court used as a starting point for its analysis Article 16 of the ILC Articles on State
Responsibility, which provides as follows:
“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:
a) That State does so with knowledg e of the circumstances of the
internationally wrongful act; and
b) The act would be internationally wrongful if committed by that
State.”
73See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 419.
74Ibid.
51111. On this basis, the Court found that to asce rtain whether the Respondent is responsible
for “complicity in genocide” within the meaning of Article III (e) of the Genocide
Convention, it must examine whether organs of the Respondent, or persons acting on its
instructions or under its direc tion or effective control, furn ished “aid or assistance” in
75
the commission of genocide.
112. As a preliminary point, the C ourt also addressed the requir ed intent of the alleged
accomplice, namely whether complicity in genocide presupposes that the accomplice
shares the specific intent of the principal perpetra tor of genocide. In this regard, the
Court found that:
“[t]here is no doubt 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 complicity in genocide unless at the least that organ or person
acted knowingly, that is to say, in pa rticular, was aware of the specific
76
intent (dolus specialis) of the principal perpetrator.”
113. In light of this, the question of complicity in the present case can arise only if the Court
finds that: (a) genocide has been committed against Croats, (b) it was not committed by
organs or persons or groups whose conduct is attributable to the Respondent, and (c) the
Respondent knowingly provided as sistance to the perpetrators of genocide, aware of
their specific intent. In the following Chap ters, the Respondent will show that these
conditions are not met, starting with the firs t and the most important one – the alleged
commission of genocide.
114. As to the counter-claims, the issue of co mplicity does not arise for the reason that
genocide against Serbs was committed by th e Croatian Government itself, on its own
territory, and accordingly only the Croatian Government can be the principal perpetrator
of that genocide.
75Ibid., para. 420.
76Ibid., para. 421.
527. Obligation to Prevent and to Punish
115. The obligation of States to prevent and punish the crime of genocide is reflected in the
title of the Genocide Convention and further elaborated in most of the substantive
articles of the Convention (Articles I, IV, V, VI, VII and VIII).
116. The obligations to prevent and to punish genocide are closely connected, since
providing punishment for the crime of genoc ide (and the other acts enumerated in
Article III of the Convention) is one way of preventing th e crime from occurring, but
this does not mean that the two obligations ha ve no separate legal existence, as will be
explained below.
A. Obligatio torevent
117. The obligation to prevent genocide places on the States the obligation to take such
action as they can to prevent genocide from occurring, while respecting the United
Nations Charter and any decisi ons that may have been ta ken by its competent organs.
This includes, but is not limited to, a possibility provided by Article VIII of the
Convention to call upon the co mpetent organs of the UN to take such action under the
Charter of the United Nations as they c onsider appropriate for the prevention and
77
suppression of acts of genocide or any of the other acts enumerated in Article III.
118. Since the Court concluded in the Bosnia case that the obligation to prevent genocide
implies also the obligation not to commit ge nocide or any other act enumerated in
78
Article III, the first question that arises in term s of State responsibility is whether a
State can be held responsible both for genocid e (or any other act enumerated in Article
III) and for failure to prevent genocide. The Court answered this question in the
negative, finding that:
“If a State is held responsible for an act of genocide (because it was
committed by a person or organ whose conduct is attributable to the
State), or for one of the other acts referred to in Article III of the
77See ibid., para. 427.
78See ibid., para. 166 et seq.
53 Convention (for the same reason), then there is no point in asking
whether it complied with its obligation of prevention in respect of the
same acts, because logic dictates th at a State cannot have satisfied an
obligation to prevent genocide in whic h it actively participated. On the
other hand, it is self-evident, as the Parties recognize, that if a State is not
responsible for any of the acts referred to in Article III, paragraphs (a) to
(e), of the Convention, this does not m ean that its responsibility cannot
be sought for a violation of the oblig ation to prevent genocide and the
other acts referred to in Article III.” 79
119. However, a State can be heldresponsible for breaching the obligation to prevent genocide
only if genocide was actually committed. This, on the other hand, does not mean that the
obligation to prevent genocide only comes in to being when perpetration of genocide
commences. A State’s obligation to prevent genocide and act accordingly arises at the
instant that the State learns of, or should normally have learned of, the existence of a
serious risk that genocide will be committed. Nevertheless, if neither genocide nor any
other act enumerated in Article III is ultimatelycarried out, then a State that omitted to act
when it could have done so cannot be held responsible a posteriori, since the event did
not happen which must occur for there to bea violation of the obligation to prevent. 80
120. The obligation to prevent is an obligation of conduct and not of result, in the sense that
the obligation of a State is to employ all m eans reasonably available to it to prevent
genocide, but without an obligation to succeed in preventing the commission of
genocide. In order to assess whether a State has complied with the obligation to prevent,
various parameters should be taken into consideration. The first is the capacity to
influence effectively the actions of persons likely to commit, or already committing,
genocide, which then depends on the geographical distance of the State concerned from
the scene of events and on the strength of th e political links, as well as links of other
kinds, between the authorities of that State and the main ac tors in the events. Another
parameter is the State’s legal capacity to prevent genocide, since every State may only
81
act within the limits permitted by international law.
79Ibid., para. 382.
80See ibid., para. 431.
81See ibid., para. 430.
54121. On the other hand, a State which has violated its obligation to prevent genocide cannot
escape responsibility even if it proves, a nd even less claims, that even if it had
employed all means reasonably at its disposal , they would not have sufficed to prevent
82
the commission of genocide.
122. Finally, the violation of the obligation to prevent should be distinguished from
complicity in genocide. The two main differen ces consist in the type of action and the
mens rea of the State concerned. As the Court explained, “[c]omplicity always requires
that some positive action has been taken to furnish aid or assistance to the perpetrators
of genocide, while a violation of the obligati on to prevent results from mere failure to
adopt and implement suitable measures to prevent genocide from being committed. In
other words, while complicity results from commission, viol ation of the obligation to
prevent results from omission…” 83
123. In terms of mens rea, while responsibility for complic ity requires that an organ or a
person (whose actions can be attributed to a State) furn ishing aid or assistance to a
perpetrator of the crime of genocide acted knowingly, that is to say, was in particular
aware of the specific intent (dolus specialis) of the principal perpetrator, the same
degree of knowledge is not required for a State to be found to have violated its
obligation to prevent genocide. In the latter case, it is enough to ascertain that the State
was aware, or should normally have been aw are, of the serious danger that acts of
genocide would be committed. 84
124. In the present case, the question of the Re spondent’s violation of the obligation to
prevent genocide can arise only if the Court finds that: (a) genocide has been committed
against Croats, (b) it was not committed by organs or persons or groups whose conduct
is attributable to the Respondent, (c) the Respondent is not responsible for complicity in
genocide, (d) the Respondent was aware of the possibility that genocide would be
committed but failed to take reasonable action to prevent it, and (e) the Respondent was
in position to influence the actions of the principal perpetrator. In the following
Chapters, the Respondent will show that thes e conditions are not met, starting with the
alleged commission of genocide.
82Ibid.
83Ibid., para. 432.
84Ibid.
55125. With regard to the counter-claims, the issue of the violation of the obligation to prevent
genocide does not arise for the reason that genocide against Serbs was committed by the
Croatian Government itself, on its own te rritory, and accordingly only the Croatian
Government can be the principal perpetrator of that genocide.
B. Obligatiotnunish
126. The Genocide Convention requires States to punish persons committing any of the acts
enumerated in Article III of the Genocide Convention, whether they are constitutionally
responsible rulers, public officials or private individuals. It obliges States to enact the
necessary legislation to give effect to the Convention and provide effective penalties for
persons guilty of genocide or other acts enumer ated in Article III. It also provides that
persons charged with any of the acts enumer ated in Article III shall be tried by a
competent tribunal of the State in the terr itory of which the act was committed or by
such international penal tr ibunal as may have jurisdic tion with respect to those
Contracting Parties which shal l have accepted its jurisdicti on. Finally, it provides that
any of the acts enumerated in Article III shal l not be considered as political crimes for
the purposes of extradition and places an oblig ation on the Contracting Parties to grant
extradition in such cases, in accordance with their laws and treaties in force.
127. The obligation to punish is, however, limited to the exercise of the territorial criminal
jurisdiction of a State. As the Court noted : “Article VI only obliges the Contracting
Parties to institute and exercise territorial criminal jurisdiction; while it certainly does
not prohibit States, with respect to genocid e, from conferring jurisdiction on their
criminal courts based on criteria other than where the crime was committed which are
compatible with international law, in particular the nationality of the accused, it does
not oblige them to do so.” 85
128. The only exception to this rule is when a pe rson is charged with genocide, or any other
act enumerated in Article III of the Conventi on, by such an international penal tribunal
as may have jurisdiction with respect to those States which have accepted its
jurisdiction. In this case, a State is obliged to cooperate with that tribunal irrespective of
85
Ibid., para. 442.
56 whether the alleged crime was committed in the territory of that State. This cooperation
includes the obligation to arrest and extradit e the persons charged, but only if they are
accused of genocide or other acts enumerated in Article III. 86
129. In the Bosnia case, the Court considered the relati onship between the violation of the
obligation to punish and the ot her possible violations of the Genocide Convention. In
this respect, the Court found that:
“It is perfectly possible for a State to incur responsibility at once for an
act of genocide (or complicity in genocide, incitement to commit
genocide, or any of the other acts enumerated in Article III) committed
by a person or organ whos e conduct is attributable to it, and for the
breach by the State of its obligation to punish the perpetrator of the act:
these are two distinct internationall y wrongful acts attributable to the
State, and both can be asserted against it as bases for its international
87
responsibility.”
130. Later in this Counter-Memorial, the Re spondent will demonstr ate that it has not
breached its obligation to puni sh the crime of genocide. At the same time, the
Respondent will show that the Applicant has breached this same obligation, in addition
to breaching the obligation not to commit genocide itself.
86Ibid., para. 443.
87Ibid., para. 383.
5758 CHAPTER III
QUESTIONS OF PROOF
1. Introduction
A. Burden of Proof
131. As the Court observed several times in its previous cases, “it is well established in
general that the applicant must establish its case and that a party asserting a fact must
88
establish it”. In other words, “it is the litigant seeking to establish a fact who bears the
burden of proving it”. 89 According to the principle of equality of parties, this general
approach towards the burden of proof should be applied without distinction whether a
fact is asserted by the applicant or by th e respondent, and nothing in the Statute and
Rules of Court can justify a different approach to this question.
B. The Standard of Proof
132. The question of standard of proof required in a case involving charges of exceptional
gravity against a State was carefully determined by the Court in a previous case
concerning genocide:
“The Court requires that it be fully convinced that allegations made in
proceedings, that the crime of genocid e or the other acts enumerated in
Article III have been committed, have been clearly established. The same
90
standard applies to the proof of attribution for such acts.”
133. In the same Judgment, the Court made a sensitiv deistinction between the required standard of
proof for the above mentioned type of responsibility and the responsibility of a State for
88
ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 204.
89ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984,p. 437, para. 101.
90ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 209 (emphasis added).
59 breaching its obligation to prevent and punish the crime of genocide, where “the Court
requires proofat a high level of certaitny appropriate to the ser oiusness of the allegatio.” 91
134. Having in mind the same nature and gravity of charges in the Bosnian and this case, the
Respondent submits that the same standards of proof should be applied in respect of the
claims of Croatia.
135. However, it is well known th at proving acts of genocide ( actus reus), and proving the
intent to commit genocide ( mens rea) is not always equally possible for parties to
judicial proceedings. While th e acts of genocide enumerat ed in Article II of the
Genocide Convention are often well establis hed by reliable reports of independent
experts and international tribunals in the post-conflict period, the intent to commit
genocide, as a mental element of this crim e, is sometimes difficult to show by direct
evidence. In the Corfu Channel case, the Court observed that
“[t]he 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. [...] The proof may be drawn from
92
inferences of fact, prov ided that they leave noroom for reasonable doubt.”
136. It seems that the previous approach is compatible with the requirements of this case,
which is related to the most serious issues of State responsibility. At the same time, the
quoted standard of proof applied in the Corfu Channel case (“no room for reasonable
doubt”) is fully equivalent with the standard of proof that is applied in the cases before
the International Criminal Tribunal for the former Yugoslavia, which deal with the same
events as the Croatian Memorial. Namely, Rule 87(A) of the ICTY Rules of the
Procedure and Evidence reads as follows:
“A finding of guilt may be reached only when a majority of the Trial
Chamber is satisfied that guilt has been proved beyond reasonable doubt”. 93
91Ibid., para. 210 (emphasis added).
92ICJ, Corfu Channel case, Judgment of April 9 , 1949: I.C.J. Reports 1949, p. 18.
93See also, the Rome Statute of the Interantional Criminal Court, Art. 66 (3): “In order to convict the accused,
the Court must be convinced of the guilt of the accused beyond reasonable doubt.”
60137. Consequently, this leads to th e conclusion that the standard of proof in this case,
concerning the crime of genocide, should natura lly be the same one as the standard of
proof in the criminal proceedings, i.e. it s hould be the highest standard of proof that
could be required in the international litigations.
C. Methods of Proof
138. There is no doubt that it is for the Court to make its own determination of facts which
are relevant to law in certain case, bearing in mind its specific subject matter.
Additionally, as it was stated in the case concerning Armed Activities on the Territory of
the Congo (Democratic Republic of the Congo v. Uganda), “[t]he Court has not only the
task of deciding which of those materials must be considered relevant, but also the duty
to determine which of them have probative value with regard to the alleged acts.” 94
139. Concerning the methods of proof, the Court, in the same case, said this:
“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 by
the person making them ( Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America ), Merits,
Judgment, I.C.J. Reports 1986, p. 41, para. 64). The Court will also give
weight to evidence that has not, ev en before this litigation, been
challenged by impartial persons for th e correctness of what it contains.
The Court moreover notes that evid ence obtained by examination of
persons directly involved, and who were subsequently cross-examined by
judges skilled in examination and experienced in assessing large amounts
of factual information, some of it of a technical nature, merits special
95
attention.”
94ICJ, Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment, 19 December 2005, General List No. 116, para. 58.
95Ibid., para. 61.
61140. In the case concerning the Application of the Genocide Convention (Bosnia and
Herzegovina v. Serbia and Montenegro), the Court recapitulated its previous practice as
follows:
“The Court was also referred to a number of reports from official or
independent bodies, giving accounts or felevant events. 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 ha s been generated (for
instance an anonymous press report or the product of a careful court or
court-like process), and (3) the quality or charact er of the item (such as
statements against interest, andagreed or uncontested facts).” 96
141. Concerning the findings of the Internat ional Criminal Tribunal for the former
Yugoslavia, the Court confirme d that the fact-finding proce ss of the ICTY fell within
the Congo-Uganda formulation, as “evidence obtained by persons directly involved,
tested by cross-examination, the credibi lity of which has no t been challenged
subsequently.” However, when deciding upon the probative value of actions and
decisions taken at the various stages of the ICTY proceedings, the Court found that
a) the Prosecution’s decisions,
b) the decision of a judge on reviewing the indictment to confirm it,
c) the decision of a Trial Chamber to issue an international arrest
warrant and
d) the decision of a Trial Chamber on the accused’s motion for
acquittal at the end of the prosecution case,
could not be considered as the facts establ ished in a way which met the standard of
98
proof required by the Court in that case. The Court concluded that
“it should in principle accept as highl y persuasive relevant findings of
fact made by the Tribunal at trial, un less of course they have been upset
96ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 227.
97Ibid., para. 214.
98Ibid., paras. 216-219.
62 on appeal. For the same reasons, any evaluation by the Tribunal based on
the facts as so found for instance about the existence of the required
99
intent, is also entitled to due weight.”
142. Yet, in the same case, the Court carefully determined which findings of the ICTY
judgments could be taken as the fullest account in the international litigation:
“[T]he Court attaches the utmost importance to the factual and legal
findings made by the ICTY in ruli ng on the criminal liability of the
accused before it and, in the present case, the Court takes fullest account of
the ICTY’s trial and appellate ju dgments dealing with the events
underlying the dispute. The situation isnot the same for positions adopted
by the ICTY on issues of general international law whichdo not lie within
the specific purview of its jurisdic tion and, moreover, the resolution of
which is not always necessary for de ciding the criminal cases before it.”100
2. Inadmissibility of the Documentary Materials Presented by the Applicant
143. In this Section, the Responde nt will demonstrate that the documents presented in
Annexes to the Memorial are not admissible, ei ther because they are not relevant to the
specific subject matter of this case, or because they do not have a probative value which
would be recognized by the previous practice of the International Court of Justice.
A. The Documents Presented by the Applicant are not Relevant in This Case
144. Among the several sources of evidence presented by the Applicant in this case, the
witness statements have the leading role: a ltogether 433 statements have been annexed
to the Memorial. The vast majority of these statements contain the alleged experiences
of the Croatian citizens who lived on the territory of the Republic of Srpska Krajina. At
this point, the Respondent will not challenge the veracity and the formal shortcomings
of these documents, which will be done below. The aim of this argument is to show that
the contents of these statements are not relevant for proving genocide.
99
100bid., para. 223.
Ibid., para. 403.
63145. Indeed, only a small number of 433 statem ents contain direct knowledge about the
offences that could be seen as the actus reus element of the crime of genocide. Any one
of the annexed documents can be taken as an example. The witness statement of MK
(annex no. 1) contains the names of Serbs w ho represented the local administration in
the village of Tenja. He only heard that one extremist killed several Croats, but without
any personal and direct knowledge of that. No crime that constitutes an act of genocide
101
has been confirmed by this document.
146. Witness RJ (annex no. 2) described his arrest in Tenja, his imprisonment in Borovo Selo
and torture that he had suffered during the interrogation by the local Serbs. He knows that
102
one person was killed, although he did not see this. The so-called witness statement of
IK (annex no. 3) is actually a detailed record of his persecution by the Croatian police for
participation in the Yugoslav People’s Army (JNA) till 18 Febr uary 1992. He was a
professional JNA officer of Croatian nationality. Several times in this document he denies
that the JNA committed crimes against civilians in Eastern Slavonia. 103The statement of
JP (annex no. 4), recorded by the Croatian Police Department, contains a list of members
of the Serb forces in Tenja and no information of crimes that could be determined as acts
104
of genocide. This short review of the first four witness statements can be continued
throughout Annexes to the Memorial.
147. The same can be concluded regarding ot her documents that are annexed to the
Memorial, as military documents or statements of the high-level Serbian and Yugoslav
officials: not one of them contains facts that provide proof establishing the legal
elements of the crime of genocide.
148. The connection between the al legations contained in the Memorial and the attached
documents are also highly tenuous; very ofte n the allegations are not supported by the
contents of the submitted documents. Sometimes no evidence for some assertions has
been submitted. For example, no evidence has been furnished in support of the
allegations concerning what occurre d in the villages of Antin and Ćelije, described in
paragraph 4.17 of the Memorial, nor for the al leged killing of 58 Cr oat civilians in the
village of Aljmaš, mentioned in paragraph 4.18 of the Memorial. Indeed, in many cases,
101Memorial, Annexes, Regional Files, Vol. 2, Part I, Eastern Slavonia, annex 1, p. 21.
102Ibid., annex 2, p. 22.
103Ibid., annex 3, p. 24.
104Ibid., annex no. 4, p. 29.
64 the documents submitted by the Applicant provide information that contradicts the
allegations made. This is particularly apparent in relation to the role of the JNA at the
Croatian battlefront. 105 Sometimes the contents of the attached documents do not even
relate to the assertions made by the Applicant.
149. The Respondent concludes that the documents submitted by the Applicant, particularly
the witness statements, are not relevant for the subject matter of this case.
B. The Applicant’s Witnesses are not Disinterested in the Outcome of This Case
150. In the case concerning Military and Paramilitary Acti vities in and ag ainst Nicaragua
the Court observed that
“In the general practice of courts, two forms of testimony which are
regarded as prima facie of superior cr edibility are, first the evidence of a
disinterested witness – one who is not a party to th e proceedings and
stands to gain or lose nothing from its outcome - and secondly so much
106
of the evidence of a party as is against its own interest.”
151. The Respondent considers that this approach is particularly applicable in a case
concerning the conflict as serious as the Cr oatian civil war. The great reserve a court
should have as to the probativ e value of statements from witnesses who were involved
in the conflict in the former Yugoslavia has already been affirmed by the ICTY: “[M]ost
witnesses sought to tell the Chamber what they believed to be the truth. However, the
personal involvement in tragedies like th e one in the former Yugoslavia often
consciously or unconsciously shapes a testimony.” 107
152. It is obvious that the witnesses whose statements have been submitted by the Applicant
are not disinterested in this case. Most of them have been considered as victims of
different war crimes, and most of them expect the Applicant State, as their parens
patriae, to obtain reparation on their behalf. Th e assertions based on the statements of
these witnesses should be confirmed by ot her impartial and convincing sources of
evidence. Without that confirmation, their probative value is seriously undermined.
105For more details see Chapter VI, paras. 578-606.
106ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 43, para. 69.
107ICTY, Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 15.
65C. Witness Statements do not Fulfill Minimum Evidentiary Requirements and are
Accordingly Inadmissible
153. A large majority of the witness statements submitted as evidence with the Memorial do
not fulfill minimum evidentiary requirements, as they are either not signed, or it appears
that they were not taken by an authorized domestic organ or in a procedure that would
fulfill minimum procedural safeguards.
154. Firstly, none of the 433 written statements contai ns either an oath or a promise that the
108
truth has been stated, in any recognizab le solemn form of Common or Civil Law. In
some statements, it is even explicitly noted that a witness did not make an oath (see, for
example, annexes nos. 1, 7, 8, 12, 23, 194, 195, 199, 200, 204). 109
155. But the problem is not only with lack of oath or solemn promise. Originally, only English
translations of the statements were submitted – and these copies did not reveal a most
consequential shortcoming. When copies of thC eroatian originals were also submitted to the
Court, some fundamental defects became evident. When one takes a look at the Croatian
originals, it becomes apparent that there are problems even with the most elementary
requirements of authenticity: 332 out of 433 statements annexed to the Memorial do not
contain even the signature ofthe person who allegedly madethe statement! The following
statements do not contain the siga ntures: annexes nos. 1,2, 4, 5, 6, 7, 8,9, 10, 12,13, 14, 15,
16, 17, 18, 19, 20, 21, 22, 232 , 4, 25, 26, 27, 28, 30,32, 33, 35, 36, 38, 3, 40, 41, 42, 43, 44,
45, 47, 49, 50, 51, 52, 53, 545 , 7, 58, 59, 60, 62, 66,67, 68, 69, 70, 72, 7, 75, 76, 77, 81, 85,
86, 87, 88, 89, 91, 93, 96, 98, 99, 100, 101, 103, 105, 106, 108, 109, 110, 112, 113, 114, 115,
116, 117, 118, 120, 121, 125, 127,128, 130, 137, 138, 140, 142, 143, 144, 145, 146, 148,
151, 152, 153, 154, 155, 156, 157, 15 7a, 157c, 171, 172, 17 5, 177, 178, 179, 180, 182, 183,
184, 185, 187, 188, 189, 190, 191,192, 193, 194, 195, 201, 202, 205, 206, 207, 208, 209,
210, 211, 212, 213, 214, 215, 217,218, 221, 242, 243, 244, 245, 246, 247, 248, 249, 250,
251, 252, 253, 254, 255, 256, 257,258, 259, 260, 262, 263, 264, 265, 266, 267, 268, 269,
108The practice of submitting affidavits have been recoby the International Court of Justice. The affidavit is a
sworn written statement used mainly to support certain applicaitons and, in some circumstances, as evidence in the
Common Law court proceedings. The person who makes the affidavit must swear or, at least, affirm that the contents
are true before a person authorized to take oaths in respecotf the particular kind of affidavit. The expression “affirm”
means that a person who makes the affidavit must promise in solemn form to tell the truth (Elizabeth A. Martin (ed.),
A Dictionary of Law, Oxford University Press, Fifth Edition, pp . 18, 19). However, not one of the 433 written
statements, submitted by the Applicant in this case, fulfils the above mentioned requirements of affidavit.
109It is likely that the term “oath” should be understood actually as the solemn promise defined by the SFRY
Criminal Code, and not in the sense of the Common Law criminal procedure.
66 270, 271, 272, 275, 276, 277, 278, 279, 281, 282,282b, 283, 284, 285, 286, 287, 288, 289,
290, 291, 292, 293, 294, 295, 296,338, 339, 340, 341, 342, 343, 344, 345, 346, 348, 349,
350, 351, 352, 353, 354, 356, 357,358, 360, 361, 366, 368, 369, 370, 371, 372, 373, 374,
375, 377, 378, 379, 380, 381, 382,383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393,
395, 397, 398, 429, 431, 432, 433,434, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446,
447, 448, 449, 450, 451, 452, 453,454, 455, 456, 458, 459, 460, 461, 462, 463, 464, 465,
468, 469, 471, 472, 473, 476, 477,478, 481, 482, 483, 484, 485, 486, 487, 488, 489, 490,
491, 492, 493, 494, 495, 496, 497,498, 499, 500, 501, 502, 503, 504, 506, 507, 508, 509,
510, 511, 512, 514, 515, 5165 ,18, 519, 521, 522, 523, 52,4525 and 526.
156. Furthermore, a lot of statements were not taken by a person authorized by the Croatian
domestic rules to do it. In 154 out of 433 statements it is not indicated who was a person
or a body which took the statement. 110In some of the annexe s it is noted that the
statement was taken by a „Court Council“, w ithout any information about the court. 111
The statement submitted in annex no. 19 was taken by the “Church”, while annex no. 84
was taken from a „video tape“by an unknown person. In 209 out of 433 statements, the
witness statements are actually the official records of the police interrogations, which
cannot be used as evidence in cases before the domestic courts, including in Croatia and
Serbia. 112Moreover, 161 out of 433 statements do not contain a signature of a person
who allegedly took a statement. Annexe s nos. 3, 71, 95, 133 and 134 are not supplied
with the copies of the original statements and consequently, they cannot be checked.
157. Thus, the witness statements submitted by the Applicant do not fulfill the elementary
requirements to be treated as evidence admissible before the court of law. Consequently,
110
This is a case in annexes 1, 5, 6, 7, 8, 10, 21, 23, 28 , 29, 30, 31, 33, 36, 38, 41, 45, 46, 48, 49, 50, 52, 54, 55,
57, 58, 59, 60, 61, 66, 70, 72, 74, 76, 77, 80, 81, 82, 83, 86, 88, 90, 93, 96, 98, 99, 102, 105, 107, 111, 114, 117,
127, 129, 130, 131, 135, 136, 138, 139, 140, 141, 142, 143, 146, 147, 149, 150, 151, 155, 157a, 157c, 176, 180,
185, 194, 195, 196, 207, 208, 209, 210, 245, 247, 248, 249, 250, 251, 258, 259, 260, 261, 263, 266, 267, 268,
269, 270, 271, 273, 275, 279, 281, 282, 282b, 285, 287, 288, 290, 291, 292, 346, 347, 348, 353, 354, 355, 356,
357, 362, 363, 371, 372, 383, 386, 389, 393, 398, 429, 430, 431, 432, 434, 435, 436, 437, 438, 442, 443, 444,
447, 468, 474, 475, 480, 493, 506, 509, 510, 514, 518, 522.
111For example, compare translations of annexes 6, 7, 10 & 23 with the copies of their originals.
112This is a case in annexes 2, 4, 9,11, 13, 14, 15, 17, 18, 22, 24,25, 32, 35, 39, 40, 42, 43,44, 47, 51, 53, 62, 63, 67,
68, 69, 73, 85, 87, 89, , 7, 101, 104, 106, 108, 109, ,12, 113, 116, 118,119, 120, 121, 122, 125,126, 137, 145,
148, 152, 154, 170, 171,172, 173, 174, 175, 177,178, 179, 181, 182, 183, 184, 186, 187, 188,189, 190, 191, 192,
193, 198, 201, 202, 205,206, 212, 213, 214, 215,216, 217, 218, 221, 243, 244, 246, 252, 253,254, 255, 256, 257,
262, 264, 276, 277, 278,283, 284, 286, 289, 293,294, 295, 296, 339, 340, 341, 342, 343, 344,345, 349, 350, 358,
368, 369, 370, 373, 374,375, 377, 378, 379, 380,381, 382, 385, 387, 388, 390, 391, 392, 394,395, 396, 397, 433,
439, 440, 441, 445, 446,448, 449, 450, 451, 452,453, 454, 455, 456, 457, 458, 459, 460, 461,462, 463, 464, 465,
466, 467, 469, 471, 472,473, 476, 477, 478, 481,482, 483, 484, 485, 486, 487, 488, 489, 490,491, 492, 494, 495,
496, 497, 498, 499, 500, 501, 502, 503, 511, 5,13, 515, 516, 519, 520, 521, 523, 524, 525, 526.
67 it becomes clear that a factual findings in a case before the International Court of Justice
cannot be based on documents having such elementary shortcomings. In Serbia’s
submission, the said witness statements are inadmissible in the current proceedings.
158. Having in mind the previous analysis of the formal defects of the submitted documents,
one could suppose that the Applicant did not want to submit them in the form of reliable
source of evidence, but merely wanted to inform the Cour t about the witnesses which
113
have been proposed to testify directly be fore the Court at the oral proceedings. Such
an approach, if that was the intention of th e Aplicant, did not take into consideration
whether the Court has practical possibility to hear 433 witnesses.
D. Press Reports and Extracts from Books can only be treated as Additional Materials
159. The Applicant has also submitted to the Court 30 press comments (Volume 4, annexes
16–46), 6 military press comments (Volume 4, annexes 147-152), as well as the extracts
from three books (Volume 5) all of them as secondary sources of evidence, which
should „confirm or supplement the primary material“. 114
160. According to the previous practice of the C ourt, press articles and extracts from books
have to be treated with great caution. The Court said that
„even if they seem to meet high standards of objectivity, the Court
regards them not as evidence capable of proving facts, but as material
which can nevertheless contribute , in some circumstances, to
corroborating the existen ce of a fact, i.e., as illustrative material
additional to other sources of evidence.” 115
161. However, the press articles and the extracts from the books presented by the Applicant
in this case cannot contribute to any other source of evidence, for the simple reason that
documents which should be treated as “the primary material”, i.e., the witness
113Indeed, the intention of the Applicant cannot be fully understood from the short notice given in paragraph
1.18 of the Memorial.
114Memorial, para. 1.20.
115ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 40, para. 62.
68 statements, the military documents and the statements of the high-level officials, do not
contain any fact that can confirm the existe nce of the required legal elements of the
crime of genocide.
162. Furthermore, the Respondent points out that even the press reports and extracts from the
books by themselves do not offer any information to the Court on the existence of the
required legal elements of the crime of genocide.
E. Provenance of Maps, Photos, Lists and Graphics Presented in the Memorial is
Unknown
163. Throughout the text of the Memorial and its annexes, the Applicant uses some maps,
photos, lists and graphics. All of them contain certain information and assertions, which
are not without significance fo r the subject matter in this litigation. In the most cases,
the presented material is without information on its provenance.
164. Not one of the presented photos contains info rmation on its author or circumstances in
which it was created. 116One of them deserves a partic ular attention: the photo on the
Plate no. 13 contains the following note:
“Slobodan Milošević, President of FRY, and Željko Ražnjatović Arkan,
Serbian parliamentarian and paramilitary leader, at the funeral of
Radovan Stojičić Badža, Serbian Deputy Minist er of Interior and liaison
between Serbian paramilitaries in Croatia and Serbian leadership,
117
Belgrade (FRY), April 1997.“
165. The source of this photo was not presented to the Court. Furthermore, it is highly
questionable how the conclusion of the liai son between the Serbian paramilitaries in
Croatia and the Serbian leadership in Belgrade can be determined by the positions of
these two persons at a funeral which occurred two years after the end of all hostilities in
Croatia.
116See Memorial, Annexes, Vol. 3, Sections 11–18.
117Memorial, between pages 114 and 115.
69166. Also, the Memorial does not contain info rmation on the sources of the following
materials:
- some lists (for instance, the ones presented in Volume 2, annexes
164 and 240);
- the maps with dates of occupati on of Croatian towns and villages
(presented in Volume 3, Section 5);
- the graphic called „Serbian param ilitary units“ (Volume 3, Section
6, no. 7);
- the graphic called „Camps and pr isons under the authority of the
JNA and the Serbian paramilitary formations“ (Volume 3, no. 7.6);
- the 94 graphics of the ethnic structure of Croatian towns and villages
before the conflict,presented in the Volume2 of the Memorial.
Under these conditions, the Respondent is not in the position to answer to the data
presented in these annexes.
167. Yet, in some cases, the sources of information presented in the Annexe s have been provided,
but the Court should note that tehse sources are always Croatian official bodies. For instance,
the graphic called „Mass graves“(Volume 3, Seo cti7) and the „Lists of detained and missing
persons“(Volume 6, Appendices) were preparedby the Office for Detained and Missing
Persons of the Croatian Government, whilethe list of „Damage toCultural Monuments on
Croatian Territory“ (Volume 5, Appendix 7) was p erpared by the Ministry of Culture of the
Republic of Croatia. These sources cannot be trea ted as impartial in this case, and for that
reason, their probative value is problematic. C onsequently, these materials, prepared by the
Applicant itself, particualrly for the reason of this caseould be taken with great reserve.
F. Conclusions
168. The Respondent contests the admissibility of all sources of evidence submitted by the
Applicant for the following reasons:
1) The witness statements submitted by the Applicant are not reliable
evidence before the Court. None of the 433 statements contains
either the oath or the promise that the truth has been stated, in any
70 recognizable solemn form of the Common or Civil Law legal
system; the 332 statements are not signed, while in many cases, it is
not visible who was a person or body who took the statements.
2) Additionally, most of the witnesse s whose statements have been
submitted to the Court are obviously persons with a strong interest
in this case. That is an addi tional strong reason why the probative
value of their statements is in doubt.
3) Furthermore, most of the submitted witness statements, as well as the
copies of the military documents and the press-statements of the high-
level Serbian and Yugoslav officialsd ,o not contain evidence on which
the legal elements of the crime of genocide can be established, i.e., all
of these documents are irrelevant for the subject matter of this case.
4) In the situation of the absence of any relevant direct and convincing
peace of evidence, the submitted press-reports and the extracts
from the books cannot contribute to corroborating the existence of
any directly established fact. Moreover, they do not contain by
themselves any relevant information for this case .
5) Provenance of some materials pres ented in the Memorial (maps,
photos, lists and graphics) is unknown.
6) The materials prepared particularly for the purposes of this case by
the Office for Detained and Mi ssing Persons of the Croatian
Government, as well as by the Mini stry of Culture of the Republic
of Croatia, cannot be treated as impartial. The allegations contained
in these documents must be proved; they cannot be treated as
reliable evidence by themselves.
3. The Respondent’s Approach to the Methods of Proof
A. GenerA alpproach
169. The Respondent does not accept that the relevant facts in this case of exceptional gravity
can be established by the documents which do not fulfill the elementary conditions of
the methods of proof that have so fa r been recognized by the practice of the
International Court of Justice.
71170. On the other hand, the Respondent is aware th at the facts about th e armed conflict in
Croatia, as well as about horrible crimes th at were committed in it, are well known
today, first of all, by the judgments of the International Criminal Tribunal for the former
Yugoslavia, and additionally, by many independent expert sources. All of these
documents will be at the disposal of the parties in the further proceedings.
171. In order to assist the Court in the fact-f inding process in this case, the Respondent
declares its willingness to discuss reaching an agreement on relevant facts with the
Applicant State. However, that agreement ca nnot be limited only to the facts related to
the suffering of the Croats during the conflict that is the subject matter of the present
proceedings, but should also include the facts relevant for the suffering of the Serbs in
Croatia.
172. Leaving aside the obvious lack of any reliab le evidence presented in Annexes to the
Memorial, the Respondent will continue its presentation in Part II of this Counter-
Memorial with an examination of the Applicant’s assertions, mostly for the reasons of
the historical truth. This approach does not mean that the Respondent State in any way
accepts the reliability of the documents annexed to the Memorial.
173. Further in this Section, the Respondent will express its view regarding the evidence on
which its counter-claims will be based. Addi tionally, some new documents which have
appeared in the meantime, after the filing of the Memorial, will also be discussed in this
Section.
B. Admissibility of the ICTY Documents
174. The Respondent submits that the Court’s appro ach to the methods of proof in the case
concerning the Application of the Genocide C onvention (Bosnia and Herzegovina v.
Serbia and Montenegro) should be followed in the present case, as well.
175. Having in mind that all the ICTY judgments that have so far been rendered in connection
with the Croatian civil war are related to the crimes against the civilians and individuals
of the Croatian nationality (namely, Martić (RSK case) , IT-95-11-T, Trial Chamber
Judgment, 12 June 2007; Mrkšić et al. ( Ovčara case), IT-95-13/1-T, Trial Chamber
72 Judgment, 27 September 2007;Strugar (Dubrovnik case), IT-01-42-A, Appeals Chamber
Judgment, 17 July 2008, and Jokić (Dubrovnik case), IT-01-42/1-A, Appeals Chamber
Judgment, 30 August 2005), it is for the Applicant, and not for the Respondent, to decide
which facts, if any, willbe useful to support its allegations in this case.
176. The Respondent observes that the crimes committed against the Serbs in Croatia are
subject of three cases befo re the ICTY. The first one is the case no. IT-02-62,
Prosecutor v. Janko Bobetko (Medak Pocket). The charges against former Croatian
Minister of Defense contained following crimes: persecution on political, racial and
religious grounds; murder; plunder of public or private property; wanton destruction of
cities, towns or villages. The Croatian authorities failed to arrest and transfer General
Bobetko to the ICTY. On 24 June 2003, the Tribunal rendered the Order Terminating
Proceedings because Accused died. 118Another case is related to the same crimes. It is
the case no. IT-04-78, Prosecutor v. Ademi & Norac. Due to the ICTY completion
strategy, this case was transferred to the Croatian authorities in 2005. The Zagreb
District Court acquitted General Ademi of all charges, while General Norac was
sentenced to seven years’ imprisonment. 119
177. The next case is the Prosecutor v. Gotovina et al. (Operation Storm), no. IT-06-90, in
120
which the trial is under way. The Respondent understands that this case is very
important for the relevant issues of the cu rrent proceedings before the International
Court of Justice. At this st age of proceedings, the Respondent will found its claims on
the ICTY transcripts from the above- mentioned case, which contain witness
testimonies before the Trial Chamber. These testimonies are related to the first-hand
experiences of impartial pers ons who were in the direct position to get knowledge
about the key events during and after the operation Storm. All of them have been
cross-examined. Furthermore, the Respondent will rely upon some relevant documents
that have been admitted as evidence in Got ovina et al. case. All of them were made
immediately after the operation Storm by the international monitoring missions
(UNMO and ECMM).
118http://www.icty.org/case/bobetko/4.
119http://www.icty.org/x/cases/ademi/cis/en/cis_ademi_norac.pdf.
120http://www.icty.org/case/gotovina/4.
73C. Other Relevant Documents
178. Additionally to the ICTY documents which can evince the illegal acts of the Croatian
Government against the Serbian national gr oup as such, the Respondent will also use
other relevant documents which probative value have so far not been contested.
179. First of all, the Respondent’s presentation will be based on the statements of the Croatian
high State officials which contain their attitudes towards the Serbs in Croatia and from
which, the intent to destroy, in whole or in part, the Serbian national and religious group,
121
as such, can be inferred. Some of those statements were directly quoted in Croatian and
122
international press-reports shortly after they had been made, while others were recorded
in the official secret documents which later became public and thus, became a part of a
publication readily available.Among them, the so-calledBrioni minutesfrom the meeting
of the Croatian State and military leadership onthe Brioni Island before the beginning of
the operation Storm are of the exceptional importan ce. The words of the Croatian
President Franjo Tu đman at the meeting on Brioni c ontained a direct order for the
destruction of the Serbianpopulation in the Krajina. 123
180. The Respondent will also support its claims w ith reliance on expertreports of independent
and non-governmental bodies, the reliability ow f hich normallycannot be contested. One of
those documents, related to the first investig ation of the criminal consequences of the
operationStorm, is a report of the Croatian Helsinki Committeefor Human Rights, a non-
governmental organization fromZagreb, whose impartiality cannot be easily contested by
124
the Applicant. Another one is a report prepared by the Krajina Serbs Centre for
Collecting Documents and Information “Verita s”, which credibility was recommended by
the UN Liaison Office in Belgrade, the Inte rnational Committee of Red Cross and the
ICTY. Due to its enormous efforts and high standards in collecting information, this
organization is in possession of the most reliable data concerning the victims among the
members of the Serbian nationalgroup in Croatia from 1991 to 1998. 125
121
See Public Statements which Directly Provoked Perpetrators to Commit Genocide against the Serb National
Group in Croatia (Annex 51).
122For example, see Annex 56.
123See Chapter XIII, paras. 1195–1204.
124See Annex 61.
125See Annex 62 and Annex 63.
74181. Furthermore, the Respondent will produce to the Court a number of witness statements
given before the national courts, as well as some press-articles from the Croatian
sources which contain unfavorab le facts to the Croatian Government concerning the
relevant matter of this case, but merely as illustrative materials additional to the other
sources of evidence.
182. The Respondent’s general position towards the probative value of the factual findings of
the judgments before the Croatian domestic courts will be particularly explained below.
183. Finally, Chapter V of this Counter-Memorial, “The analysis of the historical and
political background presented in the Memori al”, is mainly based on the facts from
historical sources which form part of publications readily available. The Respondent has
carefully considered this issue using Croatian and inte rnational historical books, essays
and reports, wherever it was possible.
D. Overview of the Cases before the Croatian National Courts
184. According to the list of the Croatian Chief State Attorney, 126 altogether 1.993 persons
were indicted for war crimes and genocide before the Croatian domestic courts since the
end of the war until 1 September 2004. There is no doubt that the number of prosecuted
persons has increased in the meantime. Am ong them, more than 200 persons were
indicted for genocide. All of the accuse d charged for genocide are Serbs by their
national origin.
185. According to the review made by “Veritas”, 70 Serbs in total we re convicted for the
crime of genocide until August 2008. Only 8 Serbs convicte d for genocide participated
directly at the trials, while all the others were tried in absentia. The same rate is present
concerning all war crime trials: for example, 90 per cent of all Serbs convicted for war
crimes before the Croatian courts in 2003 were also convicted in absentia. 127
126Available at http://www.veritas.org.rs/spiskovi/procesuirani/procesuirani.php.
127OSCE Mission to Croatia, Supplementary Report: War Crimes Proceedings in Croatia and Findings from
Trial Monitoring, 22 June 2004, available at
http://www.osce.org/documents/html/pdftohtml/3165_en.pdf_s.html.
75186. It is an unfortunate truth that tehconflict and tragedy that marked the last decade in the former
Yugoslavia yielded a distorted mindset thattainted many people and many institutions – and
this particularly applied to Croatian courts. Beianrg in mind that the Applicant, in the further
proceedings, may decide to use some findingsof the judgments of the domestic courts, the
Respondent will challenge theircredibility for two reasons: firstly, on a substantive level,
Croatian law applies a definition of the crimeof genocide which is not fully in accordance
with the 1948 Genocide Convention, and secondly, o anprocedural level, the trials before the
Croatian courts have been ca hracterized by a lack of ipartiality and fairness.
1. Definition of genocide and its consequence to the applicability of factual findings of the
Croatian courts’ judgments in this case
187. The Croatian Criminal Code largely reiterat es the definition of genocide contained in
Article 2 of the Genocide Convention. However, it expands the Convention’s definition
128
to include “forcible population displacement.” It leads to paradoxical convictions
which are not in accordance either with the recent practice of the Court or with the
practice of the ICTY and ICTR. This is th e reason why the findings of the Croatian
domestic judgments are not relevant for the cases before the international courts.
188. For instance, the Croatian Supreme Court upheldthe Osijek DistrictCourt conviction of 4
Serbs for genocide ( Koprivnacase, no. I Kz-865/01-3, Judg ment of 14 January 2004).
The trial chamber found that the defendants, “together and in agreement with unknown
members of Serb paramilitary groups, with the intention to render life of Croats and other
non-Serbs impossible, participated in the arrest and transport of 23 Croats to the ‘free’
129
territory of Croatia.” A lack of any of theactus reusof the crime of genocide contained
in Article II of the Genocide Conventionin the above-cited conviction is obvious.
189. The same court sentenced Mirko Kozlina to 10-year-imprisonment for genocide for the
following acts:
“In spring 1992, after he had moved in to the house of Dragica Culjak...
and seized all her property... he ex pelled Dragica Culjak from her house
128
129The Basic Criminal Code of the Republic of Croatia adopted in April 1993, Article 119.
OSCE Mission to Croatia, Background Report: Domestic War Crime Trials 2004, 26 April 2005, p. 21,
available at http://www.osce.org/documents/html/pdftohtml/14056_en.pdf_s.html.
76 threatening her with weapons. On 3 October 1992, the defendant, who
was armed... threatened Dragica Culjak and the family of Daniel Toth to
seize their tractor and a trailer. Af ter that, went to the vineyard and
threatened to throw a hand grenade against them. At an undetermined
date in October 1993, ... the defendant threatened the mentioned family
with the following words: ‘We will slaughter all you Croats and expel
you from your houses’, ... whilst Drag ica Culjak moved out from Ilok
and emigrated to Germany.” (The Osijek District Court, Kozlina case, no.
K 50/96-30, Judgment of April 1999). 130
190. How little useful for the purpose of this case are the factual findings of the Croatian
domestic courts is bestvisible from the Judgment of the Sisak District Court no. K-15/96
dated 26 September 1996 (Velemir case), the full translation of which is annexed to this
131
Counter-Memorial.
191. In its 2004 Report on the Croatian Domestic War Crime Trials, the OSCE Mission to
Croatia rightly concludes that “[t]he crimes prosecuted as Genocide before Croatian
courts were not of the gravity usually associat ed with verdicts of international tribunals
ascribing genocidal intent. A qualification of the ‘expulsion cases’ as constituting war
132
crimes appears more appropriate.”
2. Lack of impartiality and fairness
192. The lack of impartiality and fairness in th e prosecution and trials in genocide and war
crime cases before the Croatian national courts is well documented. In its 2005 War
Crime Trials Report, the OSCE Mission to Croatia observes as follows:
“Numerical parity in te rms of the ethnic origin of defendants is not
required. However, the significant disproportion between the numbers of
Serbs and Croats charged with war crimes as well as differences
observed in charging, including the prosecution of members of the armed
130Ibid., footnote no. 98.
131See Annex 33.
132OSCE Mission to Croatia, Background Report: Domestic War Crime Trials 2004, 26 April 2005, p. 22,
available at http://www.osce.org/documents/html/pdftohtml/14056_en.pdf_s.html.
77 forces for common crimes, support a conclusion that ethnicity continues
to play a role in war crime proceedings. As of the end of July 2006, the
Mission is aware of a total of 4 final convictions of Croats for war crimes
committed against Serbs since 1991, while there are hundreds of
convictions against Serbs for cr imes against Croats. Lack of
accountability, criminal or otherwise, for crimes and attempts to hide war
crimes remains a concern, particular ly for possible crimes by the armed
forces. Prosecutors continue to encounter difficulties in obtaining
sufficient evidence and witness testimony to prosecute certain crimes.” 133
193. This concern can also be found in other re ports of the OSCE Monitoring Mission to
Croatia regarding the war crime trials. Fu rthermore, in its 2004 report, the OSCE
Mission expressed its concern in the credibil ity of the Croatian local court trials. The
report stated:
“The extent and intensity of witnes s intimidation observed by courts and
the Mission, even when the trial was moved out of the community where
the crimes occurred, support a rebuttable presumption that fair and
professional war crime proceedings may not be possible in communities
heavily affected by the conflict, such as the Gospic County Court. It
appears prima facie unlikely that witnesses who live in such small
communities testify in those same communities without exposing
themselves to outside pressure. Si milarly, it seems also likely that
prosecutors and judges living in the community might equally be
exposed to pressure. This observati on warrants consideration of whether
some local courts are really capa ble of conducting credible war crime
proceedings, including in several cases in which cases have been up and
down to the Supreme Court multiple times.” 134
133OSCE Mission to Croatia, Background Report: Domestic War Crime Trials 2005, 13 September 2006, p. 29,
available at http://www.osce.org/documents/mc/2006/09/20668_en.pdfnnex 32); also see the Federal Court of
Australia, Snedden case, Appeal Judgment of 2 September 2009 (Annex 34).
134OSCE Mission to Croatia, Background Report: Domestic War Crime Trials 2004, 26 April 2005, p. 41, point. 4;
available at http://www.osce.org/documents/html/pdftohtml/14056_en.pdf_s.html.
78194. The same report added: “Trial court findings that are contrary to the evidence, while
135
procedural mistakes, can also indicate lack of impartiality.”
195. The double standard of some Croatian judge s regarding the treatment of defendants
depending on their national origin will be demonstrated by the following examples. In
the statement of reasons in the verdict against Svetozar Karan, a Serb, the Gospi ć
District Court found that the defendant “in th e last eighty years, together with his
ancestor, was a burden” to the Croatian people and that the case involved the return of
criminals [i.e. witnesses] to the Republic of Croatia “who performed genocide against
Croats, not only during the war ... but for mo re than 500 years, since the arrival of
Turks, when they came together with the Turks and destroyed Croats.” 136
196. On the other side, in the Lora camp case before the Split Dist rict Court, involving 8
Croats, the president of the panel of judge s on more than one occasion shook the hands
of the defendants when they entered the courtroom. The judge suggested to a witness
who was unable to express clearly what he ha d witnessed that he should testify that he
did not remember rather than giving conf using answers. Furthermore, the judge
expressed his opinion that the Serb witnesses must travel to Croatia and rejected their
concerns related to personal security alt hough they reported that they had received
137
threats.
197. Paradoxically, the Croatian Ministry of Justic e, in its submission to the ICTY, bluntly
confirms that ethnic differences in the criminal proceedings are “readily
understandable” given the “open wounds of the war”. 138
135Ibid., p. 42, point 5.
136Ibid., p. 41, footnote 175.
137OSCE Mission to Croatia, Supplementary Report: War Crimes Proceedings in Croatia and Findings from
Trial Monitoring, 22 June 2004, p. 13, point 3, available at
138p://www.osce.org/documents/html/pdftohtml/3165_en.pdf_s.html.
ICTY, Ademi & Norac, IT-04-78, Submission of the Republic of Croatia to the Court’s Order for Further
Information on Certain Jurisprudential Aspects of the Croatian Law in the Context of the Prosecutor’s Request
under Rule 11bis, February 2005, pp. 4-5; quotation from OSCE Mission to Croatia, Background Report:
Domestic War Crime Trials 2004, 26 April 2005, p. 40 & footnote 174, available at
http://www.osce.org/documents/html/pdftohtml/14056_en.pdf_s.html.
79198. A lack of some procedural requirements also contributes to the conclusion that the trials
against Serbs before the Croatian domestic co urts have not been conducted in a fair
manner. Thus, the OSCE Mission to Croatia 2005 Report observes:
“Linked to the in absentia cases against Serb defendants is the practice of
courts appointing one defense counsel to represent multiple defendants,
up to 5 or 10, in the same case. Co mmon sense indicates that the quality
of representation provided to any one defendant is compromised by these
additional and conflicting responsibilities, casting doubt on the validity
of any convictions that might result. Since the defendants are not present
they cannot waive these conflicts of interest. A number of cases on
appeal at the Supreme Court indicate that this practice has been used by
139
several courts over a period of years.”
199. For all above-mentioned reasons, the Respondent submits that the factual findings of the
judgments in the proceedings before the Croatia’s domestic courts cannot be admissible
in the present case.
E. The Concealed Military and Police Documents of the Applicant State
200. In the ICTY case Prosecutor v. Gotovina et al., the Office of the Prosecutor requested the
Croatian Government to produce the artillery diaries of the Croatian military units in the
operationStorm (the so-called “Artillery Document Request” ,)as well as the special police
documents applied in the same operation (“R quest for Assistance no. 739”). These requests,
dated 15 May 2007 and 27 June 2007 respectively,v heanever been substnatially fulfilled.
201. In his address to the United Nations S ecurity Council made on 12 December 2008, the
ICTY Prosecutor Mr. Serge Brammertz pointed out that his Office
“continue[s] to seekaccess to key documents andarchives in the Gotovina
case. Over the past year and a half, these specific documents have been at
139OSCE Mission to Croatia, Background Report: Domestic War Crime Trials 2005, 13 September 2006, p. 29,
available at http://www.osce.org/documents/mc/2006/09/20668_en.pdf. Also, in another Background Report
dated 3 August 2007, the OSCE Mission to Croatia stated: “The appointment of counsel, while necessary, does
not by itself fulfill the State’s obtion to provide indigent defendantswith representation. Because that
representation must be effective, it is relevant assess the method and stan dards for appointment, the
performance of court-appointed attorneys, and supervision by the appointing courts. Most war crimes defendants
represented by court-appointed counsel are tried in absentia and are Serbs” (p. 40).
80 the centre of discussions with Croatia n authorities. After several failed
attempts to obtain these documents, at the request of the prosecution, the
Trial Chamber ordered Croatia to provide a detailed report specifying the
140
efforts undertaken to obtain the requested documents.”
202. In its report to the ICTY dated 14 July 2008, the Croatian Government submitted that
some of the documents referred to in the Artillery Document Request “may not or no
141
longer exist due to the conditions prevai ling at the time of Operation Storm.”
However, the ICTY Prosecution took the posi tion that the requested documents existed
and that the Croatian authorities were unwi lling to supply them and were concealing
them. The ICTY Prosecution also stated that the Croatian authori ties had not properly
142
investigated their whereabouts.
203. Although observed “various shortcomings in the investigations carried out by Croatia”,
the ICTY Trial Chamber I decided to give the Croatian Government an opportunity to
further investigate the whereabouts of the requested documents, and ordered Croatia “to
intensify and broaden its investigation and to provide the Prosecution with all requested
documents that it may find during the investigation.” 143
204. Nevertheless, the ICTY Sixteenth annual report dated 31 July 2009 concludes that
“since 2007, Croatia has continuously failed to hand over key military
documents related to Operation Storm. Moreover, progress was limited in
the investigation which the Court or dered Croatia to conduct into the
missing documents. The Office of the Prosecutor raised with Croatia
concerns about the focus, manner, and methodology of the investigation
144
conducted. The matter remains pending before the Chamber.”
140Available at http://157.150.195.168/sid/10029.
141ICTY, Gotovina et al., IT-06-90-T, Order in relation to the Prosecution’s Application for an Order pursuant to
Rule 54 bis, 16 September 2008, para. 7.
142
143Ibid., para. 6.
144Ibid., paras. 14, 16 & 17.
Sixteenth annual report of the International Tribuna l for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991,
31 July 2009, UN Doc. A/64/205 – S/2009/394, para. 65.
81205. Whereas the above-mentioned documents have been requested in the case against
General Gotovina and other Croatian military and police leaders of the operation Storm,
it is not difficult to conclude that the critical documents are also relevant to the counter-
claims of the Respondent in this case. For that reason, the Respondent reserves its right
to rely upon the artillery diaries of the Croatian military units and the special police
documents in the operation Storm, once they are public and available in the proceedings
before the ICTY. Otherwise, if the App licant decides not to produce the above-
mentioned documents to the ICTY or to produce them under the conditions of
confidentiality, the Respondent reserves its right to request the Court, in accordance
with Article 49 of the Statut e of the Court, to call upon th e Agent of the Applicant to
produce them in this case.
82PART II
8384 CHAPTER IV
APPLICABILITY OF THE OBLIGATIONS UNDER THE GENOCIDE
CONVENTION BETWEEN CROATIA AND THE FRY/SERBIA PRIOR
TO 27 APRIL 1992 AND PRIOR TO 8 OCTOBER 1991, RESPECTIVELY
1. Introduction
206. To a considerable extent, Croatia’s claims put forward in its Memorial draw on acts and
omissions that took place before 27 April 1992, some evengoing back to before 8 October
1991. Serbia submits th at these acts and omissions, what ever their lega l qualification,
cannot be used to establish Serbia’s responsibility fraches of the Genocide Convention
and that the Court cannot exercsie jurisdiction underArticle IX of the Genocide Convention
in that regard. To suprt its claim, Serbiarelies on two arguments:
(i) The essence of Serbia’s main argument can be put in simple and
straightforward terms: Acts and omissions that took place before 27
April 1992 cannot entail the responsibility of Serbia because Serbia
only came into existence on 27 April 1992 and was not bound by
the Genocide Convention at any time before that date;
(ii) In the alternative, Serbia submits that in any event, acts and
omissions preceding 8 October 1991 cannot be used to establish
Serbia’s responsibility for breaches of the Genocide Convention, as
Croatia itself only came into ex istence – and became bound by the
Genocide Convention – on 8 Octobe r 1991. Serbia submits that
Croatia cannot raise claims base d on facts preceding its coming
into existence.
207. These two arguments will each be dealt with in turn. In presenting them, Serbia draws
on fundamental principles gove rning State successi on, international legal personality,
the law of treaties and the jurisdiction of tis Court. It does so on the basis of the
Court’s jurisprudence which, after decades of uncertainty, has clarified complex issues
of statehood relating to the dissolution of the former Socialist Federal Republic of
Yugoslavia.
85208. In presenting these considerations, Serbia is mindful of the fact that the present
proceedings concern only a very limited part of the many legal issues arising from the
break-up of the SFRY. As the title of the case, carefully chosen by the Court, makes
clear, the present case is about a specific set of obligations a pplicable between two
specific subjects of international law; it c oncerns two States that only came into
existence in late 1991 and the late spring of 1992 respectively, and concerns alleged
breaches of one specific treaty, namely the Convention on the Prevention and Punishment
of the Crime of Genocide.
209. From these seemingly obvious statements follow two important consequences which
must be underlined.
210. First, only the obligations of Serbia and of Croatia, resp ectively, come within the ambit
of the Court’s jurisdiction. In particular, this is not a case about the c onduct of their
joint predecessor State, the SFRY.
211. Second, the Court’s jurisdiction only covers disputes that rela te to the interpretation,
application or fulfilment of the Genocid e Convention. Any finding on responsibility by
this Court in the present proceedings therefore must be based on the non-fulfilment of
obligations arising under the Genocide Convention. Consequently, and more
specifically, this is not a case about comp liance with customary obligations governing
questions of genocide, even where the trea ty-based prohibition and the customary law
prohibition of genocide are identical insofar as their content is concerned. The case at
hand is thus fundamentally different from the situation the Court was facing in the
Military and Paramilitary Activities case, where the Court wa s indeed entitled to find
violations of norms of customary law. 145
212. Serbia submits that in its attempt to broadenthe scope of the proceedi ngs before the Court,
Croatia has not always resp ected these restrictionsratione materiaeandratione personae.
145
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 93, at para. 174 et seq.
862. Acts and Omissions Preceding 27 April 1992 Cannot Entail the Responsibility of
Serbia in the Present Proceedings
A. General Considerations
213. The main thrust of Serbia’s argument that it cannot be held responsible before the Court
for acts and omissions preceding 27 April 1992. As is well known, that is the date on
which the Federal Republic of Yugoslavia (F RY) came into existence. As the Court
stated in its judgment of 18 November 2008, it is also the date on which the FRY
succeeded to obligations incumbent upon the former Socialist Federal Republic of
146
Yugoslavia (SFRY) under the Genocide Convention.
214. It will be recalled that during the preliminary objections phase of the present proceedings,
Serbia raised an objection ratione temporis, arguing that jurisdiction under Article IX of
the Genocide Convention did not extend to acts preceding 27 April 1992. In its judgment
of 18 November 2008, the Court considered that “the questions of jurisdiction and
admissibility raised by Serbia’s preliminary objectionratione temporis[to] constitute two
inseparable issues” 147and it held that Serbia’s objection ratione temporis “does not
possess, in the circumstances of the case, an exclusively preliminary character.” 148
215. At the present stage of the proceedings, theCourt is freed from the limitations imposed by
Article 79, para. 7 of its Rulesa,nd it is thus in a position tofully assess whether Croatia can
indeed rely on “facts that occurred prior tothe date on which the FRY came into existence
149
as a separate State, capabel of being a partyin its own right tothe Convention”.
216. While Croatia and Serbia disagree on the ques tion just identified, it should be stressed
that there is agreement on three crucial issues.
217. First, that the FRY/Serbia came into existence on 27 April 1992 and it did not continue
the personality of the former SFRY, but is one of several successor States of the SFRY.
146
ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118 ,
para. 117.
147Ibid., para. 129.
148Ibid., para. 130.
149Ibid., para. 129.
87218. Second, that the FRY/Serbia succeeded to the Genocide Convention, and that its
succession was effective from 27 April 1992. As is well known, during the preliminary
stage of the present proceedings, Serbia clam i ed to have acceded tothe Convention. It has
since taken due note of the Court’s finding on this point. Inits Judgment of 18 November
2008 on preliminary objections, the Court clar ified that the 1992 declaration “must be
150
considered as having had the effects of a declaration of succession to treaties”.
219. Following, in the Court’s view, “the 1992 declaration and Note [also] had the effect of a
notification of succession by the FRY to the SFRY in relation to the Genocide
Convention.” 151
220. The Court thus concluded that: “ from that date [i.e. 27 April 1992] onwards the FRY
would be bound by the obligations of a pa rty in respect of all the multilateral
conventions to which the SFRY had been a party at the time of its dissolution”. 152
221. Third, the former SFRY had been a contracting party to the Convention since 12 January
1951. As a consequence, the SFRY may well have incurred responsibility for breaches of
the Genocide Convention. However, the SFRY has ceased to exist. More importantly, for
the reasons set out above, itsconduct is outside the scopeof the presentproceedings.
222. In its Memorial and Written Statement, Croatia seems to have gradually accepted that
some explanation on the temporal aspect of its claims may be necessary. In an attempt
to circumvent the restriction ratione temporis, it has essentially invoked two arguments:
(i) Croatia claims that the applic ation of the Genocide Convention is
not limited ratione temporis – a matter said to be supported by the
Court’s judgment on the respondent’s preliminary objections in the
Case concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide Case (Bosnia
and Herzegovina v. Serbia and Montenegro);
and further,
(ii) Croatia argues that the Court should apply a principle of attribution
pursuant to which “a state in statu nascendi is responsible for
150Ibid., para. 111.
151Ibid., para. 117.
152Ibid. (emphasis added).
88 conduct carried out by its officials and organs or otherwise
under its direction and control”, largely supported by reference to
Article 10, para. 2 of the ILC's Articles on State Responsibility.
223. Serbia submits that neither of these claims is tenable. The following sections set out the
grounds for which they must fail. They also very briefly comment on a third potential
approach – identified by Judge Tomka, but not pleaded by Croatia – namely that Serbia
had succeeded into responsibility engaged by the former SFRY.
B. The Genocide Convention Does Not Apply Retroactively
224. In its Memorial and Written Statement, Croatia claims th at the Genocide Convention
applied between the parties since the beginning of the conflict. It presents this argument
in negative terms, arguing that “the app lication of the Genocide Convention is not
limited ratione temporis”. 153In the light of the above considerations, it is however clear
that in essence, it does not argue against a limitation ratione temporis. Instead, its
argument presupposes (even if this is not stated expressly) that Serbia should be bound
by the Convention with respect to facts that occurred before Serbia existed as a State
and before it became bound by the Convention by means of treaty succession. In effect,
Croatia’s argument – allegedly rejecting a temporal restriction – implies that the
Genocide Convention applies re troactively. It attempts to furnish support for this
argument by referring to statements found at para. 34 of the Court’s 1996 Judgment in
the Case concerning the Application of the Convention on the Preven tion and Punishment
of the Crime of Genocide Case (Bosniaand Herzegovina v. Serbia and Montenegro) , and
by warning against a time-gap inthe application ofthe Convention. 154
225. Serbia submits that these arguments provide no basis for the claim of retroactivity. To
demonstrate why this claim should be rejecte d, the international legal rules that govern
the question of retroactive treaty application will be examined (1.); potential instances
of retroactivity will be analysed (2, 3.), esp ecially in the case of new States (4.), and
finally, Croatia’s arguments based on the alleged “time gap” and the Court’s 1996
judgment will be addressed (5, 6.).
153
154Written Statement, para. 3.10.
See Written Statement, para. 3.10 et seq.; Memorial, para. 8.37 et seq.
891. The Presumption against Retroactivity
226. The question of a possible retr oactive application of any gi ven treaty is regulated by
Article 28 of the Vienna Convention on the Law of Treaties, which is generally
155
considered to have enshrined customary international law.
227. Article 28 of the Vienna Convention on the Law of Treaties provides:
“Article 28 Non-retroactivity of treaties
Unless a different intention appears from the treaty or is otherwise
established, its provisions do not bind a party in relation to any act or
fact which took place or any s ituation which ceased to exist before the
156
date of the entry into force of the treaty with respect to that party.”
The French version of the same article provides:
“Article 28 Non-Rétroactivité des Traités
A moins qu’une intention différente ne ressorte du traité ou ne soit par
ailleurs établie, les dispositions d’un traité ne lient pas une partie en ce qui
concerne un acte ou fait anté rieur à la date d’entrée en vigueur de ce traité au
regard de cette partie ouune situation qui avait cesé s d’exister à cette date.”
228. Article 28 provides a general rule of non-retr oactivity unless the parties have otherwise
provided for in a given treaty. There is thus a presumption of non-retroactivity,
157
retroactivity being the exception. As Sir Gerald Fitzmaurice, then Special Rapporteur
on the law of treaties of the International Law Commission stated: “It is clear that only
express terms or an absolutely necessa ry inference can produce such a result. The
presumption must always be against retroactivity.” 158
155M. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009), p. 386, marginal
156e 13, with further references as to statements made in that sense during the drafting process.
157Emphasis added.
M. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009), p. 384, marginal
note 6; see also e.g. the statement by R. Ago, Yearbook of the International Law Commission, 1966, Vol. I, Part
Two, p. 43, para. 51.
158Sir G. Fitzmaurice, 4 Report on the Law of Treaties, Yearbook of the International Law Commission, 1959 ,
Vol. II, p. 74, para. 122 (emphasis added).
90229. This was confirmed by the International La w Commission at large in its Commentary
on draft Article 24 [which became Article 28] of the Vienna Convention on the Law of
Treaties:
“The general rule, however, is that a treaty is not to be regarded as
intended to have retroactive effects unl ess such an intention is expressed
in the treaty or is clearly to be implied from its terms.”159
230. That non-retroactivity is the general rule, is also underscored by the very title of Article
28 of the Vienna Convention on the Law of Treaties: “Non-retroactivity of treaties/
Non-Rétroactivité des Traités”.
231. Accordingly, the burden of proof lies with the applicant to demonstrate that the
Genocide Convention falls into one of the two exceptions fore seen in Article 28 of the
Vienna Convention on the Law of Treaties, quod non.
232. As a matter of fact, even before the Vienna Convention on the Law of Treaties had been
drafted, the Court had already stated that a treaty may only be app lied retroactively in
very limited circumstances.
233. In the Ambatielos case, the United Kingdom had argued th at the relevant treaty
providing for the Court’s juri sdiction had only come into force in July 1926, and that
none of its provisions were thus applicable to events whic h took place, or acts which
were committed, before that date. The Hellenic Government in turn attempted to
counter this argument by stat ing that the 1926 Treaty contai ned provisions similar to
provisions of an 1886 Treaty. The Court how ever rebutted that argument in the
following terms:
“To accept this theory would mean giving retroactive effect to Article 29
of the Treaty of 1926, whereas Article 32 of this Treaty states that the
Treaty, which must mean all the provisions of the Treaty, shall come into
force immediately upon ratif ication. Such a conclusion might have been
rebutted if there had been any special clause or any special object
159
Ibid., p. 211, para. 1.
91 necessitating retroactive interpretation. There is no such clause or object
in the present case. It is therefor e impossible to hold that any of its
provisions must be deemed to have been in force earlier.” 160
234. It should be noted that in order to prove a retroactive application of the Genocide
Convention, one would have to find, to us e the terms of Article 28 of the Vienna
Convention on the Law of Treaties either “a different intention appearing from the
treaty” or such an intention being “otherwi se established”. There is no proof of any
such intention from the Genocide Co nvention, and it cannot otherwise be
established.
2. No “Different Intention” Evident in the Genocide Convention that Would Provide for
its Retroactive Application
235. The Genocide Convention does not contain any specific clause providing for its
retroactive application. Rather, it simply provides in its Article XIII, para. 2:
“The present Convention shall come into force on the ninetieth day
following the date of deposit of the twentieth instrument of ratification or
accession.”
236. Mutatis mutandis Article XIII, para. 3 provides:
“Any ratification or accession effected, subsequent to the latter date shall
become effective on the ninetieth day following the deposit of the
instrument of ratification or accession.” 161
237. None of these two provisions even hint at a retroactive ap plication of the Convention.
Rather, the Convention is future-oriented in that it was adopted, according to its
preamble, “in order to liberate mankind from such an odious scourge [i.e. genocide]”,
i.e. to secure that no future instances of genocide will take place.
160ICJ, Ambatielos case (jurisdiction), Judgment of July 1 , 1952, I.C.J. Reports 1952, p. 40.
161Emphasis added.
92238. Similarly, Article IV of the Convention provides that
“[p]ersons 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”.
239. Had the drafters, as alleged by Croatia, wanted to provide for a retroactive application
of the Convention, they would have instead formulated this provision to read
“[p]ersonshaving committed or committing genocide or any of the other
acts enumerated in article III shall be punished, whether they are
constitutionally responsible rulers, publicofficials or private individuals”.
240. The future-oriented character of the Genoc ide Convention is also brought out by its
Article VIII, whereby any Contracting Party may call upon the competent organs of the
United Nations to take appropriate action und er the Charter of the United Nations in
order to prevent or suppress acts of genocid e, which clearly only relates to genocidal
acts that are about to occur, but does not re late to acts which have already taken place
before the Convention entered into force, which may, unfortunately, no longer be either
prevented nor suppressed.
241. This approach underlying the Genocide Conv ention stands in shar p contrast to e.g.
Article I of the Convention on the Non-Applicability of Statutes of Limitations to War
Crimes and Crimes Against Humanity, whic h specifically provides that no statutory
limitation shall apply to the crimes listed in the Convention “irrespective of the date of
their commission” and which, unlike the Ge nocide Convention, t hus provides for a
retroactive application. Had the drafters of the Genocide Convention similarly wanted to
provide for its retroactive application, they could have included a very similar formula –
yet, no such clause was included.
242. This is further confirmed by the travaux préparatoires of the Convention, which do not
contain any indication suggestin g that the drafters had wa nted to depart from the
presumption against retroactivity now codified in Article 28 of the Vienna Convention
on the Law of Treaties.
93243. Moreover, it is also telling that none of the contracting parties to the Genocide
Convention had ever thought it necessary, wh en becoming a contracting party, to make
any form of declaration excluding a possible retroactive application of the Convention.
244. It is therefore not surprising that already the first commentator of the Genocide
Convention took a clear-cut posi tion against any form of re troactive application. Thus,
already in 1949, Nehemiah Robinson in hi s authoritative commentary on the Genocide
Convention stated: “… it could hardly be contended that the Convention binds the
signatories to punish offenders for acts comm itted previous to its coming into force for
162
the given country. ...”
245. Another leading author on the Genocide Convention, William Schabas, specifically
refers to Article 28 of the Vienna Convention on the Law of Treaties by stating:
“According to article 28 of the Vi enna Convention on the Law of
Treaties, ‘(u)nless a different inten tion appears from the treaty or is
otherwise established, its provisions do not bind a party in relation to any
act or fact which took place or any si tuation which ceased to exist before
the date of the entry into force of the treaty with respect to that party’. …
There is nothing in the Genocide C onvention to suggest ‘a different
intention’. Therefore, ‘(t)he simple fact is that the Genocide Convention
is not applicable to acts committed before its effective date’”. 163
246. He then continues: “… the operative clau ses of the Convention, including article IX,
can only apply to genocide committed subsequent to its entry into force with respect to
164
a given State party.”
247. The conclusion that the Genocide Conventio n does not apply retroactively is not
affected by the fact that the prohibition of genocide enshrined in the Genocide
165
Convention has codified customary international law. This is due to the fact that even
162N. Robinson, The Genocide Convention (1960), p. 114.
163W. A. Schabas, Genocide in International Law (2000), p. 541.
164Ibid.
165Cf. e.g. Article 1, pursuant to which “[t]he Contracting Parties confirm that genocide, whether committed in
time of peace or in time of war, is a crime under international law” (emphasis added).
94 if the content of the prohibition of genocide under customary law and in the Convention
is identical, it is the Convention that brought fundamental changes as to the enforcement
of the prohibition, notably – in the present context – by providing for the Court’s
jurisdiction under Article IX of the Convention. As demonstrated, this jurisdiction only
encompasses violations of the treaty-based prohibition of genocide.
3. There is No “Different Intention” “Otherwise Established” that Would Provide a Basis
for the Retroactive Application of the Genocide Convention
248. The Applicant has also attempted to rely on the object and purpose of the Genocide
Convention as a purported basis for the retr oactive application of the Convention.
However, Article 28 of the Vienna Convention on the Law of Treaties requires a higher
threshold than this reliance. In particular, where no different intention appears from the
treaty, it must be “otherwise established”.
249. As the International Law Commission has c onfirmed, this formula solely encompasses
cases where the retroactivity emanates from the very nature of the treaty. 166 It stated:
“The general phrase ‘unless a different intention appears from the treaty
or is otherwise established’ is used in preference to ‘unless the treaty
otherwise provides’ in order to allow for cases where the very nature of
the treaty rather than its specific provisions indicates that it is intended to
167
have certain retroactive effects.”
250. There are two types of treaties covered by this notion, namely treaties aimed at
interpreting a prior treaty, as well as treaties the provisions of which extend to legal
situations dating from a time previous to its own existence. 168 The Genocide Convention
does not fall into either of these two categories.
251. As a matter of fact, it made perfect sense, in 1948, for the drafters of the Genocide
Convention to provide for thefuture prevention and punishment of the crime of genocide
166Yearbook of the International Law Commission, 1966, Vol. II, p. 212, para. 4.
167Ibid., pp. 212-213, para. 4.
168K. Odendahl, ‘Article 28, marginal note 11’, in Dörr/Schmalenbach (eds.), Commentary on the Vienna
Convention on the Law of Treaties (forthcoming 2010).
95 so that acts of genocide, like the genoc ide committed by Nazi Germany, would not
reoccur, without at the same time regula ting the consequences of acts of genocide
predating the entry into force of the Conve ntion for the respective contracting party.
252. Indeed, providing for a retroactive applicab ility of the Genocide Convention, be it only
implicitly, might have also deterred certain countries from becoming contracting parties
of the Genocide Convention in the first pl ace. Yet, as the Cour t has stated: “[t]he
Genocide Convention was … intended by the General Assembly and by the contracting
169
parties to be definitely universal in scope.”
253. The Court continued:
“The object and purpose of the Genocide Convention imply that it was
the intention of the General Assembly and of the States which adopted it
that as many States as possible should participate. The complete
exclusion from the Convention of one or more States would not only
restrict the scope of its application, but would de tract from the authority
of the moral and humanitarian principles which are its basis.” 170
254. This is even more so the case since ther e is no practice of re levant United Nations
organs hinting at a retroactive applicati on of the Genocide Convention as a matter of
treaty law, the customary nature of its contents notwithstanding.
4. In Any Event the Genocide Convention and Its Article IX Cannot Apply Retroactively to
a Period when the Respondent Did Not Even Exist
255. It has already been demonstrated that the Genocide Convention cannot be applied
retroactively. In any event the Genocide Convention cannot appl y retroactively with
regard to a period of time during which the State concerned, i.e. FRY/ Serbia, did not
even exist.
169ICJ, Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 23.
170Ibid., p. 24.
96256. The Genocide Convention presupposes that at th e relevant time, when acts of genocide
are being committed, the entity concerned must constitute a Statein order for such acts to
be able to amount to violations of obligationsarising under the treatyfor that same entity.
257. This is brought out by Article IV of the Convention which presupposes the existence of
a State at the relevant time, given that it re fers to “constitutionally responsible rulers”,
as well as to “public officials”, i.e. State organs.
258. This is further confirmed by Article V of the Genocide Convention which, by requiring
“legislation” and “penalties”, again presupposes the existence of a State at the time of
the occurrence of acts of genocide.
259. Similarly, Article VI of the treaty is not open to a retroactive application with regard to
a period during which the State c oncerned did not yet exist. This is due to the fact that
there would be no “competent tribunal of the State in the territory of which the act was
committed” 171as required by this provision, since at the relevant point in time there
simply would have been no such territorial State.
260. Accepting the idea of a retroactive applicationof the Genocide Convention with respect to
acts that occurred before the State concerned cam nto existence would aslo blur the issue of
possible violations of treaty obligations on the one hand, with the issue of State succession
with regard to responsibility,on the other. Following the approach suggested by Croatia, a
successor State which did not yet exist at the time that the alleged acts of genocide were
committed would be responsible for these acts by virtue of the proposed retroactive
application of the Genocide Convention. At the same time, and additionally, the same State
could also eventually be held responsible fore se acts by virtue of bieng a successor State to
the predecessor State, the organs of w ihh committed the alleged genocidal acts.
261. Finally, Article IX of the Genocide C onvention only provides for the Court’s
jurisdiction with regard to “disputes between the Contracting Parties relating to the
interpretation, application or fulf ilment of the present Convention”. 172 However, the
Court does not have jurisdiction over a dispute arising out of facts that occurred when
171
172Emphasis added.
Emphasis added.
97 one of the States was a contracting party, i.e. Croatia, but the other State did not yet
exist, i.e. Serbia prior to 27 April 1992. As Judge Tomka has noted:
“The Court has determined, as the t itle of both the case under which it
was entered in its General List and of the present Judgment indicate, that
the case at hand concerns the appli cation of the Conven tion. In order to
fall within the ambit of Article IX of the Convention, the dispute must be
about the interpretation or app lication of the Convention by the
Contracting Parties 173 to it, and not about the application of the
Convention by the predecessor State of the Contracting Party to the
Convention (although such predecessor State may have been, and in our
case was, party to the Convention), nor about its application by an entity
which was not the State party to the Convention and which only
174
subsequently came into being as a State and became a party to it. The
constituent units of the SFRY were not the Contracting Parties to the
Convention, as only the SFRY itself had that status; the acts of its
constituent units were considered as the acts of the SFRY.” 175
262. It accordingly follows that “… the responsib ility of an entity for acts committed before
it became a State — and thus could have become a party to the Genocide Convention —
[does not] fall within the jurisdiction of the Court under Article IX of the Genocide
176
Convention.”
5. The So-Called “Time-Gap” Argument
263. Croatia also advanced an argument in fa vour of a retroactive application of the
Genocide Convention, even though the respondent was not a State at the relevant time,
on the basis that there would otherwise be a hiatus in the protection afforded by the
Genocide Convention. 177
173
174Emphasis in the original.
175Emphasis added.
ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118,
Separate opinion of Judge Tomka, para. 12.
176Ibid., para. 13.
177See CR 2008/10, pp. 34-36, paras. 19-21 (Sands).
98264. Serbia has already in extenso addressed this argument, 178and has demonstrated that it is
without foundation.
265. Firstly, Croatia has not clarified to what end it has advanced the “time-gap argument”.
In particular it seems that according to Croatia this argument is supposed to ipso facto
provide for the Court’s juri sdiction under Article IX, whic h would otherwise not exist
and thereby serve as an additional way of extending the Court’s otherwise non-existing
jurisdiction.
266. Secondly, Croatia has neither clarified at wh at exact point in time the Court’s
jurisdiction arising by virtue of this time-gap argument would start to exist, nor has it
specified the facts that purportedly trigger the Court’s jurisdiction.
267. Moreover and thirdly, given that the substantive rules prohibiting genocide also form
part of customary law and even jus cogens, the commission of any of the acts identified
in Articles II and III of th e Genocide Convention constitute s a violation of customary
international law and, as such, may give ri se to State responsibility or individual
criminal responsibility regardless of the a pplication or non-application of the Genocide
Convention as such, and regardless of wh ether Article IX, providing for the Court’s
jurisdiction applies. Therefore there simply does not exist any time gap regarding the
prohibition of genocide, or regarding responsibility for genocide.
268. Besides, even with regard to the treaty-based prohibition of genocide there was never a
time-gap. As noted by Judge Tomka:
“There is no doubt that the Genocide Convention was binding on the
SFRY since 12 January 1951, when it entered into force in accordance
with Article XIII, until its dissolution and thus was applicable in respect
of its entire territory …. There was not a single day during the armed
conflict which broke out in 1991 in the territory of the SFRY and ravaged
until 1995 when the Convention would not have been applicable in that
territory. This is so because, so long as the SFRY continued to exist, it
178
See inter alia CR 2008/9, pp. 21–22, paras. 43–49 (Zimmermann) and CR 2008/12, pp. 48–49, paras. 81–90
(Zimmermann).
99 remained party to the Genocid e Convention and thus bound by its
provisions. As its constituent republics gradually seceded from the
Federation and declared independen ce, they became parties to the
Convention on the basis of succession with effect from the date when
these republics assumed responsibility for their international relations …
In the present case, the Court dete rmined that the FRY (Serbia and
Montenegro) became party to the Genocide Convention by succession,
ascribing to the declaration of 27 April 1992 and the Note of the same
date ‘the effect of a notification of succession by the FRY to the SFRY in
relation to the Genocide Convention’ (Judgment, para. 117).
Consequently, there was no hiatus or gap in the protection
afforded by the Genocide Conventi on during the conflict, a concern
expressed by counsel for Croatia … when addressing the arguments of
Serbia regarding the temporal application of the Convention. …
The Convention was applicable at every moment during the
prolonged armed conflict in the territo ry of the former SFRY, but it was
to be applied by different States at different periods as the SFRY had
been in the process of dissolution and its successor States, on different
dates, gradually acquired international legal personality and the status of
parties to the Convention from the ve ry moment of their existence as
179
sovereign States.”
269. Finally, and fourthly, the Croatian time-gap argument consequently only pertains to the
question of the Court’s jurisdiction provided fo r in Article IX of the Genocide Convention
and an alleged gap in the Court’s ability to exercise its jurisdiction arising there under.
However, not only has a significant number of States attached reservations to Article IX
of the Genocide Convention, but the Court its elf has, on frequent occasions, upheld
reservations pertaining to Article IX of the Genocide Convention, including in cases
brought by the Respondent itself. 180The Court has thereby accepted the existence of
179ICJ, Case Concerning Application of the Conventionon the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, Separate opinion of Judge
Tomka, para. 10 (references omitted; emphasis added).
180See the two Orders of 2 July 1999 in the Legality of Use of Force cases between Yugoslavia and Spain, ICJ
Reports 1999, p. 761 and between Yugoslavia and the United States, ICJ Reports 1999, p. 916, or more recently
in the Congo v. Rwanda Judgment ( Armed Activities on the Territory of the Congo (New Application: 2002)
100 temporally unlimited time-gaps with rega rd to the dispute settlement mechanism
envisaged in Article IX of the Genocide Convention. In contrast, the alleged time-gap in
the case at hand would only cover a limitedperiod having ended on 27 April 1992.
6. The Meaning of Paragraph 34 of the 1996 Judgment in the Bosnia Case
270. Croatia had also argued during the preliminary objections phase of this case that the
reasoning underlying para. 34 of the 1996 judgment of the Court in the Bosnia case 181
should also apply in the present case and fo r that reason it has invited the Court to
dismiss the Serbian objection relating to the Court’s jurisdiction ratione temporis with
regard to acts predating 27 April 1992.
271. Serbia has already addressed th at argument both in the writte n and the oral part of the
preliminary objections phase of this case. In particular, Serbia argued that the only
question before the Court in the Bosnia case (and the only question which the Court
accordingly addressed and decided in 1996) was whether the notification of succession
emanating from Bosnia and Herzegovina had the effect of making Bosnia and
Herzegovina a party by the time of its independence.
272. As a matter of fact, in 1996, the question whet her the jurisdiction of the Court vis-à-vis
Serbia could extend to alleged genocidal act s which occurred prio r to April 27, 1992,
i.e. before Serbia became a State and contracting party to the Genocide Convention, was
neither raised, nor was it ev en discussed, nor co uld it in any even t be binding on the
Parties in this case by virtue of Article 59 of the Court’s Statute.
273. This position was clearly upheld by the Court, thus rendering Croatia’s argument on the
basis of para. 34 of the 1996 judgment in the Bosnia case moot. The Court stated in its
judgment on jurisdiction in the present case:
“The Court observes however that the temporal questions to be resolved
in the present case are not the same as those dealt with by the Court in
1996. At that time, the Court had merely to determine, first whether, at
(Democratic Republic of the Congo v. Rwanda),Jurisdiction and Admissibility, Judgment, 3 February 2006,
181eral List No. 126, paras. 28-70).
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I.C.J. Reports 1996, p. 617, para. 34.
101 the date that the proceedings in th e case were instituted, the Genocide
Convention had become applicable between the FRY and Bosnia and
Herzegovina, and secondly whether in the exercise of its jurisdiction it
was limited to dealing only with events subsequent to the date or dates on
which the Convention might thus have become applicable. That date
was, or those dates were, in any event subsequent to the moment at which
the FRY had come into existence and had thus become capable of being
itself a party to the Convention. Therefore the finding of the Court that it
had jurisdiction “with regard to the relevant facts which have occurred
since the beginning of the conflict” (that is to say not merely facts
subsequent to the date when the Convention became applicable between
the parties) was not addressed to the question whether these included
facts occurring prior to the coming into existence of the FRY . In the
present case, the Court therefore cannot draw from that judgment
(which, as already noted, doe s not have the authority of res judicata in
the present proceedings) any definitive conclusion as to the temporal
182
scope of the jurisdiction it has under the Convention.”
7. Interim Conclusions
274. The above considerations suggest that statements made in the Court’s 1996 judgment in
the Bosnia case by no means support Croatia’s clai m of retroactivity. Serbia submits
that when approaching that questions afres h, Croatia’s claim is flawed for a range of
reasons. By presenting its claim of retroactivity (let alone the retroactive application of a
treaty to a time preceding statehood) as an argument about temporal restrictions, Croatia
seems to suggest that Serbia has to prove such limitations. In reality, as submitted,
Article 28 of the Vienna C onvention on the Law of Treaties, which reflects customary
international law, establishes a strong presumption against the retroactive application of
treaties. There is no indicat ion that the Genocide Convention should constitute an
exception to the well-established rule. Quite to the contrary, its text, context and object,
as well as its drafting history, are fully in line with the presumption against retroactivity.
182
ICJ, Case Concerning Application of the Conventionon the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118,
para. 123 (emphasis added).
102275. This in turn means that, insofar as Croa tia’s claims are based on facts preceding 27
April 1992, they relate to a period of time during which Serbia was neither in existence,
nor bound by the one treaty on which a finding of responsibility can be based in the
present proceedings, namely the Genocide Convention.
C. Responsibility for Breaches of the Genocide Convention preceding 27 April 1992
Cannot be Transferred to Serbia
1. General Considerations
276. Croatia relies on another argument in orde r to bring events preceding Serbia’s
emergence as a State on 27 April 1992 before the Court. In its Memorial, as well as
during the oral proceedings before the Court, it has asserted a pr inciple pursuant to
which “a state in statu nascendi is responsible for conduct car ried out by its officials
and organs or otherwise under its direction and control”.183
277. To support the existence of such an alleged principle,Croatia places considerable emphasis
on Article 10, para. 2 of theILC’s Articles on State Reonsibility, which provides:
“Article 10. Conduct of an insurrectional or other movement
…
2. The conduct of a movement, insurrectional or other, which succeeds in
establishing a new State in part of th e 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.” 184
278. Before addressing these claims, it is important to note what Croatia does not say.
Neither in its Memorial nor its Written St atement does it suggest that Serbia had
succeeded to the international responsibility th at was incurred prior to its coming into
existence as a State. This is telling because – as Judge To mka observed in his separate
opinion appended to the judgment of 18 N ovember 2008 – the mechanism of State
succession might have been a possible argument of attempting to attribute responsibility
to a State that came into being by way of succession.
183
184Memorial, para. 8.42.
Annex to General Assembly resolution 56/83, 12 December 2001.
103279. Besides, questions of re sponsibility transf erred upon the FRY/Serbia by way of
succession would not have been a proper subjec t of litigation before the Court in the
present proceedings. As noted above, the s ubject-matter of the present proceedings is
defined by Article IX of the Genocide Convent ion. They concern questions “relating to
the interpretation, application or fulfilmen t of the present Convention”, but do not
extend to questions of succession to responsibility incurred by another State.
280. This point was made with particular clarity by Judge Tomka in his separate opinion
appended to the Court’s judgment of 18 Nove mber. Having raised the possibility of
succession into responsibility, Judge Tomka stated that in any event, “clearly”, the
problem of “succession into responsibility of the predecessor State [does not] fall within
185
the jurisdiction of the Court under Article IX of the Genocide Convention.”
281. It is in light of these preliminary consider ations, that it is now possible to address the
second argument advanced by Croatia in whic h it asserts facts befo re the Court that
predate 27 April 1992 – namely the claim th at Serbia, even prior to 27 April 1992, was
a State in statu nascendi and as such responsible for conduct carried out by its officials
and organs or otherwise under its direction and control.
2. Serbia Cannot Be Held Responsible for Conduct of Organs of the Former SFRY
282. Undoubtedly aware of the substantive and pr ocedural weaknesses of a claim based on
succession to responsibility, Croatia, in its Me morial and Written Statement, decided to
try to circumvent the issue of State succes sion altogether by invoking a broad principle
pursuant to which “responsibility is not limited to acts or omissions occurring only after
186
the formal establishment of a state, but may also extend to conduct prior to that date”.
283. In support of this broad principle, it almost exclusively relies on Article 10, para. 2 of
the ILC Articles on State Responsibility, whic h Croatia considers to sustain the general
proposition that “[a] State can be respons ible for conduct committed by persons acting
187
on its behalf prior to the formal date on which it is established or proclaimed”.
185ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118,
Separate opinion of Judge Tomka, para. 13.
186Written Statement, para. 3.18.
187CR 2008/11, p. 13, para. 19 (Crawford) (emphasis added).
104284. This formulation is revealing in its attempt to downplay as a “formality” the key fact of
a State’s coming into existence. More specifi cally, Croatia’s argument is flawed in four
respects:
(i) First, it postulates a principle of a ttribution that does not represent
customary international law;
(ii) Second , it relies on Article 10, para. 2 of the ILC Articles on State
Responsibility even though the requ irements of that provision are
plainly not met in the case at hand;
(iii) Third, it takes Article 10, para. 2 of the ILC Articles on State
Responsibility out of its context a nd grossly over-estimates its real
role as a rule of attribution,
and finally,
(iv) Fourth, it misinterprets Article 10, pa ra. 2, which does not apply to
situations in which a predecesso r State is responsible for the
alleged acts.
(a) The Rule Contained in Article 10, para. 2 ILC Articles on State Responsibility Does
Not Reflect Customary International Law
285. It is well-known that, in accordance with Ar ticle 38, paragraph 1, of the Statute, the
Court shall apply international conventions , international custom, and the general
principles of law “recognized by civilized na tions”, as well as judicial decisions and
teachings of the most qualified jurists as subsidiary means for the determination of rules
of law.
286. Clearly, Article 10, paragraph 2, of the ILC Articles on State Res ponsibility is not a
treaty rule, and is not applicable in the present case on that ba sis. The question is
whether this provision reflects international custom, “as evid ence of a general practice
accepted as law” that existed at the time rele vant for the present case, i.e. during the
period 1991-1992. In Serbia’s submission, it does not.
105287. While the Court has never pronounced on the legal status of the rule contained in
Article 10, para. 2 of the ILC Articles on State Responsibility, it mentioned this
provision in the preliminary objections pha se of the present proceedings when
discussing whether the Respondent’s seco nd preliminary objection was of an
exclusively preliminary nature. Its discussion commenced with the following words: “In
so far as Article 10, paragraph 2, of the ILC Dr aft Articles on State Responsibility
188
reflects customary international law on the subject ...”
288. As will be seen from the following discussi on, the Court’s cautious choice of words is
telling and, this caution was justified.
289. The principle now contained in Article 10, para.2, of the ILC Articles on States
Responsibility first appeared in 1972 in the Fourth Report on St ate Responsibility by
Special Rapporteur Robert Ago. 189 Previous drafts only dealt with the situation now
covered by Article 10, para. 1, th at deals with responsibilit y of a State for acts of a
successful insurrectional movement establishing a new government of that State.
290. However, while eloquently arguing why th e provision on the responsibility of a new
State for acts of the insurrec tional movement that brought it in to existence is desirable,
this report provided only one single instance of State practice that directly dealt with the
responsibility of a new State for the c onduct of the insurre ctional movement
establishing it. This was an opinion give n by the Law Officers of the British Crown
during the American Civil War, on 16 Oc tober 1863. It dealt with a hypothetical
situation in which the confederate insu rgents would succeed, and stated that
compensation for the losses inflicted to British subjects by the insurgents during the war
190
could be claimed if the Confederate States were de jure and de facto established. In
contrast, other practice cited in the 1972 report dealt with the situation of insurgents that
191
became a new government of an already existing State.
188
ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008 , General List No. 118,
para. 127 (emphasis added).
189Yearbook of the International Law Commission, 1972 , Vol. II, para. 214. Compare Yearbook of the
International Law Commission, 1961, Vol. II, p. 53.
190See Yearbook of the International Law Commission, 1972, Vol. II, para. 204, note 467.
191Ibid., paras. 200-209.
106291. Subsequent reports and, fi nally, the 2001 ILC commentarie s on the Articles on State
Responsibility do not add any new evid ence of relevant State practice and opinio juris
192
supporting the principle that was to become Article 10, paragraph 2.
292. According to a recent article dealing with this issue: “[t]he principle [contained in
Article 10(2)] seems to be more a doctrinal construction than one based on actual state
193
practice.” Based on his own research, the author concludes that State practice in
support of the principle “ultimately consists of one obiter dictum by an internal United
States compensation commission and one sentence taken from a legal opinion
194
discussing the likely consequences aris ing from uncertain future events.” He also
mentions several French municipal decisi ons that accepted that Algeria could in
principle be held responsible for acts of the FLN, but they have “limited concrete
implications” as Algeria was not a party to any of these proceedings. 195
293. The foregoing discussion shows that the rule contained in Article 10, para. 2, of the ILC
Articles on State Responsibility is not supported by State practice, which is almost non-
existent. Nor is there evidence of States’ opinio juris in this regard. It is therefore
submitted that said rule does not reflect inte rnational custom. Also, there is no evidence
that this rule is a general principle of law. Accordingly, it ca nnot be applied by the
Court in the resolution of the present dispute. Finally, it should be emphasized that, as a
matter of principle, the onus is on Croatia to demonstrate that the rule contained in
Article 10, para.2, reflects an international custom binding on the Respondent. 196
(b) The Rule Contained in Atricle 10, para. 2 of the ILC Atricles on State Responsibility
Cannot be Applied Considering Its Own Terma snd the Circumstancesof the Present Case
294. Supposing arguendo that the rule contained in Article 10, para. 2, of the ILC Articles on
State Responsibility could be applied as a legal rule in the settlement of the dispute
before the Court, the following analysis wi ll show that the present case simply does not
fit the terms of this provision.
192
See Draft articles on Responsibility of States for Inte rnationally Wrongful Acts, with commentaries (2001),
193rbook of the International Law Commission, 2001, Vol. II, Part Two, pp. 50–52.
Dumberry, ‘New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement’, 17
EJIL (2006), p. 612.
194Ibid., p. 620.
195Ibid.
196See ICJ, Colombian-Peruvian asylum case, Judgment of November 20 , 1950: ICJ Reports 1950, p. 276.
107295. According to Article 10, para. 2,
“[t]he conduct of a movement, insurrectional or other, which succeeds in
establishing a new State in part of th e 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.“
296. It follows that there are three essential elements of this rule:
a) the conduct in question has to be the conduct of a movement
striving to establish a new State on part of the territory of a pre-
existing State or in a territory under its administration;
b) this movement has to be an insurrectional or “other” movement;
c) this movement has to be successful.
297. All three elements are necessary preconditions to the application of the norm formulated
in Article 10, para. 2. The conduct of an insurrectional movement can only be ascribed to
the new State if the situation matchesall the elements of the scenario, specified in Article
10, para. 2. The following will demonstrate, however, thatnone of the essential elements
described in Article 10, para. 2 are presentin the circumstances of the case at hand.
i) There was no “movement” aiming to establish the FRY as a new State
298. In the application of Article 10, para. 2, one must first demonstr ate that a movement
aiming to establish the FRY as a new State existed. No such movement has, however,
been identified, or could have been identified.
299. The Applicant is unclear when describing the “movement” the c onduct of which it
claims should be attributed to the Respondent, and references in this respect are elusive
and unspecified. An attempt to describe the “movement” in question was made in the
Written Statement:
“There can be no doubt that the Serbian nationalist movement that ultimately
succeeded in establishing the FRY (Serbia and Montenegro) as a new State
can be regarded as falling within the scope of an ‘insurrectional or other’
197
movement for the purposes of Articl1 e0, paragraph 2 of the ILC Articles.”
197
Written Statement, para. 3.33.
108300. However, there was no movement or structur e during the conflict called the “Serbian
nationalist movement”. Nor do es the Applicant define su ch a movement. The simple
reason for this is that no de finition can be given which wo uld support the claim of the
Applicant. There was no move ment which aimed at, and su cceeded in, establishing
the FRY.
301. Moreover, even if such a movement existed, it would need to be, in the words of the
ILC, a movement in “continuing struggl e with the constituted authority”. 198This is,
however, not the case.
302. The Applicant states that “[t]he Serbia n nationalist movement led by President
Milošević took control of several of the most significant political and military organs of
the former SFRY, including mo st importantly the JNA.” 199This means that, even
according to the Applicant’s own account of events, the “movement” in question was in
fact in control of the established authority (i.e. the SFRY) rather than in a struggle with
it, and in control of the JNA rather than challenging it. What is described by the
Applicant is clearly not a movement within the meaning of Article 10, para. 2.
ii) No insurrectional or other movement outside the established State structure
303. Even if the Applicant were able to prove that there was a movement struggling to
establish the FRY as a new State, the sec ond element required for the application of
Article 10, para. 2 would still be missing. It is submitted that an essential characteristic
of the movements that fall within the scope of Article 10, para. 2 is that they exist and
operate outside and against the established structure of the State on whose territory they
seek to establish a new State. This is clear from the ILC Commentary:
“As compared with paragraph 1, th e scope of the attribution rule
articulated by paragraph 2 is broadened to include ‘insurrectional or
other’ movements. This terminology reflects the existe nce of a greater
variety of movements whose actions may result in the formation of a new
198Draft articles on Responsibility of States for rnationally Wrongful Acts, with commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 50. para 2.
199Written Statement, para. 3.43.
109 State. The words do not, however, extend to encompass the actions of a
group of citizens advocating separa tion or revolution where these are
200
carried out within the framework of the predecessor State.”
304. Therefore, groups of citizens that act within the framework ofthe predecessor State (in the
present case, the SFRY) are not covered by Article 10, para. 2, despite the fact that their
actions in the end may result in the formation of a new Stat e on the territory of that
predecessor State. Furthermore,the fact that the ILC used theterms “insurrectional or other
revolutionarymovement” 201in its commentary to characterize themovements falling under
Article 10, para. 2, also reflects the idea that these movements mustnecessarily act outside
the framework of the predecessor State. The IL C Commentary also makes it clear that, for
the purposes of Article 10, the relevant conduct of insu rrectional or other movements is
“committed during thecontinuing strugglewith the constituted authority” .202
305. Clearly, there was no movementthat acted outside the framework of the predecessor State
(i.e. the SFRY) that resulted in the creation of the FRY. While the Applicant claims that
203
such movement existed and acted through the JNA, i.e. the SFRY army, it is obvious
that this army was an organ of the SFRY and acte d in that capacity during the relevant
period To use the terminology of the ILC commentary, the SFRY army, as well as other
federal organs involved in the conflict, acted “within the framework of the predecessor
State”. The conduct of the SFRY army obviouslycould not be regarded as, to use the ILC
phrase, “the continuing struggle with the constituted authority.” Whatever one may think
about the JNA and its actions and policies, especially at the time of the dissolution of the
SFRY, one thing seems clear: it was neither aninsurrectional nor revolutionary force. The
JNA was the “constituted authority itself” and nota part of the movement struggling with
it, being outside the framework of the predecessorState. In this regard, the present case is
clearly distinguishable from the situation of Eritrea invoked by the Applicant, where the
Eritrean authorities were outside the establis hed structure of the predecessor State and
acted as ade factoState before declaring independence. 204
200
Draft articles on Responsibility of States for Intrnationally Wrongful Acts, with commentaries (2001),
201rbook of the International Law Commission, 2001, Vol. II, Part Two, p. 51, para. 10 (emphasis added).
202Ibid., p. 51, para. 8 (emphasis added).
203Ibid., p. 51, para. 2 (emphasis added)
Written Statement, para. 3.33.
204See CR 2008/11, p. 14 (Prof. Crawford), quoting Eritrea/Ethiopia Claims Commission, Partial Award,
Civilian Claims (Eritrea’s Claims 15, 16, 23 & 27-32), 17 Dec. 2004, 44 ILM 601, pp. 610–611.
110306. In conclusion, the JNA, and other federal organs a fortiori, could not be regarded as a
part of “a movement, insurrec tional or other” under the te rms of Article 10, para. 2, of
the ILC Articles on State Responsibility.
307. Thus, it is plainly absurd to propose, as the Applicant does, that the organs, including
the army, of the pre-existing State (the SFRY) committed acts under the control of a
“Serbian nationalist movement”, and, at the same time, to posit that this “Serbian
nationalist movement” is an insurrectiona l, a revolutionary or like movement
challenging the same pre-existing State.
iii) Lack of success
308. Another indispensable requirement for the ope ration of Article 10, para. 2, is success.
This element, however, is also missing in the circumstances of the present case.
309. In its Memorial, the Applicant first concedes that “the maintenance of the SFRY … was
205
synonymous with the promotion of Serbian interests.” It adds, however, that after the
withdrawal of the JNA from Slovenia, the Serbian leadership “[t]ook steps to establish
206
the borders of a new Yugoslavia accordi ng to the plan for ‘Greater Serbia’”. There
are numerous references in the Applicant’s submissions to a “Greater Serbia” as the
actual aim of the Serbian nati onalist movement (or “of the Se rbian leadership”, or “of
President Miloševi ć”, or “of the JNA”). 207In one of its conc lusions, the Applicant
stresses: “By October 1991 the JNA was acting as an army to promote the establishment
of a ‘Greater Serbia’ controlled by the Serbian leadership.” 208
310. Even if this hypothesis advanced by the Applicant were correct, quod non , the
requirement of success remains unfulfilled. No “Greater Serbia” came into being and no
part of Croatia, Bosnia and Herzegovina, or Macedonia became part of Serbia.
311. The Applicant must be aware of this obvious fact and for this reason it has suggested
that “the Serbian nationalist movement u ltimately succeeded in establishing the
205Memorial, para. 3.03.
206Ibid.
207E.g. Memorial, paras. 2.04, 2.09, 2.44, 2.65, 2.77, 2.78, 2.86, 3.02, 3.03, 3.42, 3.80.
208Memorial, para. 3.42.
111 209
FRY”. However, this “success” does not corr espond to any stated or hidden aim or
purpose. Indeed, there was no need to have an “insurrection or other movement” in
order to establish the FRY as a State, since no one opposed this.
iv) The SFRY existed as a subject of international law in 1991 and early 1992 and no
continuity between its organs and those of the FRY can be assumed
312. As the Respondent has already demonstrated at the preliminary objections stage of the
proceedings, despite the grave political crisis and armed conflicts on its territory, the
SFRY was perceived and recognized as a subjectof international law at least until the end
of 1991, and even in early 1992. This is ev idenced by the fact that the SFRY concluded
bilateral and multilateral treaties, attended international conferences and meetings, and
also maintained diplomatic relations with other States in late 1991 and early 1992. 210
Thus, the SFRY continued to berecognized as a State with an effective government until
much later than mid-1991 as the Applicant claims. 211This means that acts of the SFRY
organs during 1991, and in early 1992, must be considered as acts of the SFRY, and not
acts of the FRY (which did noteven exist at the time) orany other entityor movement.
313. It is also not accurate to claim, as th e Applicant does, that the SFRY organs, in
particular the JNA, somehow became “de facto organs of the emerging FRY.” 212If they
were to be regarded as “de facto organs of the emerging FRY”, they would need to be in
the position of “complete dependence”, acco rding to the well-established standard
enunciated by the Court. 213However, as has been demonstrated by the Respondent in
the proceedings concerning preliminary objec tions, as well as in the present Counter-
Memorial, 214 the federal organs of the SFRY, as well as their chief officers, were not
exclusively Serbian or Serb-dominated, but included individuals from other republics of
the SFRY. Some key posts, such as the president of the collective head of State, the
prime minister, the minister for foreign affairs and the minister of defence were held by
209Written Statement, para. 3.33.
210See Annex 23 and Annex 24.
211See, e.g. Written Statement, para. 3.33.
212
213Ibid.
See ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, General List
No. 91, p. 141, para. 393; see also, infra Chapter V, para. 511.
214See Annex 30.
112 215
persons whose territorial or ethnic origin was in Croatia. As the Respondent already
noted, it is hard to perceive these individuals as acting as de facto organs of the
emerging FRY and, as the record shows, they certainly did not act in such a way.
314. Although some of these officers may have been in political alliance with the Serbian and
Montenegrin leadership at the time, it does not follow that they were under the latter’s
control. Moreover, it is one th ing to speak of a political alliance, and quite another to
prove the existence of a structured movement with a specified purpose that is required
for the application of Article 10, para. 2 of the ILC Articles on State Responsibility.
This is the burden the Applicant fails to carry.
315. Further, as already demonstrated, no identity or “de facto continuity” between the SFRY
and the FRY 216 can be assumed. In this regard, it is important to note that the Federal
Presidency, the Government and the SFRY army did function at least in 1991 and early
1992 and were during the course of 1991 al so headed by individuals who came from
Croatia. 217Moreover, the record shows that thes e individuals were not “nominally in
positions of authority” and “stripped of a ll effective power” by the middle of 1991 as
the Applicant claims. 218For example, both the Federal Prime Minister and the President
of the Federal Presidency exercised their functions as federal organs much later than the
middle of 1991, as is clear from the record. 219
316. As already demonstrated during the preliminary objections stage of the proceedings, the
evidence presented by the Applicant (a list of “personal continuity: 1991-2001”) 220 does
not prove personal continuity between office holders in the relevant organs of the SFRY
and in the relevant organs of the FRY. In a ny case, it is conteste d that such personal
continuity could, by itself, serve as evidence of continuity for the purposes of Article
10, para. 2 of the ILC Articles on State Responsibility.
215See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118,
paras. 4.20–4.36.
216Written Statement, para. 3.40.
217See ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118,
218as. 4.17–4.36; see, also, infra Chapter V, paras. 519–536.
219Written Statement, para. 3.48.
See Annexes 26-28.
220See Memorial, para. 8.45 & Appendix 8; Written Statement, paras. 3.39–3.40 & 3.45.
113v) Interionclusions
317. It has been demonstrated thatArticle 10, para. 2, ofthe ILC Articles onState Responsibility
cannot be applied by the Court in the resolution of the present dispute because there is no
evidence that it reflects internatiocustom or a generalprinciple of law.
318. Moreover, the circumstances of the present case simply do not fit the requirements of
the rule as defined in Article 10, para. 2. Not even a very flexible interpretation of
Article 10, para. 2, suggested by the Applicant, could bring the present case within the
scope of this provision. Simply, not a single element is fitting to the circumstances of
the present case. First, there was no Serbian nationalist movement aiming to establish
the FRY as a new State. Second, there was no “struggle with the constituted authority”,
and, third, there was no success. It follows that the present case does not fall within the
terms of Article 10, para. 2 of the ILC Articles on State Responsibility.
319. Finally, the SFRY continued to exist as a su bject of international law in 1991 and early
1992, and performed governmental functions at that time. Consequently, any possible
responsibility arising from its acts and omissions can only be imputed to the SFRY and
not to the FRY, which only came into being on 27 April 1992.
(c) The alleged rule containedin Article 10, para. 2 of the C Articles on Staet Responsibility
does not affect the scope ofprimary rules contained in the Gnocide Convention
320. Seeking support for a broad principle of “t ransferred responsibility”, Croatia grossly
overstates the role of Article 10, para. 2 of the ILC Articles on State Responsibility. In
Croatia’s argument, it seems that this provision is said to produce three legal effects:
1) First, conduct by persons acting on behalf of a state instatu nascendi
is attributed to a State once thatState has come into existence;
2) Secondly, responsibility incurred prior to the State’s coming into
existence is said to be transferred to the new State; and
3) Thirdly, this “tranfer of responsibi lity” allegedly also applies to
responsibility for breaches of treaties to which the State in statu
nascendi was not and indeed could not even have been a party.
114 Hence conduct preceding 27 Apr il 1992 (i.e. a time when Serbia
did not yet exist and thus was not yet and could not have been a
contracting party of the Genocide Convention) is, Croatia argues,
transformed into a breach of the Genocide Convention for which
Serbia is said to be responsible.
321. The argument advanced by Croatia is flawed in a number of respects. Serbia submits
that Article 10, para. 2 of the ILC Articles on State Responsibility, even if one were to
admit arguendo that it represented, as of 1992, cust omary international law and that it
fitted the circumstances of the case at hand, is simply “not capable of carrying the load
221
the Applicants seek to put upon it”.
322. In particular, Croatia fails to appreciate th at, as a secondary rule of attribution, the
provision does not and cannot affect the sc ope of the primary rules, and it cannot
therefore turn conduct occurring prior to 27 April 1992 into a breach of the Genocide
Convention that only became binding on Serbia on that date by way of succession (i).
323. Even less can the alleged principle provide for a so-called “transfer of responsibility” in
the present proceedings which are exclusively concerned with breaches of the Genocide
Convention (ii).
i) Article 10, para. 2 ofthe ILC Articles on Stae t Responsibility as a special rule ofattribution
324. The specific function of Article 10, para. 2 of the ILC’s text as a special rule on attribution
is brought out and confirmed by the provisi on’s placement within the ILC Articles on
State Responsibility, as well as in the Commission’s explanatory commentary.
325. Article 10, para. 2 forms part of Chapter II of Part One of the ILC Articles on State
Responsibility entitled “Attribution of Conduct to a State”. Within the framework of the
ILC’s text, the specific ru les on attribution, laid down in Articles 4 - 11 thereof,
implement the essential principle set out in Article 2 – namely that State responsibility
arises from conduct that “(a) is attributable to the State under international law; and (b)
constitutes a breach of an international obligation.”
221
Cf. ICJ, South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 42, para. 72.
115326. More particularly, the rules on attribution, including Articl e 10, para. 2, give concrete
meaning to the first of thes e two separate elements of State responsibility. Rules of
attribution therefore serve a crucial, but at the same time, limited purpose. They set out
an essential condition for responsibility, but they are only concerned with one of two
such essential conditions, the other being wr ongfulness. This in effect is what the
Commission in rather straightforward terms, states in the introduc tory commentary to
Part One, Chapter II of its text:
“[A]ttribution must be clearly distin guished from the characterization of
conduct as internationally wrongful. Its concern is to establish that there
is an act of the State for the purposes of responsibility. To show that
conduct is attributable to the Stat e says nothing, as such, about the
legality or otherwise of that conduct“. 222
327. As the Commission was at pains to stress th roughout its work, that second condition –
wrongfulness –depended on theprimary rulesof international law:Chapter III of Part One
no doubt adds someclarifications, e.g.by exploring the extension intime of a wrongful act
and introducing different cate gories of special breaches (which may be “completed”,
“continuing” or “composite”). However, as the Commission noted, “chapter III can only
play an ancillary role indetermining whether therehas been such a breach”. 223
328. This was so because “the articles do not attempt to define the content of the international
224
obligations, the breach of which gives rise to responsibility”.
329. Based on this fundamental choice, the introductory commen tary to chapter III of Part
One “stressed again that the articles do not purport to specify the content of the primary
rules of international law, or of the obligations thereby created for particular States.“ 225
330. Within the framework of PartOne, Chapter II of the ILC Articles on State Responsibility,
the specific rule of attributin to be found in Article 10, pr aa. 2, is quiteexceptional.
222
Draft articles on Responsibility of States for Intrnationally Wrongful Acts, with commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, Introductory commentary to Part One,
chapter II, p. 39, para. 4.
223Ibid., Introductory commentary to chapter III, p. 54, para. 2.
224Ibid.
225Ibid.
116331. The general principle underlying Chapter II is that conduct cannot be attributed to an
entity that did not exist at the time when the conduct occurred. In line with this guiding
principle, Articles 4–6, as well as Articles 8-9 of the ILC Articles on State
Responsibility envisage attribution of conduct to an existing State. Similarly, Article 10,
para. 1 of the said Articles deals with the case of a successful insurrection replacing the
government of the State, but leaving the State’s personality intact – again an instance of
attribution to a State that existed at the time the conduct occurred. 226
332. In sharp contrast, Article 10, para. 2, of the ILC Articles on State Re sponsibility is the
only provision in Chapter II th at entails the attribution of conduct to a new State that
only came into existence after the conduct occurred . As noted above, this has led
writers to underline the “quite limited” 227 support it enjoys in St ate practice. Hence the
Commission’s explanatory commentary observed:
“Where the insurrectional or other movement succeeds in establishing a
new State, either in part of the terri tory of the pre-existing State or in a
territory which was previously under its administration, the attribution to
the new State of the conduct of the in surrectional or other movement is
again justified by virtue of the continuity between the organization of the
movement and the organization of th e State to which it has given rise.
Effectively the same entity which previously had the characteristics of an
insurrectional or other movement ha s become the Government of the
228
State it was struggling to establish.”
333. While the scope of Article 10, para. 2 remains controversial in many respects, it is clear
what the provision is not about. As a secondary rule of attribution, it does not affect the
content of primary rules and therefore it cannot be relied upon to determine whether
229
particular conduct “constitutes a breach of an international obligation of [a] State”.
That determination depends on the interpretation of applicable primary rules of
226See Draft articles on Responsibility of States for Inte rnationally Wrongful Acts, with commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 50, para. 5.
227P. Dumberry, State Succession to International Responsibility (2007), at p. 239. See further the same author’s
comment referred to supra at footnote 193.
228Draft articles on Responsibility of States for Intrnationally Wrongful Acts, with commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 50, para. 5. For a similar observation
see para. 4 of the ILC’s commentary to Article 10 (ibid.):
“The basis for the attribution of conduct of a succes sful insurrectional or othe r movement to the State
under international law lies in the continuity between the movement and the eventual Government.”
229Article 2(b).
117 international law. Just as the other rules of attribution set out in Part One, Chapter II of
the ILC Articles on State responsibility, Ar ticle 10, para. 2, can ne ither be invoked to
justify otherwise wrongful conduct, nor can it serve to extend the scope of primary
rules. This point was made with particular clarity in the ILC’s commentary to the first
reading of the draft articles, where the ILC itself observed:
“Also, it should be made clear that the article under consideration [i.e.
then draft article 15] relates only to the attribut ion of certain acts to the
State. It in no way seeks to define at the same time the international
responsibility which might possibly deri ve from this attribution or to
230
determine the amount of compensation due.”
ii) The particular focus of responsibility issues arising in the current proceedings
334. The present proceedings do not deal with re sponsibility in genera l, but rather only
within the confines of the limited jurisdic tion of the Court. Having exclusively been
brought under Article IX of the Genoc ide Convention, these proceedings are
accordingly solely dealing with the applicat ion of this very Convention and possible
breaches thereof. As the Permanent Court of International Justice had already put it in
the Case Concerning the Factory at Chorzów, a dispute concerning the “application” of
treaty obligations to a State party entails th e adjudication of its responsibility for any
breach of that treaty. The Court stated:
“Differences relating to the applica tion of Articles 6 to 22 include not
only those relating to the question whet her the application of a particular
[treaty] clause has or has not been correct, but also those bearing upon
the applicability of these articles , that is to say, upon any acts or
231
omission creating a situation contrary to the said articles.”
335. Similarly, in the LaGrand case, the Court found that it had jurisdiction under the
Optional Protocol to the Cons ular Convention to consider Germany’s claims because
230Yearbook of the International Law Commission, 1975, Vol. II, p. 102, para. 8 of the commentary to then-draft
article 15 (emphasis added).
231PCIJ,Case Concerning the Factory at Chorzów (Claim for Indemnity), Jurisdiction, Judgment, PCIJ, Series
A, No. 9, p. 20-21 (emphasis added).
118 Germany’s claims did indeed relate to th e Vienna Convention on Consular Relations.
The Court held:
“The dispute between the Parties as to whether Article 36, paragraph 1
(a) and (c), of the Vienna Convention have been violated in this case in
consequence of the breach of paragraph 1 (b) does relate to the
interpretation and application of the Convention.” 232
336. Similarly, the Court in the present proceedin gs, just like the Permanent Court in the
Chorzów case or this Court in the LaGrand case, is concerned only with allegations of
violations of the Convention on the Prev ention and Punishment of the Crime of
Genocide.
337. Concerned generally with the secondary rule s of responsibility, the ILC could restrict
itself to observing that
“the origin or provenance of an ob ligation does not, as such, alter the
conclusion that responsibility will be entailed if it is breached by a State,
nor does it, as such, affect the regi me of State responsibility thereby
arising. Obligations may arise for a State by a treaty and by a rule of
customary international law or by a treaty and a unilateral act”. 233
338. In contrast, the Court’s juri sdiction is based on Article IX of the Genocide Convention
and is accordingly limited to issues “rela ting to the interpretation, application or
fulfilment of the present [Ge nocide] Convention”. It cannot turn a blind eye to the
“origin or provenance” of the obligations a llegedly breached. Its focus can only be on a
specific set of obligations, namely those re lating to genocide, and concerning breaches
of obligations derived from a particular source, namely a specific treaty, i.e. the
Genocide Convention.
232ICJ, LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001 , pp. 482-483, para. 42
(emphasis added).
233Draft articles on Responsibility of States for rnationally Wrongful Acts, with commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 55, para. 4 of the commentary to
Article 12.
119339. This restriction, inherent in the fact that the Court may onl y exercise jurisdiction under
Article IX of the Genocide Convention, furt her undermines Croatia’s argument based
on Article 10, para. 2 of the ILC Articles on State Responsibility. Thus, in order to
establish Serbia’s responsibility for acts that occurred prior to 27 April 1992, Croatia
has to prove that two requirements are met:
(i) the conduct of a “movement” - even if attributable to a new State
after the alleged success of the insurrection - must have amounted
to a breach of an international obligation; and
(ii) given the jurisdictional ambit of the present proceedings, the
movement’s conduct must have am ounted to a violation of the
1948 Genocide Convention.
340. This latter requirement, however, would neces sarily presuppose that the movement in
question was bound by the 1948 Convention as a matter of treaty law.
341. For obvious reasons, this secondrequirement, directly flowin g from fundamental principles
governing the jurisdiction of this Court, is not fulfilled. As the Court has clarified, Serbia
became a party to the Geno cide Convention on 27 April 1992 only, by virtue of its
Declaration which the Court hasheld to amount to a declarat ion of succession. Conversely,
Serbia was not a party tothe Genocide Convention piror to 27 April 1992.
342. Even if it is assumed, be it only arguendo, that Serbia had been prior to 27 April 1992, a
State in statu nascendi, then that nascent State (or m ovement) was not, and could not
have been, a party to the Genocide C onvention, since only States may become
contracting parties.
343. This interpretation of Article 10, para. 2 of the ILC Articles on State Responsibility is
borne out by the ILC’s debate s. Since its work on State responsibility, from the 1960s
onwards, was meant to cover the field of resp onsibility in its entirety, the Commission
did not have to distinguish, for the purposes of attribution, between the different sources
of an obligation. However, the ILC itself wa s aware that the rule now enshrined in
Article 10, para. 2 of its Articles on State Res ponsibility only dealt with the transfer of
attribution, and not with the issu e of responsibility as such, i.e. whether certain acts did
(or indeed could) constitute breaches of an international obligation.
120344. Hence, the ILC commentary to the first readin g of its draft articles dealing with the
transfer of attribution from insurrectional movements to a new State observed: “In truth,
the point is not so much to find a justification for the attribution to the State, as a
possible source of intern ational responsibility, of conduct engaged in by the organs of
234
an insurrectional movement before the latter has taken power.“ It thus recognised that
the identification of legal obligations binding on the movement is th e crucial aspect of
invoking responsibility after the success of an insurrection.
345. It is even more telling that the commentary to Article 10 of the ILC Articles on State
Responsibility envisaged the “… possibility … that the insurrec tional movement may
itself be held responsible for its own conduct under international law, for example for a
breach of international humanitarian law co mmitted by its forces”, but then found that
questions relating to “the international res ponsibility of unsuccessf ul insurrectional or
other movements, however, [would] fall[s] ou tside the scope of the present articles,
which are concerned only with the responsibility of States.” 235
346. This confirms the fundamental assumpti on underlying Article 10, para. 2, of the ILC
Articles on State Responsibility: the in surrectional or other movement must itself have
committed a violation of an applicable rule of international law. Responsibility for this
breach is then attributed to the newly created State by virtue of Article 10, para. 2, of the
ILC Articles on State Responsibility. Convers ely, where a movement, insurrectional or
other, does not violate its international obligations, Article 10, para. 2, cannot “create”
responsibility of the subsequently-emerged State. What is more, in the present case, the
international obligation in question mu st be one imposed by the 1948 Genocide
Convention. Since movements could not be bound by that treaty, they could not incur
responsibility for treaty breaches. As a c onsequence, Article 10, para. 2, does not
support Croatia’s argument.
347. In fact, looked at from a somewhat different angle, Serbia’s argument that the primary
rules contained in the Genocide Convention ca nnot be retroactively applied to the acts
234Yearbook of the International Law Commission, 1975, Vol. II, p. 100, para. 3 of the commentary to then-draft
article 15 (emphasis added).
235Draft articles on Responsibility of States for rnationally Wrongful Acts, with commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 52, para. 16 of the commentary to
Article 10.
121 of insurrectional or other movements is furt her supported by the ru les contained in the
1977 Additional Protocol I to the four Ge neva Conventions. Article 96, para. 3 of
Additional Protocol I provides for the right of certain type s of movements to make a
unilateral declaration thereby triggering the applicability of the Geneva Conventions
and Additional Protocol. It is this declarati on which makes the full set of primary rules
of international humanitarian law contai ned in both the Geneva Conventions and
Additional Protocol I applic able to an armed conflict. As the authoritative ICRC
Commentary on Additional Protocol I clarifies:
“The declaration [i.e. one made by a national liberation movement
engaged in a fight within the meani ng of Article 1, para. 4 of Additional
Protocol I] is a condition for sub-pa ragraphs (a)-(c) [o f Article 96 of
Additional Protocol I] becoming app licable: the status recognized to
liberation movements indeed gives them , as it gives States, the right to
choose whether or not to submit to international hum anitarian law,
236
insofar as it goes beyond customary law”.
348. Conversely, national liberation movements that do not make a declaration under
Additional Protocol I would be only bound, as confirmed by the ICRC’s Commentary,
by those rules of internationa l humanitarian law which form part of customary law.
Assuming arguendo that Article 10, para. 2 represented customary international law, if
the movement is successful in creating a new State, this new State could accordingly be
only held responsible for violations of international humanitarian law committed by said
movement, i.e. violations of customary law, ev en if this State later ratifies Additional
Protocol I.
349. In contrast thereto, Croatia’s line of argument would lead to the result that a contracting
party of Additional Protocol I, which came into existence by way of a successful armed
struggle of a movement within the meaning of Article 96 Additiona l Protocol I, could
be held responsible for violations of A dditional Protocol I as such, even if the
movement concerned which had created th e new State, had deliberately decided not to
make a declaration under Article 96 of Additional Protocol I.
236
C. Pilloud et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of
12 August 1949 (1987), pp. 1089-1090, Marginal note 3765(emphasis added).
122350. During the oral hearings on th e preliminary objections ra ised by Serbia, counsel for
Croatia qualified the jurisdictional argument ratione temporis as being “lock step
237
logic”. Serbia submits that its argument is bor ne out by a straightforward application
of the Court’s principles on jurisdiction, as well as by a so ber reading of Article 10,
para. 2 of the ILC’s Articles. It submits th at the matter was put mo st clearly by Judge
Tomka in his separate opinion appended to the preliminary objections judgment in the
present case. Having considered the potenti al grounds potentially wa rranting a transfer
of responsibility to Serbia for acts committed prior to 27 April 1992, Judge Tomka drew
attention to the jurisdictional principles applicable before the Court. In no unclear terms,
these principles of jurisdiction led him to exclude that “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[s] within the juri sdiction of the Court under Article IX of
the Genocide Convention.” 238
(d) Article 10, para. 2 of the ILC Articles on State Responsibility does not apply where a
predecessor State is responsible for the alleged acts
351. Even if it affected the scope of the primary rules in question, quod non , the rule
contained in Article 10, para. 2 of the ILC’s Articles on State Responsibility would still
not sustain Croatia’s claim. This is due to the fact that Article 10, para. 2 of the ILC
Articles on State Responsibility does not appl y to situations in which the responsibility
of the predecessor State can be established.
352. First - as already noted above – it follows fr om the interpretation of the very term
“movement”, which – whatever its precise content – does not encompass States.
353. Second, it also follows from the object and purpose of the special rule of attribution laid
down in Article 10, para. 2, of the ILC Artic les on State Responsibility, an argument
that will now be addressed.
237CR 2008/11, p. 14, para. 23 (Prof. Crawford).
238ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118,
Separate Opinion of Judge Tomka, para. 13.
123354. The ILC accepted the need for a transfer of attribution, from a movement to a
subsequently-emerging State, because this was the only way of avoiding a problematic
gap in the attribution of responsibility. He nce the ILC noted that, “[t]he predecessor
State will not be responsible for those ac ts [i.e. acts committed by an insurrectional
movement].” 239 As a consequence, “[t]he only possibility is that the new State be
required to assume responsibility for conduct committed with a view to its own
240
establishment”.
355. This continuity was distinguished sharply from cases of State succession, a point that
was made with particular clarity in the commentary to what was then draft article 15
adopted during the first reading:
“[A]cts committed by agents of the insurrectional movement before the
movement takes power are attributed to the State because there is
continuity between the apparatus of the insurrectional movement and the
new governmental apparatus of the State, not a succession of the State as
one subject of international law to the insurrectional movement as
241
another.”
356. During the second reading, the Commission conti nued to accept this di stinction. It thus
observed, albeit in a somewhat different context, that Article 10, para. 2, did not “cover
the situation where an insurrectional move ment 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“. 242
357. Accordingly in the present case, Article 10, para. 2, of the IL C Articles on State
Responsibility is simply inapplicable sin ce the case at hand diffe rs in two crucial
respects from the scenario envisaged by Article 10, para. 2.
239Draft articles on Responsibility of States for Inrnationally Wrongful Acts, with commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 51, para. 6 of the commentary to
Article 10.
240Ibid.
241Ibid. (emphasis added).
242Ibid., p. 51, para. 10 of the commentary to Article 10.
124358. First, unlike in the scenario envisaged in Articl1 e0, para. 2, the Court hasto deal with a case
of State succession. There existed a predecesso Srtate, the SFRY. Thee r emerged several new
successor States, including the FRY/Serbia. As the Court clarified in its judgment of 18
November 2008, on 27 April 1992, the FRYsucceededto the rights and obligations of the
former SFRY with respect to the Genocide Convn etion. This is therefore “essentially a case
of succession”,243 which Article 10, para. 2, doen sot attempt to deal with.
359. More importantly, there is in the present cas e, no “responsibility gap” to be filled, and
there is therefore no need to apply an excepti onal rule such as Ar ticle 10, para. 2, that
seeks to close such a gap. Unlike in the scenar io envisaged in Article 10, para. 2, at all
relevant times, there existed a State for the purposes of State responsibility, and at all
relevant times this State could be held responsible for internationally wrongful acts. 244
360. The rationale requiring, in view of the ILC, an exceptional transfer of attribution from a
movement to a new State ther efore does not apply in the pr esent case. To repeat the
Commission’s formulation, the principle ensh rined in Article 10, para. 2, of the ILC
Articles on State Responsibility had to be accepted because this was “[t]he only
245
possibility” to close the “responsibility gap” wh ich might otherwise exist, because
“[t]he predecessor State will not be responsible for those acts [i.e. acts committed by an
246
insurrectional movement].”
361. Article 10, para. 2 of the ILC Articles on Stat e Responsibility, provided it forms part of
customary law and further provided it matches the facts of a given case, quod non,
might justify the exceptional transfer of attribution in cases where there might otherwise
be a gap in responsibility. It does not, howev er, cover instances of State succession and
it is by no means intended to provide applicants in proceedings addressing breaches of
one specific treaty (the Ge nocide Convention) with a mu ltitude of respondents among
which it may choose.
243
244Cf. ibid.
ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118,
Separate Opinion of Judge Tomka, para. 10.
245Draft articles on Responsibility of States for Inrnationally Wrongful Acts, with commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 51, para. 6 of the commentary to
Article 10.
246Ibid.
125(e) The irrelevance of the Gabčíkovo-Nagymaros proceedings
362. In order to circumvent the manifold problems inherent in the applic ation of Article 10,
para. 2, of the ILC Articles on State Responsib ility to the case at hand outlined above,
Croatia also tried to place emphasis on the Court’s proceedings in the Gabčíkovo-
Nagymaros case. It rightly stressed that during t hose proceedings, the Court considered
acts of the former Czechoslovakia to be imputable to Slovakia, and noted that “Slovakia
(…) may be liable to pay compensation not only for its own wrongful conduct but also
for that of Czechoslovakia”. 247
363. However, that pronouncement must be situated wtihin its proper context. It was made in a
case in which the jurisdiction-confe rring instrument, the Slovak-Hungarian compromis,
specifically empowered the Court to take ac ocunt of conduct preceding the dissolution of the
Czech and Slovak Federal Republic. The Court’ s jurisdiction therefore was deliberately
extended to cover acts and omi ssions (as well as responsibility flowing therefrom) of a
predecessor State. This exceptional situation sim lpcannot be compared to the present case,
in which the jurisdictional clase in question, Article IX, sotretrospective in nature.
364. The matter was addressed in Judge Tomka’s separate opinion appended to the judgment
of 18 November 2008. Having hims elf participated in the Gabčíkovo-Nagymaros case,
Judge Tomka was adamant to distinguish it from the present proceedings. He noted:
“The situation in Gabčíkovo-Nagymaros Project (Hungary/Slovakia) was
different. There, although the relevant ats occurredbefore the dissolution of
Czechoslovakia, the Court wasgiven the jurisdiction andspecificallyasked
in the Special Agreement (Art. 2), conc luded by Hungary and Slovakia on 7
April 1993, “whether the Czech and So lvak Federal Republic was entitled to
proceed, in November 1991, to the ‘provisional so lution’ and to put into
operation from October 1992 this system” (Judgment, I.C.J. Reports 1997,
p. 11, para. 2). It is to be noted th at the acts, despit e in reality being
performed on the ground by Slovak authorities, were alwaysconsidered by
the Court as those ofCzechoslovakia (ibid., pp. 46-57, paras.60-88) and, in
relation to them, the Court refers to Czechoslovakia and notto Slovakia in
the operative clause (ibid., p. 82, para. 155 (1) B and C). When the Court
247
ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997,p. 81, para. 151.
126 addressed the issue of the consequencesof its Judgment, as it was asked in
Article 2, paragraph 2, of the Special Agreemen t, it recalled that:
“According to the Preamble of the Spec ial Agreement, the Parties agreed
that Slovakia is the sole successor State of Czechoslovakia in respect of
rights and obligations relating to the Gabčíkovo-Nagymaros Project.”(Ibid.,
p. 81, para. 151. The Court thereforeconsidered that:
‘Slovakia thus may be liable to pa y compensation not only for its own
wrongful conduct but also for that of Czechoslovakia, and it is entitled to
be compensated for the damage sustained by Czechoslovakia as well as
by itself as a result of the wrongful conduct of Hungary.’ (Ibid.)
In the present case, the Court wan sot given jurisdiction by the FRY to
consider the acts of the predecessor Stea,tthe SFRY. Nor is Serbia the sole
248
successor of the SFRY; it is one of thfeive equal successors of the SFRY.”
D. Conclusions
365. Summarizing this part of its argument, Serbia therefore respectfully submits that:
1) First, the Genocide Convention, and in particular its Article IX,
cannot be applied with regard to acts the occurred before 27 April
1992, i.e. the date upon which Serbia came into existence as a State
and became bound by the Genocide Convention; and
2) Second, Croatia cannot relyon Article 10, para. 2,of the ILC Articles
on State Responsibility inorder to transfer allega tions of responsibility
to Serbia for acts that occurrd before 27 April 1992, because
(i) the principle underlying Ar ticle 10, para. 2, of the ILC
Articles on State Responsib ility does not represent
customary international law;
(ii) the requirements of Articl e 10, para. 2, of the ILC
Articles on State Responsibility are in any event not
met in the case at hand;
248
ICJ, Case Concerning Application of the Conventionon the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118,
Separate opinion of Judge Tomka, paras. 14-15.
127 (iii)Article 10, para. 2, of the ILC Articles on State
Responsibility presupposes a violation of a primary rule
of international law by the “movement” over which the
Court can exercise jurisdiction, which is not the case in
these proceedings;
and finally also because
(iv) Article 10, para. 2, does not apply to situations in which
a predecessor State is responsible for the alleged acts.
366. By way of a subsidiary argument, Serbia will now demonstrate that the Court cannot
entertain claims as to alleged violations of the Genocide Convention that occurred prior
to 8 October 1991, i.e. the coming into existence of Croatia as a State.
3. In the Alternative, Croatia Cannot Claim Violations of the Genocide Convention
allegedly Committed prior to 8 October 1991
A. Introduction
367. As outlined above, Croatia alleges that the FRY/Serbia has committed, and is responsible
for, alleged violations of the Genocide Conve ntion which are said to have occurred before
the FRY/ Serbia becoming a contracting pa rty to the Genocide Convention and even
before the FRY/ Serbia existed as a State, 249i.e. prior to April 27, 1992, and that the Court
has jurisdiction ratione temporis to entertain these claims. Serbia has already addressed
these arguments in the previouspart of this Counter-Memorial.
368. However, Croatia goes even further. It also claims that the FRY/Serbia is responsible
vis-à-vis Croatia for alleged violations of the Genocide Convention, and that the Court
has jurisdiction ratione temporis with regard to acts, that took place before Croatia itself
became bound by the Genocide Convention, and indeed before Croatia itself even
existed as a State under international law – an argument that Serbia will now address.
249
See notably the references, in Croatia’s Memorialthe dates of the events at Vukovar and Dubrovnik
(especially at paras. 4.147, 4.153, 4.158, 4.161, 4.164, 4.173 & 5.235).
128369. In its judgment on Serbia’s preliminary objectio ns, the Court dealt with Croatia’s status
vis-à-vis the Genocide Convention in the following terms:
“Croatia deposited a notification of succession with the Secretary-
General of the United Nations on 12 October 1992. It asserted that it had
already been a party prior thereto as a successor State to the SFRY from
the date it assumed responsibility fo r its international relations with
respect to its territory, namely from 8 October 1991.” 250
370. Serbia does not contest that Croatia could become a contracting party to the Genocide
Convention by submitting a declaration of suc cession and that Croatia could thereby
become a contracting party thereof, effective 8 October 1991.
371. At the same time, it is obvious that Croatia was not a contracting party to the Genocide
Convention prior to that date. Indeed, Croatia itself does not even claim to have existed
251
as a State prior to 8 October 1991. Nevertheless, it its Me morial Croatia alleges
manifold violations of the Genocide C onvention, which, even according to Croatia
itself, occurred before this date. This includes inter alia, alleged “genocidal activities”
in Eastern Slavonia, which Croatia claims to have ta ken place between May 1991 and
252 253
November 1991, other “genocidal activities” in Western Slavonia, and finally acts
254
that are said to have taken place in Dalmatia, all of which do not in any event, as will
be demonstrated below, constitute acts of genocide.
372. It is against this background that Serbia will now argue in the alternative that the Court -
at the very least - lacks jurisdiction ratione temporis with regard to any alleged
violations of the Genocide Convention that have occurre d prior to the coming into
existence of Croatia as an independent St ate and thus also prior to it becoming a
contracting party to the Genocide Convention, namely on 8 October 1991.
250ICJ,Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia),Preliminary Objections, Judgment, 18 November 2008, General List No. 118, para. 94.
251Memorial, para. 6.08.
252
Memorial, para. 4.01 et seq.; see in particular paras. 4.14, 4.15, 4.17, 4.18, 4.22, 4.29, 4.32, 4.35, 4.40, 4.41,
4.48, 4.49, 4.40, 4.57, 4.58, 4.59, 4.64, 4.65-4.72, 4.74, 4et seq., 4.95, 4.100,4.102, 4.104, 4.109, 4.113.,
25317- 4.118, 4.134, 4.147, 4.149, 4.153.
Memorial, paras. 5.16, 5.17, 5.19, 5.26-5.27, 5.29-5.33, 5.37-5.40, 5.43-5.44, 5.46, 5.48-5.49, 5.52-5.55, 5.58,
5.64 , 5.70, 5.80, 5.82, 5.90, 5.93, 5.95, 5.97-5.98, 5. 103-5.106, 5.108-5.109, 5.111, 5.118-5.119, 5.122, 5.139,
5.140, 5.517, 5.160, 5.163, 5.166-5.168, 5.174, 5.177, 5.184-5.186.
254Memorial, paras. 5.207, 5.209, 5.217, 5.219, 5.233, 5.236-5.237.
129373. This additional argument, which Serbia had already briefly touched upon during the oral
255
proceedings on preliminary objections, is only raised in the event that the Court
should find that it has jurisdiction to consider alleged acts that took place prior to 27
April 1992, i.e. the date th e FRY/Serbia had become a State and had become bound by
the Genocide Convention, quod non.
B. The Court Cannot Entertain Alleged Viola tions of the Genocide Convention which
Occurred prior to Croatia Becoming a Contracting Party of the Genocide Convention
374. Serbia has already demonstrated that the Genocide Convention cannot be applied
retroactively vis-à-vis Serbia and that, in particul ar, it cannot be ap plied retroactively
with regard to a period in time when the FRY/ Serbia did not yet exist as a State.
375. The very same considerations apply mutatis mutandis and indeed a fortiori to Croatia as
the Applicant. It is thus for the very same reasons that Cr oatia cannot be considered to
have been bound by the Genocide Convention before 8 October 1991 leading to the
necessary conclusion that the Court lacks jurisdiction ratione temporis with regard to
events that occurred prior to this date.
376. In the case of Croatia, the arguments against any form of retroactive application of the
Genocide Convention are further supported by three additional reasons, namely
1) the lack of reciprocity as to the Court’s jurisdiction;
2) the fact that both the Applicant as well as the Respondent were not
contracting parties to the Genocid e Convention prior to 8 October
1991; and
3) to accept Croatia’s argument woul d result in the declaration of
succession having a retroactive effect and the purported retroactive
application of the Genocide Convention.
255
See CR 2008/9, pp. 9-10 (Đerić).
1301. The Lack of Reciprocity as to the Court’s Jurisdiction
377. By bringing a case relating to alleged vi olations of the Genocide Convention that
occurred prior to 8 October 1991, Croatia take s the position that it can bring a case
against other contracting parties to the Genocide Conventio n even with regard to acts
that occurred prior to Croati a itself having acquired that st atus and, indeed, before it
even existed as a State.
378. However, the very fact that it was not a party to the Genocide Convention prior to 8
October 1991, and indeed, that it was not even a State (and thus could not have been a
party to the Convention), means that Croa tia could not have b een a respondent in
proceedings before the Court prior to 8 October 1991, nor could it now be named as a
respondent in a case involving Croatian viol ations of the Genocide Convention that
occurred prior to 8 October 1991. Accordingly, the Court is not in a position to make
determinations as to the possible responsibility of Croatia for violations of the Genocide
Convention that occurred before 8 October 1991.
379. At the same time, Croatia claims to be entitl ed to do just this with respect to another
State, i.e. to bring a case against Serbia with regard to acts that are alleged to have
occurred prior to 8 October 1991, and thus during the same identical period of time that
Croatia itself cannot be held responsible before the Court.
380. However, as Shabtai Rosenne has put it: “T he starting point is that reciprocity is
256
inherent in the very notion of the jurisdiction of the Court.”
381. Accordingly, acknowledging Croatia’s right to bring a case for alleged violations of the
Genocide Convention that allegedly occurred prior to 8 October, 1991 would not only
lead to a fundamental imbalance,but it would also contradict the principle of reciprocity,
a principle which fundamentally underpin s the Court’s jurisdictional scheme.
256
S. Rosenne, The Law and Practice of the International Court of Justice 1920-2005(2006), Vol. III, p. 736.
1312. Neither Croatia nor the FRY/Serbia Were Contracting Parties to the Genocide
Convention prior to 8 October 1991
382. Serbia has already demonstrated that Croatiaonly came into existence as a State and was
bound by the Genocide Convention as of 8 Octo ber 1991, while for Serbia it was 27 April
1992. Accordingly, before 8 October 1991, both the Applicant,as well as the Respondent,
were not contracting parties to the Geno cide Convention which makes it even more
problematic to argue, as Croatia does, that treaty obligations under the Genocide
Convention could have existed between two non-State entities prior to 8 October 1991.
As a matter of fact, Croatia wants the Court to apply the Genocide Convention concerning
a period wherenot oneof the parties to these proceedings existed.
3. Accepting Croatia’s argument would lead to a combined retroactive effect of both its
declaration of succession, and the Genocide Convention
383. Croatia deposited a notification of succession with regard to the Genocide Convention
with the Secretary-General of the United Nations on 12 October 1992, 257i.e. not only
more than one year after its independence, butalso subsequent to the acts Croatia alleges
have been committed before 8 October 1991. Accordingly, it not only has to rely on the
retroactive application of the Genocide Convention, but it alsoimplicitly seems to suggest
that it could, by way of a unilateral act, retroactively establish the Court’s jurisdictionex
post factovis-à-vis all the other contracting parties to the Genocide Convention.
384. What is more, and as previously discusse d, Croatia also argues that the Genocide
Convention itself provides for its own retroac tive applicability even concerning acts
predating the existence of the State or States concerne d, i.e. predating 8 October 1991,
without indicating any temporal limitation for any such retroactive effect.
385. The implications of this “combined retroactivity” argument are astounding. If one were to
follow Croatia’s argument, it could have, in 1992, unilatera lly provided for the Court’s
jurisdiction vis-à-vis more than 140 contracting parties to the Genocide Convention,
regardless of when these other parties had themselves become contracting parties.
257
ICJ, Case Concerning Application of the Conventionon the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, General List No. 118, para. 94.
132 Accordingly, the Croatian unilateral act of notifying its successi on to the Genocide
Convention would ha ve triggered, in Croatia’s view, a retroactive applicability of the
Genocide Convention covering a period of more than 40 years, i.e. covering the years
1951 to 1992. As a matter of f act, Croatia’s approach would even lead to a retroactive
applicability of the Convention with regard toevents predating its entry into force, i.e.12
January, 1951, and eventually even its adoption, due to a mere unilateral act by one single
State, namely the Croatian notificationof succession dated 12 October 1992.
386. Moreover, accepting the Croatian argument would also mean that Croatia could have, by
a unilateral act, provided for the Court’s ju risdiction vis-à-vis all other contracting
parties concerning all possible violations of the Genocide Convention stretching from
1948 to 1992, and perhaps even before this period.
C. Conclusion
387. Accordingly, should the Court find that it is not barred from considering alleged
violations of the Genocide Convention pr edating 27 April 1992, it would, at the very
least, lack jurisdiction with regard to thos e acts that have allegedly occurred prior to 8
October 1991, i.e. the date at which Croatia came into existence as a State and itself
became bound by the Genocide Convention.
133134 CHAPTER V
THE HISTORICAL AND POLITICAL BACKGROUND
1. Introduction
388. This Chapter will discuss Chapter 2 of the Me morial that deals with the historical and
political background to the conflict that is the subject-matter of the present dispute.
389. At the outset, it should be not ed that the presentation of f acts in this chapter of the
Memorial has apparently been drafted as the Applicant’s “offi cial” and definitive
interpretation of events leading to the break up of the former Yugoslavia. As such, it
also deals with the events that are largely irrelevant to the pres ent dispute which only
concerns the crime of genocide.
390. More importantly, the Applicant’s presentation of events serves as part of a one-sided,
biased account, designed to portray Se rbia and the Serbs as having the sole
responsibility for the break up of the former SFRY and the crimes committed during the
armed conflicts connected with it. In general, it seems that the Applicant tried not just to
prove the alleged genocide but rather to justif y its official claim that an aggression by
the JNA and Serbia against Croatia took place in 1991. However, this claim is not only
irrelevant for the present proceedings, but it also utterly fails to take into account the
complexity of the break up of the SFRY. In a ny case, as will be demonstrated in this
Counter-Memorial, even if all the allegatio ns presented by the Applicant were accurate
(quod non), it does still not follow that the alleged conduct amounts to genocide.
391. In addition, the Memorial fails to deal with facts that are clearly relevant, but are not
favorable to the Applicant, such as the a dvent and the rule of Croatian nationalism and
the crimes against the Serb s in Croatia during the war 1991-1995. Similarly, as will be
discussed below, the genocide against the Serbs in Croatia committed by the
Independent State of Croatia during World War II is dealt with in a single sentence. 258
258
Memorial, para. 2.08.
135392. The present chapter will deal only with those a llgations in Chapter 2 that are relevant to the
present case. In any event, theRespondent expressly denies al l the Applicant’s claims that
are not confirmed by th e presentation of fact contained in the present Counter-Memorial.
393. The order of presentation in the present chapte r will be as follows. Firstly, it will deal
with the Nazi-puppet Independent State of Croatia and its genocide against the Serbs
during the period 1941–1945, because these even ts had a significant influence over the
events of 1991–1995.
394. Secondly, it will be demonstrated that the Memo rial not only presents a distorted and at
times inaccurate picture of Serbian nationalism , but it also fails to mention the rise of
Croatian nationalism that had a major impact on the conflict in Croatia. In this regard,
this chapter will deal with the rise of Cr oatian nationalism, and the discriminatory
policies and practices of the Croatian nationalist government elected in 1990 that were
directed against the Serbs in Croatia.
395. Thirdly, this chapter will deal with the de velopment of the Serb movement in Croatia
and its activity during the escalation of the crisis in the SFRY in 1989–1991.
396. Fourthly, this chapter will expose certain inaccuracies and omissions in the Applicant’s
overview of the political and military developments during the armed conflict in Croatia
in 1991–1995. In particular, it will deal with th e existence of the SFRY as a subject of
international law in 1991 and early 1992, as well as with the other relevant
developments in the period 1992–1995, such as the establishment of the UN protected
areas in Croatia, and the establishment of the Republic of Serbian Krajina.
2. The Independent State of Croatia and the Genocide against Serbs 1941–1945
397. The Memorial devotes only one single paragr aph to the Independent State of Croatia
and only one sentence in this paragraph to the genocide it committed against the Serbs:
“Ustashas implemented Nazi policies and persecuted Serbs, Je ws, Roma/Gypsies and
259
anti-fascist Croats”. However, the Respondent consid ers that that the Independent
259
Ibid.
136 State of Croatia and the genocide against th e Serbs had such an influence on the actors
of events of 1991-1995 on all sides that they must be discussed and taken into account
in any consideration of these events. The pr esent section will provi de some basic facts
about the Independent State of Croatia and the genocide it committed. The present
section is followed by a section dealing with nationalism that will show to what extent
the Independent State of Croatia and the Us tashe movement were rehabilitated during
the time that the Croatian nationalist government was in power in the 1990s.
A. The Creation of the Independent State of Croatia
398. The Independent State of Croatia (“Nezavisna država Hrvatska”) 260 was proclaimed by
the Ustashe on 10 April 1941 with the support of Nazi Germany, Italy and other Axis
powers occupying Yugoslavia. The Ustashe was a terrorist organization created in 1931
that sought to create an independent and ethnically cleansed Croatian state. 261The
movement’s founder and leader, Dr. Ante Paveli ć, headed the Independent State of
Croatia as its “Poglavnik” (“Führer”).
399. The Independent State of Croatia encompa ssed most of the present-day Republic of
Croatia, all of Bosnia and Herzegovina, as well as Srem (Sirmium), part of present-day
262
Serbia, stretching all the way to th e town of Zemun, near Belgrade. The Independent
State of Croatia was a Fascist puppet state that served the political interests of Fascist
263
Italy and Nazi Germany.
B. The Genocidal Policies
400. Upon the assumption of his office as prime minister of the Independent State of Croatia,
Pavelić was sworn-in on the “Principles of the Ustashe Movement”, a document which
was signed with his own hand in 1931. 264 This document envisaged the creation of a
260For more, see L. Hory & M. Broszat, Der Kroatische Ustascha-Staat 1941-1945 (1964); S.G. Payne, A
History of Fascism 1914–1945 (1995), pp. 405-411; I. Gutman (Editor-in-chief), Encyclopaedia of the
Holocaust, Vol. 2, pp.739-740; Encyclopaedia Britannica, 1943 – Book of the Year , p. 215, Entry: Croatia;
261. Hoare, ‘The Ustashe Genocide’, South Slav Journal, Vol. 25, No. 1-2, 2004, pp. 29-38.
262F. Jelić-Butić, Ustaše i NDH [Ustashe and the Independent State of Croatia], Zagreb, 1977, p. 21.
263Map of the Independent State of Croatia (Annex 1).
See, e.g. J.H.W. Verzijl, International Law in Historical Perspective (1974), p. 313.
264A. Pavelić, The Principles of the Ustashe Movement, 1931, translated by Siniša Đurić, available at
http://pavelic-papers.com/documents/pavelic/ap0040.html.
137 Greater Croatia within its “historical boundari es”, a state in whic h only Croats by birth
or origin would make decisions. The Ustashe ideology created a theory about a pseudo-
Gothic origin of the Croats in order to raise their standing on the Aryan ladder. 265 Ethnic
cleansing and land gain were at the centre of the Ustashe agenda. 266
401. According to the data of the Nazi Germany Ministry of Foreign Affairs, the population
of the Independent State of Croatia in April 1941 wa s 6,285,000 people, out of which
there were 3,300,000 Croats (52.50%); 1,925,000 Serbs (30.62%); 700,000 Muslims
267
(11.13%) and 360,000 others (5.72%). It is apparent that the main obstacle in the
Ustashe’s plan to establish an ethnically pure Croatian state was the large number of
Serbs in the Independent State of Croatia.
402. Soon after it was created, the Independent State of Croatia adopted a number of decrees
that were to provide a legal framework for a state of terror and the genocide that was to
268
follow. At the same time, the Ustashe were ready to put this legalized system of terror
into practice.
265
Statement of Ante Pavećligiven on 13 April 1941: “We do not have and we have never had anything to do with Serbs.
We are distinguished from Serbs by our religion and our physical appearance. It is difficult to mistake a Croat for a Serb.
We are not Slavs”, in F. Jećl-iButić,Ustaše i NDH[Ustashe and the Independent State of Croatia], Zagreb, 1977, p. 139.
266 A. Pavelić, The Principles of the Ustashe Movement, 1931, paras. 8 & 11.
267 F. Jelić-Butić, Ustaše i NDH [Ustashe and the Independent State of Croatia], Zagreb, 1977, p. 106.
268A brief survey of names and abstracts of some of th e NDH decrees will unmistakably show the nature of this
“State” and its intentions:
- The Legal Decree on the Defence of the People and the State of 17 April 1941 practically introduced a
permanent state of emergency: “Whoever violates or has violated or who offends or has offended in any
way the honour, life’s interest of the Croatian peopleor who threatens in anyway the survival of the
Independent State of Croatia or its state authorities, ev en if such an act is only attempted, shall be held
accountable for the crime of high tr eason.” As is clear, this decree was applied retroactively, and the
sentence for this offence was death.
- The Legal Decree on Courts Marshal of 17 May 1941 and the Legal Decree on an impromptu Court
Marshal of 24 June 1941 were intended to ensure as effective as possible carrying out of terror, based
on the previous legal decree. Such courts pronounced only one type of sanctions – the death penalty to
be executed three hours after the sentence was passed.
“[These] methods were initially applied on a massive scale, especially against the Serbs and Jews,
and later on, against the Croats as well. Thousan ds of innocent people – only because they were
born as Orthodox Christians or Jews, or simply because they were not Ustashe – were killed by
firing squads or slain for no reason whatsoever.” Šime Balen, Pavelić, Zagreb, 1952, p. 65.
The Legal Decree on the Prohibition of the Cyrillic Script of 25 April 1941 revoked the right of Serbs to
use their own alphabet;
The Legal Decree on Protecting Croatian People's Property of 18 April 1941, as well as three legal
decrees of 30 April 1941 – on c itizenship, on race and on the protectio n of Aryan blood and honour of
the Croatian people, embodied a number of provisions on discrimination against Jews and Roma;
The Legal Decree on Sending Disobedient and Danger ous Persons to Forced Labour at Concentration
and Labour Camps, dated 25 November 1941, introduced a system of camps run by the Ustashe
Surveillance, as one of the legal characteristics ofthis state. No legal remedy was available against
decisions based on this legal decree;
138403. The genocidal plan began to be implemented as soon as the Government took office. In
preparation for the commission of crimes, Ussth ae leaders held many rallies where the Croats
were pitted against the Serbs w ith inflammatory speeches. The press served as an important
269
method in the achievement of this plan. What followed immediately were the dismissals of
Serbs from public services; the imposition ofa ban on their movement; Serbs had to wear
270
special bands around their arms; and eventualtlh yey were expelled from the country.
404. The State policy concerning the Serbs was decreed by Dr. Mladen Lorkovi ć, the NDH
Minister of Foreign Affairs, in his speech in Donji Miholjac on 6 June 1941. He said:
“Croatian people must clean itself from all elements which are its misfortune;
which are foreign and strange to thap teople; which dissolute the fresh powers
of that people; which were pushing th at people from one evil to another
through decades and centuries. Tho esare our Serbs and our Jews.” 271
405. On 22 July 1941, the genocidal policy was cl early announced by Mile Budak, Minister
of Religion and Education of the Indepe ndent State of Croatia, in his widely
documented speech at Gospić Town:
"For the rest – Serbs, Jews and Gypsies – we have three million bullets.
We will kill one part of the Serbs, th e other part we will resettle, and the
remaining ones we will convert to the Catholic faith, and thus make
272
Croats of them.”
The Legal Decree on the Confiscation of the Propert y of Persons Disturbing Public Peace and Order,
dated 27 December 1941, formalized robbery in the name of the Croatian state;
The Legal Decree on the Suppression of Violent and Punishable Ac ts against the State, Certain
Individuals or Property, dated 20 July 1942, was a response to the increasingly spreading of the Serb
rebellion in the NDH, which extended the sending to camps of the families of persons "disturbing
public law and security or violating peace and tranquility of the Croatian people";
The Legal Decree on the Nationalization of Jewish Property, dated 30 October 1942, had a title which
spoke for itself.
See Annex 2. The full texts of these decrees are available in Croatian in Zbornik zakona i naredaba Nezavisne
Države Hrvatske, izdanje Ministarstva pravosudja i bogoštovlja, Zagreb, 1941 i 1942 [Code of Legal Decrees
and Orders of the Independent State of Croatia, edition of the Ministry for Justice and Religion, Zagreb, 1941-
1942]; also available at http://www.crohis.com/izvori/ustzk.pdf
269As early as 11 April 1941, an editorial comment published in the leading daily of the Croatian People
branded Serbs collectively as the greatest and perennial enemy of Croats, sounding a warning that “they will be
judged by the righteous Croatian people”. Quoted by F. Jeli ć-Butić, Ustaše i NDH [Ustashe and the Independent
State of Croatia], Zagreb, 1977, p. 163.
270Ibid. p. 165.
271
The speech was published in Croatian People on 28 June 1941. Quoted by F. Jeli ć-Butić, Ustaše i NDH
272tashe and the Independent State of Croatia], Zagreb, 1977, p. 164, note 95.
M. Peršen, Ustashe’s camps [Ustaški logori], Zagreb, 1990, p. 20; also see, H. Neubacher,
Sonderaufrsgsudost 1940-45, Bericht eines fligenden Diplomaten (1956), p. 18 and ICTY, Tadić, IT-94-1-T,
Trial Chamber Opinion and Judgement, 7 May 1997, para. 62.
139C. Genocide Against the Serbs
406. The Independent State of Croatia perpetra ted genocide against the Serbs on a massive
273
scale. The parts that follow will present basi c information about the ways in which
this was carried out.
1. Massacres and Death Camps
407. The Ustashe committed the first massacres inthe spring of 1941, killing 196 Serbs at the
274
village of Gudovac near Bjelovar and around 400 at the village of Blagaj near Slunj. In
the following months, the mass-killings became commo nplace, particularly in
Herzegovina: thus, in June 1941 Ustashe executed 140 Serb peasants near Ljubinje; 180
Serbs from village Korita near Gacko; anothe r 160 Serbs near Ljubinje; a further 80 Serbs
near Gacko; approximately 280 Serbs n ear Opuzen; 90 Serbs near Ljubuško, etc. 275
408. Approximately two thousand Serbs were execu ted in the town of Glina, in central
Croatia. Firstly, the Ustashe arrested and shot several hundred Serbs from the Glina area
in May 1941. Most of the Serb population then went into hiding in the forests. The
Ustashe responded by offering to spare those Serbs who would convert to Roman
Catholicism. Many Serbs took up this offer and presented themselves at the local church
in Glina, in August 1941. Afte r the last one had entered into the church, the doors
locked shut. The Ustashe began to mass acre the victims using knives and clubs.
Hundreds of Serbs were brutally killed. On ly one of the victims, Ljuban Jednak,
survived by pretending to be dead. 276
409. Jadovno was set up as a death camp in May 1941 in the open, on Mount Velebit, in
Croatia’s Lika region. Many Serbs and Jews from the Gospi ć town prison were
temporarily deported to Jadovno in order to await their turn for execution. From 11 May
273
“Accurate figures will probably never be known, but it is clear that Pavelic’s Ustashe massacred huge
numbers of Serbs wherever they could be found.” Central Intelligence Agency (CIA), Balkan Battlegrounds: A
274itary History of the Yugoslav Conflict 1990-1995(2002), Vol. I, p. 81 (Peace Palace Library).
I. Goldstein, ‘Nezavisna Država Hr vatska 1941: put prema katastrof(The Independent State of Croatia
1941: A Road to Disaster), in I. Graovac (ed.), Dijalog povijesničara-istoričara (Dialogue of Historians), No. 7,
Friedrich Naumann Stiftung, Zagreb, 2002, p. 144.
275M. Peršen, Ustashe’s camps [Ustaški logori], Zagreb, 1990, pp. 38-39; see also F. Jeli ć-Butić, Ustaše i NDH
[Ustashe and the Independent State of Croatia], Zagreb, 1977, pp. 166-167.
276Statement no. 33 of the State Commission for the Determination of the Crimes of the Occupation Forces and
their Collaborators, D. no. 406/45, dated 2 March 1945.
140 to 21 August 1941, Jadovno was the place where thousands of victims were killed.
Estimations of the number of victims made by historians vary from 15-25,000 277to
35,000, 278and even 40,000. 279
410. Besides Jadovno, there were other camps for Se rbs, Jews, Roma and anti-fascist Croats
in the Independent State of Croatia. 280 A massive armed rebellion of Serbs in Eastern
Herzegovina in June 1941 accelerated the prep arations for a solution of the Serbian
question through concentration camps. The most notorious one was the Jasenovac camp
complex, which will be discussed below.
411. In addition to the listed camps, there were special camps for children who were
separated from their parents. Such camps existed in the town of Sisak and a small place
called Jastrebarsko, on the road between Zagr eb and Karlovac, in which children were
detained in dire conditions. In Sisak, 5,000 – 7,000 Serbian, Jewish and Roma children
281
were sent to the camp, according to the estimates made by historians. Some 1,600 of
282
these children died in the camp itself. In the period from 12 July to 26 August 1942, a
283
total of 3,336 children were sent to Jastrebarsko. In the words of the gravedigger
Franjo Ilovar, who was paid for his labour by the number of bodies he buried, in less
284
than a month and a half, 468 children died of starvation and disease in the camp.
277M. Peršen, Ustashe’s camps [Ustaški logori], Zagreb, 1990, p. 102.
278F. Jelić-Butić, Ustaše i NDH [Ustashe and the Independent State of Croatia], Zagreb, 1977, p. 186.
279Djuro Zatezalo, Jadovno, Kompleks ustaških logora 1941 (Jadovno: A Complex of Ustashe Camps, 1941 ),
Vol. I, Muzej žrtava genocida (Genocide Victims Museum), Belgrade, 2007, pp. 382-383 stating that 40,123
280ple, including 38,010 Serbs, 1,988 Jews and 124 other nationalities were killed in Jadovno.
They were established already in the spring of 1941, in a place called Danica near Koprivnica, in the island of
Pag (which also served for the extermination of Serbs and Jews from the areas of Lika and Dalmatia); in
Lobograd, in Zagorje region, Tenja near Osijek, and in Travnik and Djakovo. Furthermore, pre-war prisons in
Lepoglava near Varaždin, Kerestinec near Zagreb and Kruš čica near Vitez were also used for this purpose (M.
Peršen, Ustashe’s camps [Ustaški logori], Zagreb, 1990, p. 44.).
281
282M. Peršen, Ustashe’s camps [Ustaški logori], Zagreb, 1990, p. 290.
Ibid.,p. 291. This is how General EdmundGlaise von Horstenau, the representative of the German army in Serbia
and Croatia, described his experience with the inspotni of the Sisak concentration camp in November 1942:
“We now went into the concentration camp in a converted factory. Frightful conditions! Few men, many
women and children, without sufficient clothing, sleeping on stone at night, pining away, wailing and crying! …
And then the worst of all: a room along whose walls,lgion straw which had just been laid down because of
my inspection, something like fifty naked children, half of them dead, the other half dying. One should not
forget that the inventors of the KZ were the Britishe Boer War. However, such places have reached their
peak of abomination here in Croatia, under the Poglavnik installed by us. The most wicked of all must be
Jasenovac, where no ordinary mortal is allowed to peer in.” (Translated from Peter Broucek (editor), Ein
General in Zweilicht: Die Erinnerungen von Edmund Glaise von HorstenV aiue,nna, 1980, Vol. 3, p. 167).
283M. Peršen, Ustashe’s camps [Ustaški logori], Zagreb, 1990, p. 288.
284 Notebook of Franjo Ilovar, a grave digger, exib ited in the Musem Kozara, Mrakovica, reprinted in R.
Milosavljevic, Dečji ustaški koncentracioni logor Jastrebarsko (Jastrebarsko. The Ustashe Concentration Camp
for Children), 2009, p. 81.
1412. Jasenovac
412. In July 1941, the Ustashe government decided to build a new complex of camps, which
285
stretched along the banks of the River Sava, in Slavonia. Jasenovac was the largest
complex of concentration camps in the Inde pendent State of Croatia during the Second
286
World War, and as such it needs to be addressed separately.
413. As was the case in other concentration camps in the Independent State of Croatia, the
Serbs constituted the majority of prisoners in Jasenovac, where they found themselves
alongside Jews, Roma and anti-Fascist Croats.
414. The majority of inmates in Jasenovac were de stined to perish in systematic executions
that took place at various locations in the camps complex. Killings were conducted with
287
cruelty and outright sadism. In order to accelerate the executions, from 1942 the
288
Ustashe cremated corpses of many of their victims, as well as live inmates.
415. The Report of the State Commi ssion of Croatia for the Inves tigation of the Crimes of
the Occupation Forces and their Collabora tors, dated 15 Novemb er 1945, stated as
follows:
“[I]t is not possible to answer the question of precisely how many victims
died in Jasenovac. Few prisoners who spent some time in the camp were
released, and less than a hundred managed to break out of the camp in the
final moments.
285For a map of the location of the Jase novac concentration camps, see A. Mileti ć, Koncentracioni logor
Jasenovac 1941–1945. Dokumenti[Concentration Camp Jasenovac 1941–1945. Documents] (1986).
286F.Jeli ć-Butić, Ustaše i NDH [Ustashe and the Independent State of Croatia], Zagreb, 1977, p. 186. This
complex of camps was composed of Camp no. I (Krapje), Camp no. II (Bro čica), Camp no. III (Brick Factory
also known as Jasenovac, Camp of Death), Labour Camp . No. IV (Tannery) and Camp no. V (Stara Gradiška),
287h some places of mass-executions: Mlaka, Jablanac, Uštica, Košutarica, Granik and the biggest one - Gradina.
This is how the witness Jakob Finzi described his experience at the camp:
“I worked as an undertaker in the camp graveyard only for ten days. During that period of time I buried corpses
without heads, without arms, with cr ushed skulls, with missing fingers antoes, with nails driven into their
chest, with missing sexual organs, mutilated corpses blac k and blue from beatings. During those ten days we
buried about 3,000 corpses. Among them I recognized the corpses of five undertakers finished off by the
Ustashe.” Zemaljska komisija Hrvatske za utvrđivanje zločina okupatora i njihovih pomagača, Zločini u logoru
Jasenovac [The State Commission of Croatia for the Determ ination of the Crimes of the Occupation Forces and
288ir Collaborators, Crimes in the Jasenovac Camp], Zagreb, 1946, p. 26 (“State Commission of Croatia”).
A. Miletić, Koncentracioni logor Jasenovac 1941–1945. Dokumen[ tiConcentration Camp Jasenovac 1941–1945.
Documents] (1986), Vol. I, pp. 30, 557–558.
142 It was pointed out earlier that the Ustashe sent prisoners to Jasenovac for
labor, but it has also been stated that many transports of men, women and
children arrived at Jasenovac only to be taken inside and liquidated by
the Ustashe, or killed nearby without being seen inside the camp at all.
The most intense years of the Ustash e terror and mass crimes were 1941
and 1942. The whole of 1943 and half of 1944 were marked by relative
moderation, which means that mass executions of inmates were not
carried out as often and on such a scale as before. From August of 1944
until April of 1945, large transports began to arrive and liquidations were
repeated again en masse. ...
We will mention below some fifty mass crimes carried out by the Ustashe
in Jasenovac, and if we add the number of prisoners who were killed
individually to the number of victims killed in mass executions, we arrive
at the figure ofapproximately500,000 to 600,000[emphasis added].
As we have pointed out, it will never be possible to determine the exact
number of victims swallowed up by Jasenovac. However, based on the
research conducted by this State Comm ission, we can conclude that the
above figure approaches reality. “ 289
416. This estimation was accepted by the Yugoslav Government, and thus became the sole
official estimation of the number of Jase novac victims. The estimation of hundreds of
thousands of victims has been accepted a nd cited by the Yad Vashem Encyclopedia of
290 291
the Holocaust and by Israel Gutman. The large number of victims in the Jasenovac
camp of death was confirmed by many witnesses who testified before the different
international and domestic courts.
417. In this context, it should be noted that the exact number and ethnic origin of victims in
the Jasenovac camp and in the Independent Stat e of Croatia has been the subject of a
bitter debate, in particular in the years be fore the armed conflict in Croatia in 1991. As
one could expect, this debate was not c onfined to academia and it has had serious
289Report of the State Commission of Croatia, op.cit., p. 33.
290Encyclopedia Entries, International School for Holocaust Studies, Yad Vashem – Jasenovac, available at –
http://www1.yadvashem.org/education/entries/english/29.asp
291Encyclopedia of the Holocaust, edited by Israel Gutman, Vol. 1, 1995, pp. 739-740, available at –
http://www.jasenovac.org/whatwasjasenovac.php
143 political repercussions. Indeed, the late President of Croatia, Dr. Franjo Tu đman, made
a name for himself at the time when he was a dissident and a historian, by advocating an
extreme downward revision of the number of victims. 292 It is worth noting that
President Tudjman in 1993 again stirred pass ions by proposing that the remains of the
Ustashe killed by the Yugoslav Partisans in 194 5 be reburied together with the victims
of the Ustashe at Jasenovac. 293This met with resistance, both from the Serbs and anti-
Fascist Croats.
3. Conclusion
418. The total number of victims of genocide in the Independent State of Croatia is difficult
to precisely establish. It is however a well- known fact that sometimes entire villages
perished without an eye-witnes s to testify later about the vi ctims. In particular, it is
difficult to establish the precise number of the victims who were killed in the largest
death camp in Jasenovac. Leaving aside discussions about the exact number of victims,
the fact that genocide was committed agains t the Serbs in the Independent State of
Croatia during World War II is not seriously contested.
419. The 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 acc ount. However, as already mentioned, the
Memorial fails to discuss either this genocide or the Independent State of Croatia in any
meaningful detail.
420. As will be discussed in the next section, Se rbian and Croatian nationalism went hand in
hand as the crisis in the former SFRY aggravat ed to the level of an armed conflict. For
292
See K. Pfeifer, ‘Croatia – Tudjman and the genesis of Croatian revisionism’Searchlight Magazine, 2003
(Annex 10).
Tuđman’s estimation is based on the work of the Croatian researcher Vladimir Žerjavić, who used statistical
methods to obtain information that between 83,000 and 100,000 people were killed at Jasenovac, see Memorial,
para. 2.53. However, the District Court in Zagreb, which tried and convicted Dinko Ljubomir Šaki ć, one of the
commandants of the Jasenovac camp, in 1998, did not accept Žerjavić’s analysis and results. Namely, the court
expert Dr. Josip Jur čević, lecturer on the general history of theentieth century at Cr oatian University in
Zagreb, denied Žerjavić’s and all other demographic estimations, concluding that all of them, given the present
level of research, were not scientifically based. The District Court in Zagreb, Trial of Dinko Ljubomir ć,ki
Judgement No. V K-242/98-257, dated 1 October 1999, p. 34.
293 Speech of Dr. Franjo Tuđman at the Second Congress of the Croatian Democratic Party, October 1993, cited
in Viktor Ivančić, Točka na U , Split, 1998 (Annex 11).
144 their own purposes, both nati onalisms made references to the genocide of 1941–1945
and the Independent State of Croatia. It is not contested that Serbian nationalists
misused the recollections of these past even ts, although the claims made in this regard
by the Applicant are not always accurate, as will be demons trated in the next section.
What is important in the present context, however, is that the Memorial completely fails
to mention the role that the Croatian nationa lism had in the events that are the subject-
matter of the present dispute and in particular its rehabilitation of the Independent State
of Croatia, Ustashe movement and its symbols.
3. The Rise of Nationalism in the SFRY
A. Introduction
421. According to the Memorial, the sole cause of the armed conflict in Croatia was Serbian
nationalism, personified by Slobodan Milošević, the former president of Serbia. This is
evident from the titles of sections dealing w ith the events from Tito’s death in 1980 to
the beginning of the conflict in 1990-1991: “Phase One: Th e Rise of Greater-Serbian
Nationalism 1981–87”, “Phase Two: Slobodan Milošević’s Rise to Power”. 294
422. As will be shown below, the Applicant’s account of the rise of Serbian nationalism is
frequently misleading and inaccurate. But even more importantly, the Memorial
completely fails to mention Croatian nati onalism and its rise at the end of the 1980s.
The present section will also discuss this l acuna by showing that Croatian nationalism,
led by the Croatian nationalist government, is directly responsible for the outbreak of
the conflict in Croatia by its rehabil itation of the Ustashe movement and its
iconography; by pursuing the idea that Croa tia should be an ethno-centric State of
ethnic Croats; and by abolishing long-standing national rights of the Serbs in Croatia.
423. This is of course not to say that Croatian nationalism bears the sole responsibility for the
conflict. This Counter-Memorial will not atte mpt to justify or defend the undemocratic
regime in Serbia before October 2000 in which Serbian nationalism was the leading
political idea. However, Serbian nationalism was accompanied and mutually re-
294
See Memorial, pp. 31 & 41.
145 enforced by the nationalisms that flared up in Croatia and in othe r parts of the SFRY.
All those in power in the former Yugoslav republics became nationalistic in the late
1980s, although their methods an d capabilities differed; all of them contributed, to a
greater or lesser extent, to the incitement of inter-ethnic hatred and the dissolution of
Yugoslavia.
424. Although the responsibility of political leaders and their governments cannot a priori be
equated, it is also clear that none of the pa rties can be held sole ly accountable for the
conflict. A slow reaction by the internatio nal community also contributed to the
outbreak and protracted duration of the conflicts in the former Yugoslavia.
425. The Respondent would like to emphasize that the wars in the territory of the former
Yugoslavia did not involve peoples as such, but only those who professed to represent
the peoples. The responsibility for the misd eeds perpetrated during the conflicts of
1991-1999 is individual and the Government of Serbia strongly supports all efforts to
bring those responsible to justice, both be fore the International Criminal Tribunal for
the Former Yugoslavia and national courts.
B. The Rise of Nationalism
1. Introduction
426. As already noted, the account of events l eading to the conflict in Croatia in 1991-1995
presented in the Memorial fails even to mention the role played by Croatian
nationalism. In fact, the method used by the Memorial is to provide a simplified and
exaggerated account of Serbian nationalism, while concealing the role played by the
Croatian one or providing a “sterilized” account of events, such as in its depiction of the
Independent State of Croatia. The result is a one-sided and obviously inaccurate
presentation of the facts. In this sec tion, the Respondent will provide additional facts
and analysis that will contribute to a more complete picture of the relevant events.
427. The Memorial marks the beginning of the ri se of Serbian nationalism in Serbia’s
questioning of the basic principles of th e 1974 SFRY Constitution at the beginning of
146 295
the 1980s. However, in its effort to portray all Serbian leaders as nationalists and
legitimate Serbian grievances as intrinsically nationalistic, the Memorial fails to
distinguish between the initiative of Serb ian communist politicians who were not
nationalists to review the constitutiona l position of Serbia under the 1974 Yugoslav
constitution and the positions later adopted by the Memorandum of the Serbian
Academy of Arts and Sciences, which were in fact in opposition to the Communist
government. 296
428. As far as the 1986 Memorandum of the Serbian Academy of Arts and Sciences is
concerned, the Memorial devotes 4 pages to discussing this document. According to the
Memorial, this was “a catalytic event” in respect of the genocidal acts perpetrated by the
Serbs against the Croats in 1991–1995 and “one of the key developments which gave
rise to the circumstances in which a genocide [sic] could be perpetrated in Croatia.” 297
This, however, is an enormous exaggerati on, as evinced even by the Applicant’s
298
description of its contents. Neither did the Serbs have any intent to perpetrate
genocide against Croats nor was the Memorandum a document which contemplated any
such event.
429. While the Applicant sees the roots of the Serbian nationalistic movement in Serbian
challenges to the 1974 Constitution, it fails to mention that this constitution, which had
substantial confederal elements, was adopt ed partly in respons e to the rise of
nationalism in the SFRY in the early 1970. Nati onalism was particul arly strong in
Croatia, with a popular nationa list movement “Maspok” which was suppressed by Tito
in 1971. The Memorial, however, describes th is movement as a likeable champion of
decentralization and democratization of the communist so ciety, without mentioning its
nationalistic elements. 299 It is a fact that Croatian nationalism never altogether
disappeared after World War II, in particular its extremist forms embodied in various
Ustashe terrorist groups, which committed numerous terrorist acts against the SFRY
and its citizens.300
295
296See Memorial, paras. 2.39 & 2.41.
297See Memorial, paras. 2.39, note 27, 2.41–2.42 & 2.47.
298See Memorial, para. 2.43.
299See Memorial, paras. 2.45-2.47.
See Memorial, para. 2.11.
300See Chronology of the Ustashe Movement after World War II (Annex 8), and E. Zuroff, Operation Last
Chance, New York, 2009, pp. 131–150 (Annex 9).
1472. The Revival of Croatian Nationalism
430. In 1989, the creation of the Croatian Democr atic Community (“Hrvatska demokratska
zajednica”, “HDZ”) marked the revival of th e Croatian nationalism. The leader of the
HDZ was Dr. Franjo Tu đman who advocated for Croatia’ s right to self-determination
and sovereignty. 301 Ultimately, this meant the independence of Croatia from the SFRY.
Dr. Tuđman was a nationalist dissident and hi storian who was known for his view
which reduced the number of victims killed in the Jasenovac concentration camp. 302
303
431. The first congress of the HDZ was held on 24-25 February 1990 “in an atmosphere of
304
intense emotion and nationalism...” On that occasion, Dr. Tuđman made clear that he
thought that the fascist Independent State of Croatia was “an expression of the historical
305
aspirations of the Croatian people”. Soon afterwards, he volunteered the following
306
remark: “Thank God, my wife is not a Serb or a Jew.” These were the first signs of
the rehabilitation of the Independent Stat e of Croatia and, with it, the Ustashe
Movement, that was to take place while Dr. Tu đman was President of Croatia from
307
1990 to 1999.
432. Moreover, the rhetoric of the HDZ was cl early inflammable and led to ethnically
motivated incidents against the Serbs already in 1989. According to one observer,
“During the summer of 1989, extrem ist followers of the HDZ in
Dalmatia mounted enough physical at tacks on local Serbs to make the
new party’s nationalist rhetoric se em truly threatening. Krajina Serbs
staged their own confrontations with the local Croats and, encouraged by
the Milosevic media, began to demand autonomy within Croatia, cultural
if part of Yugoslavia and political if not.” 308
301See L. Silber & A. Little, The Death of Yugoslavia (1996), p. 86, Preliminary Objections, Annex 1.
302
303See supra footnote 295.
304See http://www.hdz.hr/default.aspx?id=100 .
See L. Silber & A. Little, The Death of Yugoslavia (1996), p. 87, Preliminary Objections, Annex 1.
305The relevant part of the speech is reprinted in N. Bać, The Serb Rebellion in Croatia 1990–1995 (Srpska
pobuna u Hrvatskoj 1990-1995.),Zagreb, 2005, p. 58.
306See L. Silber & A. Little, The Death of Yugoslavia (1996), p. 86, Preliminary Objections, Annex 1.
307See also Efraim Zuroff, op.cit. (Annex 9).
308 nd
J. Lampe, Yugoslavia as History: Twice There was a Country (2 ed., 2000), p. 354. See, also. S. Woodward,
Balkan Tragedy (1995), p. 107.
148433. It is important to note that thrise of the HDZ took place at a time when inter-ethnic tensions
were already running high in the SFY R. It is not contested that,t the time, the government of
Mr. Milošević stirred nationalist passions in Serbia. But it is equally clear that the
overwhelming election victory of the HDZ in April - May 1990 hadcreated Mr. Miloševć i’s
counter-part in Croatia. In su ch situation, minorities found th emselves in a particularly
precarious position. Being a Croat in Serbia unr dTito was not a disadvantage; it became one
during the rule of Mr. Miloševć i. Likewise, in times of ostenattious and aggressive Croatian
nationalism, which strived for independence, thS eerbs in Croatia reacted with anxiety to the
prospect of becoming a minority in Mr. T đuman’s Croatia, separated from Yugoslavia.
3. Hate Speech
434. The Memorial has a whole section dealing wi th “The Demonization of the Croats” as
309
one element of Serbian nationalism. The Respondent does not dispute that hate
speech was abundant in Serbian media at the end of the 1980s and during the 1990s, but
this phenomenon was not confined to Serbia. As will be seen below, Croatia did not lag
behind in this regard at all.
435. As far as the claims related to hate speechin the Serbian media are concerned, including a
310
study of hate speech anne xed to the Memorial, none of the evidence presented therein fall
under the legal elements of the crime of ge nocide. Although this 26 pages-long study has a
part specifically entitled “Articles aimed at intiig genocide”, this partis only one and a half
pages long and contains no anal ysis whatsoever. It merely reproduces titles of certain
newspaper articles, without however providing any reference as to their origin, and also
provides certain quotes which clearly do no ctnstitute incitment to genocide.
436. The principal evidence of “demonization” of Croats provided in the Memorial concerns
the claims made by a Serbian historian about the genesis of the 1941 genocide in
Croatia, which are never actually refuted by the Applicant, not even in a footnote. 311
Significantly, no acknowledgment of the 1941 genocide against the Serbs is to be found
anywhere in the Memorial.
309See Memorial, p. 38.
310Memorial, Appendices, Vol. 5, appendix 3.
311See Memorial, paras. 2.51–2.52.
149437. According to the Memorial, further evidence of “demonization” of the Croats concerns
inflammatory articles about the Ustashe con centration camp in Jasenovac, in particular
312
allegedly exaggerated numbers of those murdered in the camp. However, these
numbers actually correspond to the official fi gures of those killed, as mentioned by the
313
Applicant itself. In fact, the Applicant criticizes “Serb historians and commentators”
for not accepting the number of victims established by certain subsequent studies, which
314
were later however not even accepted by the Zagreb District Court.
438. In line with its one-sided approach, the Memorial makes no mention of the hate speech in
Croatia that was directed against Serbs. Particularly notorious example in this regard was
Slobodni tjednik[Free Weekly], a tabloid which not only published inflammatory articles
about Serbs but also lists of the “disloyal”prominent Serbs in various Croatian towns. 315
439. It is notable that the hate speech against Serbs camepersonally from the highest Croatian
officials, which provided it with an added force. The racism against the Serbs (and the
Jews) is evident in the above-mentioned statement by President Tuđman (“Thank God, my
316
wife is neither a Serb nor a Jew”). Another example are statem ents of Mr. Stjepan Mesć i,
then a HDZ leader, who went on to become te hPresident of the SFRY Presidency, and now
the President of Croatia, saying that “the Serbs from Krajina plow the soil in Croatia, but
pray to God that it rains in Serbia”, and th at “the Serbs will carry from Croatia as much
317
land, as they brought on their ‘opanci’ [tra ditional Serbian shoes]”
440. The hate speech towards the Serbs in Croati a could also be heard in the Croatian
parliament at the time. For example, Mr. Juri ć, a member of the Parliament, in his
speech stated the following:
“But I am asking these same Serb s whether it will dawn on them
when they - and I am just wondeirng - and I’m notmaking a statement
[sic!] - whether they would come to their senses if ten civilians were
312Memorial, para. 2.53.
313Memorial, para. 2.53 (“official figures gave the number as between 600,000 and 700,000”).
314See supra footnote 295.
315For more, see B. Rašeta, “ Slobodni tjednik i Srbi u Hrvatskoj”, Ljetopis Srpskog kulturnog drustva Prosvjeta
3168, p. 140 et seq.
See L. Silber & A. Little, The Death of Yugoslavia, BBC Books, London, 1995, p.86 (Annex 1 to the
317liminary Objections); also E. Zuroff, Operation Last Chance, New York, 2009, p. 134 (Annex 9).
See S. Letica, ‘Tko je doista Stjepan Mesi ć’ (Who is really Stjepan Mesi ć), Vijenac, no. 385, Matica
Hrvatska, Zagreb, 4 December 2008, available at http://www.matica.hr/Vijenac/vijenac385.nsf.
150 executed for one killed policeman orif a hundred civilians were killed
for one [National] Guard officer! This is something that my Christian,
Catholic faith would not let me, because Father Stanko Bogeljic has
taught me that there is one commandment in those ten
commandments: “thou shall not kill”,and it does not allow me to say
that this is right, but it would be right for me if ten Serb intellectuals
would get the sack in Zagreb, Ri jeka, Split or Osijek for every
policeman killed. For,intellectuals cannot go tothe woods. They are
not like those ignorantBanija peasants who could go to bed without
washing their feet for a month! Intellectuals must be sacked, because
Chetnik ringleaders livein the big cities and we must prevent it. [...]
Our almighty God has created at the same timeboth good people and
a lot of vermin. One of such vermin is the moth which, when let into
the closet, in fact when it comes into it, it eats at the shirt, then it turns
to the pullover; it eatsand eats until it has eaten everything away. The
318
same is true of those who came to us as our guest-workers.”
441. Another form of the hate speech against Serb s manifested itself in the rehabilitation of
the Independent State of Croatia. This was vi sible already at the first HDZ congress in
the speech by President Tu đman himself, when he descri bed the Independent State of
319
Croatia as an expression of the historical aspirations of the Croatian people. Later on,
Mr. Mesić said the following:
“You see, in the World War II Croats won twice and we have no
reason to apologize to anyone. What they are asking of Croats is to
318The speech of Mr. Marjan Jurić at the session of the Croatian parliament held on 1–3 August 1991, reprinted
in J. Bošković, NDH drugi put: Lux Croatiae (1999), p. 63. The original text reads as follows:
“Ali, pitam ja te iste Srbe, da li bi se oni opametili kad bi – ali ovo pitam – i da li bi – ne konstatiram –
da li bi se oni opametili kada bi za ubijenog redarstvenika bilo streljano 10 civila, za ubičasnika
garde da se strijelja 100 civila! Meni to moja krš ćanska, katolička vjera ne dozvoljava, jer me to fra
Stanko Bogeljić naučio da ima zapovijed u onih deset – ‘ne ubij‘ i ona mi ne dozvoljava da kažem da je
to ispravno, ali za mene bi bilo ispravno da za svak og ubijenog redarstvenika deset Srba intelektualaca
dobije otkaz u Zagrebu, Rijeci, Splitu ili Osijeku. Jer, intelektualci ne mogu oti ći u šumu, oni nisu kao
oni neupućeni seljaci iz Banije koji mogu mjesec dana ne prati noge pa oti ći u krevet! Intelektualci
moraju dobiti dokaze, jer legla četnika nalaze se u velikim gradovima i mi to moramo sprije čiti... Dragi
Bog je u svojoj dobroti stvorio sa ljudima i dosta gamadi. Jedna od gamadi je i moljac koji, kad ga
pustite u ormar, zapravo kad sam dođe, onda nagrize košulju, pa grize poslije vestu, grize dalje i grize,
grize dok ne izgrize sve. Takvi su i oni koji su došli k nama kao gastarbajteri.”
See also, Public Statements which Di rectly Provoked Perpetrators to Commit Genocide against the Serbs in
Croatia (Annex 51).
319See supra para. 431.
151 kneel down at Jasenovac, to kneel down here... We have no reason
to be down on our knees in front of anybody! We have won twice
and everybody else just once. We won on 10 April [the date in
1941 when the Independent State of Croatia was created] when the
Axis Powers recognized the Croatian State and we won again
because, after the war, we were on the winning side sitting at the
320
table with the victorious powers.”
442. The rehabilitation of the Independent State of Croatia was not merely a reinterpretation
of history – it also legitimized the Usta she movement and the genocide perpetrated
321
against the Serbs, Jews and Roma in Croatia in 1941-1945. For the Serbs, this was a
terrifying sign. While one cannot deny that the fears held by the Serbs in Croatia were
further spurred by the propaganda from the Serbian media controlled by Mr. Miloševi ć,
it is clear from the above that their fears and apprehensions were not fuelled solely from
Belgrade. The attitudes of the highest Croatian officials, the inflammable articles about
Serbs in the Croatian 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.
4. The “Relativisation” of Borders between Republics
443. The Memorial devotes much attention to the debate about the internal borders between
the Yugoslav republics that grew stronger as it was becoming cl ear that certain
republics intended to leave the SFRY. 322This debate and its outcome are clearly
irrelevant for the present dispute which con cerns allegations of genocide. What should
be noted, however, is that th e challenge to the internal borders of the SFRY republics
was a legitimate political claim, as was the effort to preserve these borders as their
external borders by the republ ics wishing to leave the SFR Y. Indeed, as a matter of
320
See http://www.index.hr/vijesti/clanak.aspx?id=334481. The original statement reads as follows:
“U Drugom svjetskom ratu, vidite, Hrvati su dva puta pobijedili i mi nemamo razloga se nikom
ispričavati. Ovo što skroz traže od Hrvata - ajde iite kleknuti u Jasenovac, kleknite ovdje... Mi
nemamo pred kim šta klečati! Mi smo dva puta pobijedili, a svi drugi samo jednom. Mi smo pobijedili
10. travnja kad su nam Sile osovine priznale Hrvatsku državu i pobijedili smo jer smo se našli poslije
rata, opet s pobjednicima, za pobjedničkim stolom.”
Mr. Mesić has in the meantime apologized for this statement, see
http://www.predsjednik.hr/default.asp?mode=1&gl=200612100000002&jezik=1…
321See Annexes, Section II, The 1990’s Croatian Historical Revisionism and the Revival of the Ustashe Principles.
322See Memorial, para. 2.72. et seq.
152 international law, it was only on 11 January 1992 that the Badinter Commission held in
its Opinion No. 3 that “[e]xcept where otherwise agreed, the former boundaries become
323
frontiers protected by international law.”
444. The Applicant tries to link the subject-matte r of the present dispute with the border
issue by claiming that attempts at changing in ternal borders were motivated by the idea
that different ethnicities ca nnot live together, which in turn implied that non-Serb
324
populations should leave voluntarily, or be forced out, or be destroyed. This,
however, has not been substantiated by any evidence provided by the Applicant.
445. Thus, the Applicant fails to provide ev idence for its claim that “[p]ro-Miloševi ć
politicians in Serbia began to propos e the revision of borders on grounds of
ethnicity.”325 By implication, as it is mentioned in the same paragraph followed by a
quote, this seems to apply to Mr. Vojislav Šešelj, the leader of the Serbian Radical
Party, and his ideas about the “Greater Serbia” and the clai m that the border should be
along the line Karlobag-Ogulin-Karlovac-Vi rovitica. However, this is misleading
because the Applicant fails to mention that , at the time, Mr. Še šelj was not “a pro-
Milošević politician”, but in opposition to the Serbian government and President
Milošević. For example, in August 1991 Mr. Šeše lj stated in an interview with Spiegel
that if he ever came to power he would “p robably arrest Milose vic.” Previously, his
326
party was refused registration in 1990. He would become Milošević’s ally only later.
446. More importantly, the Applicant fails to provid e any evidence for its claim that Šešelj’s
statement was supported by President Miloševi ć, as the reference to the book “The
Death of Yugoslavia” given by the Applicant does not support this claim. 327 In contrast
to that, when on 1 April 1991 the SAO (Ser bian Autonomous Region) of Krajina
adopted a decision to join the Republic of Serbia, 328 the following day, 2 April 1991, the
National Assembly of the Re public of Serbia adopted th e Declaration on the Peaceful
329
Settlement of the Yugoslav Crisis, which basically rejected this idea.
32331 I.L.M. 1488 (1992) at p. 1500.
324Memorial, para. 2.78.
325Memorial, para. 2.76.
326See R. Hislope, ‘Intra-ethnic conflict in Croatia an d Serbia: Flanking and the Consequences for Democracy’,
327t European Quarterly, Vol. 30, no. 4 (1997), p. 483.
See Memorial, para. 2.76. and note 103, referring to L. Silber / A. Little, The Death of Yugoslavia (1996), at
328161, which however deal with Serbia’s consent to Slovenia’s departure from the SFRY in June 1991.
See ICTY, Milošević, IT-02-54-T, Order concerning chronology of events in the Croatia, number 30.
329Ibid,.
153447. Also in relation to the borders issue, the Me morial is silent about the fact that Dr.
Tuđman, President of Croatia from 1990 to 1999, was one of the most enthusiastic
proponents of a change of borders along ethnic lines, as were other prominent members
of his party. Already at the first congress of HDZ in 1990, he stated that the party’s goal
330
was Croatia in its historical and natural borders.
448. At a public rally in Zagreb in 1990, Šime Đodan, one of the HDZ leaders, and
subsequently Croatia’s minister of defens e in 1991, said that everyone knew where the
“boundaries of the ancient Croatian state” we re and told “Chetniks” that the Croatian
boundary (with Bosnia and Herzegovina) would not “forever” be on the River Una, but
“less than five years [would] pass”, a nd a Croatian flag w ould fly atop Mount
331
Romanija, in eastern Bosnia.
449. Finally, when President Tu đman and his generals planne d the genocidal operation
Storm at Brioni, Croatia, on 31 July 1995, he unequivocally stated that the success of
332
that operation would liberate forces “to tailor the Croatian borders in Bosnia”.
5. The Discriminatory Policies of the HDZ Government
450. The HDZ won Croatia’s elections held in spring 1990 and formed government, while
Dr. Tuđman became President of Croatia.
451. In January 1990 the League of Communists of Yugoslavia was torn along ethnic lines at
th
its 14 Congress, and effectively disappeared as a cohesive force of the federation,
which made clear that the very survival of th e SFRY might be at st ake. This, in itself,
was an additional reason for the insecurity felt by Serbs in Croatia. They felt their
position was jeopardized as the existence of the SFRY was put into question.
452. As already discussed, before the 1990 Croatian elections the HDZ had already
contributed to creating an atmosphere in wh ich the Serbs felt insecure and vulnerable.
Once it came to power, the threatening rhetoric of the HDZ was turned into government
actions with the introduction of discriminatory policies that were clearly aimed at Serbs.
330O. Žunec, Goli život, Zagreb, 2007, p. 103.
331N. Barić, TheSerb Rebellion in Croatia1990–1995 (Srpska pobuna u Hrvatskoj 1990–1),agreb, 2005, p. 60.
332See Brioni Minutes, p. 21, (Annex 52).
154 As will be seen below, they were fired en masse from the state administration and
public services. At the same time, the rights they held as a community were also taken
away or reduced. This was accompanied by acts aimed at rehabilitation of the
Independent State of Croatia. Together, thes e events cemented the insecurity of the
Serbs in Croatia and made them feel threatened as a community. As will be seen below,
this threat was real and tangible despite the fa ct that these events were also manipulated
by the propaganda of the state-controlled media in Serbia.
(a) Mass Dismissal of Serbs
453. Once they came into office in 1990, the new HDZ government and the President
Tuđman started to implement policies that were designed to reverse the ethnic structure
in the state administration and public servi ces for the benefit of ethnic Croats. They
claimed that the Serbs were over-repres ented and conducted a campaign for their
dismissal from their positions in the state ad ministration and the police, health services,
public education and the media. One Croatian author describes the situation as follows:
“Immediately after the election in 1990, Tudjan vowed to redress the
‘reversed discrimination’ or overrepresentation of Serbs in the organs of
power, police and the mass media by sayi ng: ‘We want to achieve that a
Croatian man has the same rights in Croatia like everybody else’.
...
In such a situation it was as early as 1990 that ethnically motivated job
dismissals began, especially from the government administration and the
security sensitive structures which were under the Croatian authorities
(police), but also from public servic es such as health, education and the
media. Vacancies in the police service were filled in by Croats. Those
Serbs who stayed on as workers and employees were asked to take an
oath of loyalty to the state of Croa tia, if they wanted to keep their
jobs.”333
333
O. Žunec, Goli život, Zagreb, 2007, p. 572. The Croatian original reads as follows:
155454. According to another author,
“Although the new government did not conduct a referendum proposing
independence until May 1991, its media campaign exulted in ‘a Croatia
for Croatians only.’ Such slogans encouraged the excesses of local
supporters and returning émigrés. They forced Serbs not only out of local
police forces as authorized, but fr om administrative and enterprise
positions as well. In the areas where the Serbs were most concentrated,
along the old Habsburg Military Bord er, such wholesale dismissals
seemed to confirm the worst local fears. At the same time, local Croats
also sacked or seized Serbian-owne d vacation houses along the Adriatic
coast.” 334
455. Therefore, already in 1990, the Serbs in Croatia were not only exposed to an atmosphere
in which the Independent State of Croatia and the Ustashe Movement were rehabilitated
and occasionally even glorified. They were also the target of very tangible
discrimination threatening their and their families’ everyday existence, as many of them
were dismissed simply because they were members of the Serbian national group.
(b) Constitutional amendments and the new Constitution
456. Soon after coming to power in spring of 1990, President Tu đman and his HDZ
government embarked on constitutional changes, which included the provisions that
reduced the rights and affected the position of Serbs in Croatia.
i) The constitutional amendments of 25 July 1990
“Tudjman se odmah nakon izbora 1990. godine zarekao da ce poraditi na ispravljanju
‘obratne diskriminacije’ odnosno nadzastupljenosti Srba u organima vlasti, policije i
masovnim medijima: ‘Želimo posti ći to da hrvatski čovjek u Hrvatskoj ima ista prava
kao i svatko drugi’
(...)
U takvoj su situaciji ve ć 1990. godine zapo čela otpuštanja po nacionalnoj osnovi, osobito iz državne
administracije i sigurnosno osjetljivijih struktura koje su bile u nadležnosti hrvatskih vlasti (policija), a
onda i iz državnih službi u zdravstvu, obrazovanju i medijima. Popuna policije novim ljudima vršila se
Hrvatima. Od zadržanih srpskih radnika i namještenika tražilo se polaganje prisege lojalnosti državi
Hrvatskoj, ako žele zadržati posao.” (references omitted)
334J. Lampe.Yugoslavia as History: Twice There was a CountCambridge University Press, 2000 2ed.), p. 360.
156457. Amendments LXIV to LXXV to the Constituti on of the Socialist Republic of Croatia
335
were adopted on 25 July 1990. Particularly controversial was Amendment LXVI
which introduced the new flag and the coat of arms of Croatia th at were dominated by
the red and white checkerboard (“šahovnica”). While it is not disputed that “šahovnica”
was historically one of Croatia’s symbols, the newly introduced designs of the flag and
the coat of arms were similar to the flag and the coat of arms of the Independent State of
336
Croatia. The introduction of “šahovnica” met with the fierce reaction from Serbs in
Croatia. Together with the rehabilitation of the Independent State of Croatia, this change
was perceived as a signal of outright hostility towards Serbs.
ii) The new Constitution of Croatia of 22 December 1990
337
458. On 22 December 1990, Croatia adopted its new constitution. It not only confirmed
338
the previous constitutional changes concerning Croatia’s state symbols but further
reduced the rights of the Serb community in Croatia.
335See Narodne novine [Official Gazette], no. 31/1990. By Amendment LXIV, Croatia became “The Republic
of Croatia.”
336The flag of the Independent State of Croatia 1941–1945:
The flag of the Republic of Croatia introduced on 25 July 1990:
The flag of Croatia valid until 25 July 1990:
The current flag of Croatia adopted on 21 December 1990:
337rce: http://hr.wikipedia.org/wiki/Zastava_Republike_Hrvatske
338Narodne novine [Official Gazette], no. 56/1990.
See Article 11.
157459. Firstly, the Serbs in Croatia lost the constitutional guarantee that they, as a national
group, were a constituent element of the Croa tian state. The previous 1974 Constitution
of Croatia defined Croatia as follows:
“The Socialist Republic of Croatia is the national state of the Croatian
people, the state of the Serbian people in Croati a and the state of other
peoples and nationalities living in it.” 339
460. The new 1990 Constitution defined Croatia as
“... the national state of the Croatian people and the state of members of
other peoples and minorities, who ar e its citizens: Serbs, Muslims,
Slovenes, Czechs, Slovaks, Italia ns, Jews and others, which are
guaranteed equality with the citize ns of Croatian nationality and the
implementation of the national rights in accordance with the democratic
340
norms of the OUN and the countries of the free world.”
461. This way, the new Croatian constitution removed the constitutional guarantee of the
position of the Serbs in Croatia as the const ituent element of the Croatian state. As a
result they were now only considered to be a national minority. Even more importantly,
in the light of their treatment during World Wa r II, this also meant that Serbs had lost
the constitutional guarantee of their collective rights in Croatia. Previously, Croatia was
defined as also being “the state of the Serb ian people in Croatia”, now it was “the state
of members of other peoples and minorities: Se rbs, Muslims, Slovenes, Czechs,
Slovaks, Italians, Jews and others...” (emphasis added).
339Article 1, Constitution of the Socialist Republic of Croatia, Ustav Socijalističke Federativne Republike
Jugoslavije. Ustav Socijalističke Republike Hrvatske, Narodne novine, Zagreb, 1974, p. 226. The original text
reads as follows:
“Socijalistička Republika Hrvatska je država utemeljena na suverenosti naroda i na vlasti i samoupravljanju
radničke klase i svih radnih ljudi te socijalisti čka samoupravna demokratska zajednica radnih ljudi i gra đana i
ravnopravnih naroda i narodnosti.
Socijalistička Republika Hrvatska je nacionalna država hrva tskog naroda, država srpskog naroda u Hrvatskoj i
država narodnosti koje u njoj žive.
340ijalistička Republika Hrvatska je u sastavu Socijalističke Federativne Republike Jugoslavije.”
Preamble, Constitution of the Republic of Croatia, 1990, Narodne novine [Official Gazette], no. 56/1990. The
original text reads as follows:
”Polazeći od iznesenih povijesnih činjenica, te od op će prihvaćenih načela u suvremenu svijetu i neotu đivosti i
nedjeljivosti, neprenosivosti i nepotrošivosti prava na samoodredenje i državnu suverenost hrvatskoga naroda,
uključujući i neokrnjeno pravo na odcjepljenje i na udruživanje, kao osnovnih preduvjeta za mir i stabilnost
međunarodnog poretka, Republika Hrvatska ustanovljuje se kao nacionalna država hrvatskoga naroda i država
pripadnika inih naroda i manjina, koji su njezini državljani: Srba, Muslimana, Slovenaca, Čeha, Slovaka,
Talijana, Madžara, Židova i drugih, kojima se jam či ravnopravnost s gra đanima hrvatske narodnosti i
ostvarivanje nacionalnih prava u skladu s demokratskim normama OUN i zemalja slobodnoga svijeta.”
158462. These changes in fact stripped the Serbs in Croatia of their long-standing acquired rights
that they enjoyed as a group, most recently by the explicit de finition of Croatia as “the
state of the Croatian people and the state of the Serbian people in Croatia...” in the 1974
Constitution of Croatia. It should however be mentioned that as early as 1867 the
Croatian Parliament determined that it “r ecognized the Serbian people dwelling in
Croatia as a people that is the same and equal with the Croatian people.” 341Similarly,
the Declaration of the basic rights of the peoples and citizens of the Democratic Croatia
adopted on 9 May 1944 proclaimed that the Croatian people and the Serbian people in
Croatia are equal, while national minorities shall have all rights. 342This clearly
demonstrated that, from at least 1867 until the constitutional changes in 1990, the Serbs
in Croatia were never regarded as a nati onal minority but as a people equal with the
Croatian people and as a constituent element of the Croatian State. The only exception
was the period 1941-1945, during which time the Independent State of Croatia was in
existence, when Serbs were the victims of genocide.
463. Furthermore, the new 1990 Constitution of Croatia took away the explicit constitutional
guarantee of the use of the Serbian language. The previous 1974 Constitution of Croatia
provided that the languages for public use in Croatia were “Croatian literary language –
the standard form of the people’s language of the Croats and the Serbs in Croatia, which
is called Croatian or Serbian.” 343 The new Constitution simply provided that the
Croatian language and the Latin script were in official use in Croatia, while the use of
other languages and scripts could be introduced in local communities under the
344
conditions stipulated by law.
464. By abolishing the constitutional guarantee on the use of the Serbian language and the
Cyrillic script, and by stipul ating that their use would be regulated by law, the new
Constitution drastically reduced the rights of Serbs in Croatia, which were no longer
constitutionally entrenched but at the me rcy of the Croatian parliament. Significantly,
the nationalist HDZ controlled the majority in the Croatian parliament at the time.
341
342Translation of the Croatian text quoted in O. Žunec,Goli život, Zagreb, 2007, p. 559, note 1091.
343See ibid., p. 559.
Article 138, paragraph 1, ofthe 1974 Constitution of Croatia, Ustav Socijalisti čke Federativne Republike
Jugoslavije. Ustav Socijalističke Republike Hrvatske, Narodne novine, Zagreb, 1974, p. 284. The original text
reads as follows: “U Socijalističkoj Republici Hrvatskoj u javnoj je upotrebi hrvatski književni jezik – standardni
oblik narodnog jezika Hrvata i Srba u Hrvatskoj, koji se naziva hrvatski ili srpski.”
344Article 12 of the 1990 Constitution of Croatia.
159(c) Other examples of discrimination and persecution against the Serbs
465. In addition to massive lay offs of Serbs and the constitutional changes that reduced or
abolished their acquired rights, Serbs were al so discriminated against or threatened in
other ways. As the crisis progressed, the Serbs were increasingly harassed and
intimidated, while their property was dama ged and their houses were marked as
belonging to Serbs. 345 This went hand in hand with a campaign of hate speech that had
already begun during the rise of the HDZ. 346 Pressure against Serbs was such that
thousands of them changed their names in orde r to conceal their Serb ian identity so as
to avoid discrimination and persecution. 347
466. The discrimination and persecution of the Serbs increased at the beginning of the armed
conflict in 1991. There were ethnically motiv ated killing campaigns against Serbs in
some Croatian cities, which were not c onnected with military operations, while
348
thousands of Serb houses were blown up during 1991 and 1992. As will be discussed
below, the persecution of Serbs would eventu ally result in genocide in 1995 during the
349
operation Storm.
6. Croatia’s Preparations for the War
467. In accordance with its generally biased appr oach, the Memorial also fails to mention
that the HDZ government in Croatia started to prepare for armed conflict already in
1990, after it took office. In particular, this was done
- by enlarging the Ministry of the Interior (“MUP”) forces and creating
special force units, and subseque ntly through the formation of
parallel military structures and forces;
- by cleansing the police forces of the Serbs;
- by illegally arming Croatian forces.
345 See O. Žunec, Goli život, Zagreb, 2007, pp. 572-573. S. Woodward, Balkan Tragedy (1995), p. 107;
nd
346Lampe, Yugoslavia as History: Twice There was a Country (2 ed., 2000), p. 354.
347See supra paras. 434–441.
See O. Žunec, Goli život, Zagreb, 2007, p. 575, who mentions the number of 25.786 persons that changed
their names in Croatia during the period 1990-1992, but states that it still remains to be determined how many of
them were the Serbs concealing their identity and how many did so for other reasons.
348See more in Annex 37.
349See infra Chapters XIII and XIV.
160468. This is how the CIA study Balkan Battlegrounds describes the expanding of the police
force in Croatia in 1990:
“Impervious to ethnic Serb reac tions, when the Cr oatian Republic
Government first moved to expand th e MUP’s regular police force, it
dismissed many of the Serb policem en while increasing the number of
police stations throughou t the country as a demonstration of Croatian
sovereignty and to enforce Croati an rule, particularly in Serb
populated areas. By January 1991 the original force of 10,000 or so
police had been expanded toclose to 20,000 personnel.” 350
469. This shows that the massive lay offs of Serb s from the state administration, particularly
the police, were not motivated by a desire to create a more balanced multi-ethnic force,
but rather took place with the intention of cr eating an ethnically Croat military force.
The degree of expansion of the number of policemen is also astounding, as the police
force doubled in little more than 6 months.
470. The fact that the HDZ government was set to create a combat military force is also
evident in the fact that the special forces of the MUP were greatly expanded:
“The center-piece of the MUP’s efforts to develop a military force,
however, was the expansion of its single antiterrorist unit into a
number of ‘special police’ battalions organized along military lines.
By January 1991, the program had produced 3,000 regular soldiers
formed into a dozen battalion-sized units.” 351
471. In addition to the regular police force, theMUP also had about 10,000 reserve personnel.
The police reserve and the special police ofthe MUP were in May 1991 transformed into
the Croatian National Guard Corps (“ZNG” – “Zbor narodne garde”), which was
352
organized as a military force and subordinate d to the Ministry ofDefense of Croatia.
350Central Intelligence Agency (CIA),Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990–1995
(2002), Vol. I, p. 86 (Peace Palace Library).
351Ibid.
352Ibid.
161472. In parallel with the formation and preparato in of its armed forces, the Croatian government
undertook to arm them. This was done illegally and in a clandestine manner. The Memorial
mentions that the JNA detected the illegal amring of Croatia, but seeks to portray the JNA’s
353
actions as finding a pretext for the proca ation of a state of emergency in Croatia. What
the Memorial omits to mention is that the wp eans were indeed illegally imported and that the
Croatian Minister of DefenesŠpegelj was behind thislie lgal importation of weapons.354
4. The Organizing of Serbs in Croatia (1989-1991)
A. Introduction
473. This section will describe developments of the Serb movement in Croatia and its activity
during the escalation of the crisis in the SFRY in 1989- 1991. As elsewh ere in this
discussion of the background facts to the present case, the Respondentdoes not purport to
provide a comprehensive analysisbut will rather present a summary of the relevant events
in order to assist the Court in gaining a more balanced picture of the events. Within this
framework and to the extent that it is necessary and relevant for the present proceedings,
inaccurate or misleadnig claims made by the Ap plicant will be ideniied and refuted.
474. This section will discuss the following:
- the emergence of the Serb movement in Croatia;
- the creation of the Serb regions in Croatia and their unification into
the Republic of Srpska Krajina; and
- the reactions of the Croatian government.
B. Political Organizing of the Serbs in Croatia
475. The democratization of the SFRY in the seco nd half of the 1980s went hand in hand
with the revival of nationalism that spread all over the country and the growth of inter-
ethnic tensions. The first manifestations of national sentiments of the Serbs in Croatia
353Memorial, para. 2.97.
354M. Špegelj, Soldier’s Memoirs (Sjećanja vojnika), Zagreb, 2001, p.288, table IV: Weapons purchased in the
organization of the Ministry of Defence of the Republic of Croatia between 5 October 1990 and 15 January 1991
(Annex 36).
162 355
took place in 1989, which led to their political orga nizing on an ethnic basis at the
beginning of 1990, notably with the foundi ng of the Serbian Democratic Party
(hereinafter “SDS” – “Srpska demokratska stranka”) on 17 February 1990.
476. However, during the Croatian elections held in April-May 1990, the majority of Serbs
in Croatia voted for the Social-Democratic Party of Croatia, the former League of
Communists of Croatia, which was perceived as being mu lti-ethnic, anti-Fascist, and
pro-Yugoslav, and, as such, against both Serb ian and Croatian nationalism. Following
the elections, this political party had counted 24 Serbs among its deputies in the
Croatian Parliament, in comparison with 5 deputies of the SDS. At the local elections
held at the same time, the Social-Democratic Party won in most of the municipalities
with a substantial Serb population, while th e Serbian Democratic Party formed local
356
government in three municipalities (Knin, Gračac and Donji Lapac).
477. The elections brought the nationalist HDZ govern ment to power in Croatia. As already
discussed, Serbs felt threatened by the HDZ rhetoric, and these fears were reinforced by
the discriminatory governmental measures introduced against Serbs and the reduction of
their constitutional rights. 357This contributed to a further aggravation of the inter-ethnic
conflict in Croatia in 1990 and also led to the strengthening of the Serbian Democratic
Party, since the Social-Democratic Party was perceived as weak and indecisive.
478. As the new Croatian government started to reassert Croatian sovereignty in relation to
the SFRY, and as it was preparing to adopt constitutional amendments that would
approve the design of the flag and coat of ar ms in a way reminiscent of the symbols of
358
the Independent State of Croatia, the Serbian Democratic Party started to seek
autonomy for the Serbs in Croatia. I ndeed, its leader, Mr. Jovan Raškovi ć, and the
359
Croatian President Tuđman discussed this prospect in July 1990 but without result.
479. As tensions mounted and the constitutional amendments were imminent, the three
municipalities controlled by SD S decided to form the Union of municipalities of the
355
356See S. Radulović, Sudbina Krajine, Belgrade,1996, pp. 11–13.
See O. Žunec, Goli život, Zagreb, 2007, p. 262–263.
357See supra paras. 456–464.
358See supra footnote. 336.
359The transcript of a meeting between the two was published in the Croatian press in July 1990 and is
reproduced in S. Radulović, Sudbina Krajine (1996), p. 111 et seq.
163 Northern Dalmatia and Lika which was proclaimed on 1 July 1990. Other municipalities
with a Serb majority from the region of Northern Dalmatia and Lika followed suit and
360
joined the Union. The Memorial presents this as an incitement to “rebellion”.
However, this can hardly be qualified as a “rebellion” or an incitement to it, since the
establishment of the Union of municipalities was completely lawful. Moreover, this was
largely a symbolic expression of the Serb pr otest because unions of municipalities were
voluntary associations without much power.
480. As the amendments to the Croatian constitution were adopted by the HDZ dominated
Croatian Parliament on 25 July 1990 – without in any way addressing the Serb anxieties
and fears – the Serbs held a mass protest rall y in the village of Srb. On this occasion,
their political leaders adopted the Declaration on the sovereignty and autonomy of the
Serbs in Croatia, which was supported at the rally. 361The Declaration provided that the
Serbian people “within the borders of the Socialist Republic of Croatia” were a
sovereign people that, as such, had the right to take part in the decision on whether the
SFRY would constitute a fede ration or a confederation. 362 They had the right to
autonomy the content of which depended on how the SFRY was to be constituted: if the
SFRY were to remain a federation, the Serb s in Croatia had the right to use their
language, script, to have their educational and cultural institutions and media; if the
SFRY were to become a confederation, the Serbs in Croatia would have “political-
363 364
territorial autonomy.” The Declaration also rejected the constitutional amendments.
481. The Declaration established the “Serbian parliament” (“Srpski sabor”) as a representative
body of the Serb people in Croatia, whose exetc iue organ was the Serbian National Council.
482. The Memorial claims that the formation of the Serbian National Council turned “the
Union of Serbian districts... into the ‘govern ment’ of a break away state” and that the
Declaration declared “independence” of the Serb nation in Croatia. 365 This is inaccurate.
As has just been discussed, the Declaration neither declared independence nor was it an
act of state creation, but set forth political aspirations of the Serbs in Croatia.
360
361Memorial, para. 2.88.
The text of the Declaration on the sovereignty and autonomy of the Serbs in Croatia (“Declaration”) is
362rinted in S. Radulović, Sudbina Krajine (1996), pp. 123–124.
363Declaration, para. 1.
Declaration, para. 2.
364Declaration, para. 5.
365Memorial, para. 2.89.
164C. The Escalation of the Crisis in August – September 1990
483. August 1990 brought about a furt her escalation of the crisis. The Me morial describes
the relevant events as a series of incident s by the rebel Se rbs who seized the weapons,
ignited panic among the population, resisted the Croatian government (with the
assistance of the JNA) and ultimately set up barricades in the areas of Knin, Obrovac
366
and Benkovac. This is an inaccurate description of events.
484. In fact, according to Croatian accounts, the Croatian Ministry ofthe Interior on 16 August
1990 “decided to remove the weapons of the police reserve from the police stations on the
367
territory of possiblerebellion.” On the morning of 17 August 1990, a hidden group of
Croat policemen tried to enter Knin for that purpose but fa iled. However, the Croatian
Ministry of the Interior (MUP) succeeded in removing the weapons from Benkovac and
part of the Lika regi on, but not in Obrovac. 368 All this sparked demo nstrations in areas
with Serb populations, with the local policem en joining in. In the anticipation of a new
attack by the Croatian MUP, improvised barricades were set up on the roads. On the same
day, a heavily armed column of MUP forces set off from the capital, Zagreb, to enter the
Serb municipalities but were stopped in the Lika region. At the same time, the SFRY air
force intercepted 3 MUP helicopters a nd made them return to Zagreb. 369
485. In September 1990, the MUP again tried to re move the weapons of the reserve police
from the police stations in the Serb municipalities. This attempt was only partly
successful, but at the same time it sparke d new demonstrations by Serbs, where
demonstrators seized some of the weapons. 370
D. The Serb Autonomous Regions on the Territory of Croatia
486. In December 1990, as the Serbs in Knin lived under a permanent threat of the Croatian
371
MUP attack, and as the new Constitution of Croatia was about to be adopted, the
Union of the Municipalities of the Northern Dalmatia and Lika and the Serbian National
366See Memorial, paras. 2.90–2.91.
367
368N. Barić, Srpska pobuna u Hrvatskoj 1990–1995 (2005), p. 78 (emphasis added).
369Ibid., pp. 78–79.
370Ibid., pp. 79–80.
Ibid., p. 83.
371Ibid.
165 Council decided to transform the Union into the Serbian Autonomous Region of Krajina
(“SAO Krajina”) on 21 December 1990. 372The statute 373 of the new region envisaged
this regional autonomy as part of Croatia and as part of the Croatian legal system. 374 An
early version of the statute was sent to Croatian President Tu đman and the Speaker of
Croatian Parliament, as well as to the federal authorities. 375This testifies that, at the
time, the Serbs in Croatia continued to percei ve themselves and their autonomy as part
of the Republic of Croatia, in a federal Yugoslavia. In this regard, the observation in the
Memorial that the territory of SAO Kra jina corresponded with the “borders” of a
376
“Greater Serbia” proposed by Šešelj is immaterial, as the borders he imagined
roughly corresponded to the actual territorial allocation of ethnic Serbs at the time.
487. The SAO Krajina had an Assembly and an Executive Council. On 4 January 1991, the
SAO Krajina formed its own Secretariat of the Internal Affairs with its own police force
and state security affairs. The authority of the Croatian MUP on the territory of the SAO
377
Krajina was revoked.
488. By the end of 1990, the SAO Krajina compri sed the municipalities of Benkovac, Donji
378
Lapac, Dvor na Uni, Gračac, Knin, Obrovac, Titova Korenica and Vojnić. Additional
municipalities or parts thereof with the Serb majority in Dalmatia, Lika, Banija and
Kordun and Western Slavonia joined the SAO Krajina in 1991. On 13 August 1991, the
Serbian Autonomous Region of Western Slavonia was establis hed (“SAO Western
379
Slavonia”).
489. The municipalities with a Serb majority in Eastern Slavonia, Baranja and Western
Sirmium formed their own Serbia n National Council on 7 January 1991. 380On 26
February 1991, the Serbian National Council adopted a Declaration on Sovereign Self-
372ICTY, Milošević, IT-02-54-T, Order concerning a chronology of events in the Croatia part of the case,
number 20.
373The Memorial inaccurately refers to it as “constitution”, see Memorial, para. 2.94.
374See Article 1, the Statute of the Serbian Autonomous Region of Krajina, Basic Provisions, reprinted S.
375ulović, Sudbina Krajine (1996), p. 140 (Annex 13).
376See N. Barić, Srpska pobuna u Hrvatskoj 1990-1995(2005), p. 93.
Memorial, para. 2.95.
377ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 131.
378See M. Daki ć, Srpska krajina – Istorijski temelji i nastanak (1994), pp. 52–53; N. Bari ć, Srpska pobuna u
Hrvatskoj 1991-1995 (2005), p. 95.
379See ICTY, Milošević, IT-02-54-T, Order concerning a chronology of events in the Croatia part of the case,
380ber 47.
Ibid., number 23.
166 381
rule of the Serbian People of Sla vonia, Baranja and Western Sirmium. The
Declaration envisaged that the autonomous organs of the region were the assembly,
382
government and judiciary.
490. On 21 February 1991, the Croatian Parliament adopted a resolution in which it declared
its support for the disassocia tion (“razdruživanje”) of th e SFRY into its constituent
republics which were to become sovereign and independent States, that could link
383
themselves into a league of States (confederation). This was an openly declared
intention of the Croatian government to cr eate an independent Croatia outside the
SFRY. In response, on 28 February 1991, th e Executive Council of the SAO Krajina
adopted a resolution of disassociation (“ razdruživanje”) betw een Croatia and SAO
Krajina, in which it refused to accept the resolution of the Croatian Parliament and
declared the wish of the SAO Krajina to remain in the SFRY, while the Croatian people
could form their independent state on their ethnic territories. 384
491. The beginning of 1991 also brought about a fu rther aggravation in relations between
Croatia and the federal authorities, in partic ular the JNA, over the issue of the illegal
armament of the paramilitary formations and requests for their disarmament. First
armed clashes between the Croatian Govern ment forces and the SAO Krajina police
occurred in March 1991, with the JNA intervening and positioning itself as a buffer
between the conflicting parties. 385
492. On 1 April 1991, the Executive Council of the SAO Krajina decided to join the region
to the Republic of Serbia, 386but this was not accepted as the National Assembly of
Serbia on 2 April 1991 adopted a declaration on the peaceful resolution of the Yugoslav
381
Службени гласник Српске области Славонија, Барања и Западни Срем [Official Gazette of the Serbian
Region Slavonia, Baranja and Western Sirmium], no. 1/1991, available at http://www.hic.hr/ratni-
zlocini/sluzbeni%20glasnici/1991%20godina/Sg_91_SBZS_01.pdf (Annex 18)
382Ibid., para. 6.
383See Rezolucija o prihva ćanju postupka za razdruživanje SFRJ i o mogu ćem udruživanju u savez suverenih
republika [Resolution on the acceptan ce of the procedure for disassocia tion of the SFRY and on a possible
association into a league of sovereign republicsNarodne novine [Official Gazette], no. 8/1991, available at
www.nn.hr.
384Резолуција о раздруживању Р. Хрватске и САО Крајине [Resolution on disassociation between the
Republic of Croatia and the SAO Krajina], paras. 1-3Гласник Крајине [The Gazette of Krajina], no. 1/1991,
385ilable at http://www.hic.hr/ratni-zlocini/sluzbeni%20glasnici/1991%20godina/Sg_91… (Annex 14).
386See infra para. 501.
See ICTY, Milošević, IT-02-54-T, Order concerning a chronology of events in the Croatia part of the case,
number 30.
167 crisis.87 Nevertheless, on 12 May 1991, the SA O Krajina held a referendum on the
union with Serbia which was suppor ted by an overwhelming majority. 388 The Serbian
President Miloševi ć publicly opposed the referendum on the SAO Krajina’s joining
Serbia, and stated that the question instead should refer to the SAO Krajina’s remaining
in Yugoslavia. 389 However, the SAO Krajina leadership retained the question on joining
Serbia, although in a slightly modified version, adding a reference to “staying in
Yugoslavia”. 390
493. One week after the SAO Krajina refe rendum, on 19 May 1991, Croatia held a
referendum in which the electorate voted for independence from the SFRY, which was
391
followed by a proclamation of independence on 25 June 1991.
494. Simultaneously, on 29 May 1991, the Statute of the SAO Kr ajina was declared to be
the Constitutional Law, while the Execut ive Council became th e Government with
392
ministries, including a Ministry of Defense. The same day, the Assembly of the
SAO Krajina established “special purpose units” named “Milic ija Krajine”, which
were within the framework of the MUP Krajine but un der the authority of the Ministry
393
of Defense. Their establishment was in addition to the already existing police and
state security forces functi oning within the MUP Krajine. Subsequent ly, on 1 August
1991, the Government of the S AO Krajina proclaimed that the TO forces of Krajina
and the “special purpos e units” of the Ministry of the Internal Affairs were the armed
394
forces of the SAO Krajina. These armed forces were under the command of the
President of the Government of the SAO Kr ajina, who was also the commander of the
TO forces. 395
387
388Službeni glasnik Republike Srbije [Official Gazette of the Republic of Serbia], no. 20/1991.
389ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 134.
ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 133.
390The question on which the referendum was held was: “[a]re you in favour of the SAO Krajina joining the
Republic of Serbia and staying in Yugoslavia with Serbia, Montenegro and other who wish to preserve
Yugoslavia”, see ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 134.
391ICTY, Milošević, IT-02-54-T, Order concerning a chronology of events in the Croatia part of the case,
392ber 39, ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 134.
See Гласник Крајине [The Gazette of Krajina] , no. 4/1991, available at http://www.hic.hr/ratni-
zlocini/sluzbeni%20glasnici/1991%20godina/Sg_91_04.pdf (Annex 15).
393See Annex 16.
394See Одлука о примјени Закона о одбрани Републике Србије на територији Српске аутономне области
Крајине [Decision on the Implementation of the Law on Defence of the Republic of Serbia on the Territory of
the Serbian Autonomous Region of Krajina], Article 5, Гласник Крајине [The Gazette of Krajina], no. 8/1991,
395ilable at http://www.hic.hr/ratni-zlocini/sluzbeni%20glasnici/1991%20godina/Sg_91… (Annex 17).
See ibid., Article 6.
168495. On 23 July 1991, the Serbian National Counc il for Eastern Slavonia, Baranja and
Western Sirmium became the Government of the Serbian Region of Slavonia, Baranja
and Western Sirmium. 396As already mentioned, the SAO Western Slavonia was formed
on 13 August 1991. 397
496. Without entering into further discussion of events in late 1991 which will be dealt with
in the next section, it should be noted at this juncture that on 19 December the
398
Assembly of the SAO Krajina proclaimed the Republic of the Serbian Krajina (RSK).
The SAO Western Slavonia and the Serbian Region of Slavonia, Baranja and Western
399
Sirmium joined the RSK on 26 February 1992.
E. Conclusion
497. This section has chartered the development of the Serb movement in Croatia from its
beginning in 1989 to 1991. In its discussion of the same period, the Applicant takes the
position that the “conflict between Serbia and C oratia was inevitable” due to Serbia’s policy
and that an important element of that policy was the encouragement a nd logistical support of
the Serb rebellion in Croatia. However, the Applicant appare ntly fails to recognize that a
genuine political, and later armed, conflict ex isted in Croatia between the local Serb
community and the nationalist HDZ government. The nationalism of the government, its
rhetoric, its discriminatory policies, its turninga blind eye to the concerns of the Serbs – all
significantly contributed to the eu rption of the conflict and itsggravation. This is not to say
that the regime of Mr. Miloševć i in Serbia did not manipulatethe fears and anxieties of the
Serbs in Croatia, and did not misuse their tr oubles for its own purposes. But one must also
recognize that the ostena ttious and aggressive Croatian nta ionalism promoted and applied by
President Tuđman and the Croatian government made noeffort to establish better relations
with the Serbs or to alleviate their fears and an xieties. On the contrary, the Serb request for
autonomy was ignored and, when they started to organize themselves a nd the municipalities
in which they lived in as a majority,e thgovernment responded with armed force.
396
Службени гласник Српске области Славонија, Барања и Западни Срем [Official Gazette of the Serbian
Region Slavonia, Baranja and Western Sirmium], no. 1/1991, available at http://www.hic.hr/ratni-
zlocini/sluzbeni%20glasnici/1991%20godina/Sg_91_SBZS_01.pdf (Annex 18).
397ICTY, Milošević, IT-02-54-T, Order concerning a chronology of events in the Croatia part of the case,
number 47.
398ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 149.
399Ibid., para. 151.
400Memorial, paras. 2.85-2.86.
169498. The chronology of the establishment of Serb te rritorial autonomy in Croatia shows that
the steps taken by Serbs towards achieving gr eater autonomy took place as Croatia in
turn took steps to dissocia te itself from the SFRY. 401 Initially, the Serbs sought
preservation of their acquired constitutional rights and guarantees of their cultural
identity but as Croatia abolished these guara ntees and started to dissociate itself from
the SFRY, the Serbs sought and establis hed territorial au tonomy comprising
municipalities in which they were in th e majority. By May 1991, the SAO Krajina had
its Parliament, Government, a court system and a state administration. While it was not
recognized as an autonomy or federal entity under the SFRY constitutional order, it was
de facto an autonomous region existing on the territory of the Republic of Croatia.
5. The Armed Conflict in Croatia and Deployment of UNPROFOR
499. The following section will deal with the armed c onflict in Croatia, in particular with the
events of 1991-1992. Itspurpose is not to provide a comprehensive account of these events,
but to discuss matters that are either inaccurately presented or not presented at all in the
Memorial. First, it will deal wtih the role of the JNA during th e war in Croatia. Secondly, it
will demonstrate that the SFRY existed as subject of international law in 1991 and 1992.
Thirdly, it will deal with human rights situation of th e Serbs in Croatia during the war.
Finally, it will disuss events leading tothe deployment of UNPROFOR in 1992.
A. The Role of the JNA during the War
500. The first armed clashes between Croatian fo rces, on the one side, and the Territorial
Defense and MUP forces of the SAO Krajina, on the other, took place in the spring of
1991 in Pakrac, Plitvice and Borovo Selo, respectively. In all these cases, the JNA units
intervened as peacekeepers by positio ning themselves as a buffer between the
conflicting parties. The Memorial, however, claims that the JNA was assisting the “Serb
rebels” and “protecting the Serbian side”. 402
401Thus, the Declaration on sovereignty and autonomy of the Serbian people was adopted in parallel with the
amendments to the Constitution of Croatia on 25 Jul1990. The SAO Krajina wa s proclaimed in December
1990, as Croatia adopted its new constitution stripping the Serbs from their constitutional position. The decision
to dissociate the SAO Krajina from Croa tia was adopted in parallel with the declaration of Croatia that it will
dissociate itself from the SFRY in February 1991. The referendum on the joining of Serbia was held in parallel
with the referendum for independence of Croatia in May 1991. Finally, the Republic of the Serb Krajina will be
proclaimed at the time when Croatia received international recognition as a State, at the beginning of 1992.
402Memorial, para. 2.101.
170501. However, third-party sources state that the JNA indeed acted as a neutral peacekeeping
force in spring 1991, and that both sides were dissatisfied with its role:
“After these actions [in Pakrac, Plitvice and Borovo Selo], both Serbs and
Croatians realized that all-out war was likely, and emotions reached the
boiling point. Their fights and threats drew the JNA’s Croatian garrisons
into the role of peacekeepers, a role that did not fully satisfy the Croatian
Serbs – who wanted the JNA to defe nd them – or the Croatians – who
403
believed the JNA was explicitly or ta citly backing the rebellious Serbs.”
502. The JNA continued to act as a peacekeeper throughout the summer of 1991 – until the
Croatian side mounted an all out attack on the JNA barracks and facilities in Croatia on
14 September 1991. The situation during the summer was described as follows:
“During much of the summer fighting in Croatia,the JNA was stuck in the
middle, ordered to act as a buffer fo rce (as it had at Pakrac, Plitvice and
Borovo Selo) yet distrusted by the Croatians and criticized by the local
Serbs for not helping them more. Firmly devoted to its ideal of a Federal
Yugoslavia, the JNA by and large did try to act as a neutral peacekeeping
force during this period, but the fog ofwar and biases on all three sides led
404
to repeated misunderstandings among the contenders.”
503. The account of events presented in the Memori al creates the impression that there were
two sides to the conflict in Croatia – the Cr oatian side and the Serb ian side – and that
the federal authorities acted on the Serbian side as de facto Serbian organs under the
direct control of the Serbian leadership. The reality, however, was much more complex,
as is also evidenced by the above account of events in the spring and summer of 1991,
showing that the JNA played a peacekeeping role during the conflict. Of course, the
sympathies of the JNA and its officers could not be on the side of the Croatian
government which was openly hostile towa rds the federal army. A campaign of
harassment and attacks against the JNA members was ongoing in Croatia in the summer
403Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990-
1995 (2002), Vol. I, p. 89 (Peace Palace Library).
404Ibid., pp. 91–92.
171 of 1991. Still, as emphasized in the CIA’s analysis of events, the JNA “conscientiously
tried to remain an unbiased federal for ce in Croatia” while “most JNA commanders
appear to have rigorously followed orders to act solely as peacekeepers”. 405
504. However, Croatia mounted an all-out attack on the JNA barracks and facilities in
Croatia on 14 September 1991. According to th e then Croatian Minister of Defense
Luka Bebić, the day before, on 13 September 1991,
“The Croatian Ministry of Defense issued an order to all ZNG units
and to all Crisis Headquarters acco rding to which, on the basis of a
decree from the President of the Republic and the Supreme Command,
the implementation of appropriate measures was initiated. These
included turning off all municipal serv ices and the supply of fuel to
the Yugoslav Army, and the passive blocking of barracks, storage
depots, and all routes used for movements of the enemy; commanders
in the field were also to undertake appropriate actions if this became
necessary. That is the basic order th at was issued and forwarded on 13
September.” 406
505. Acting pursuant to this order, the Croatian forces surrounded and blockaded every JNA
barracks or facilities on the territory of Croatia and overran many of the isolated JNA
407
posts. They also seized a large number of weapons. It was only at this time that the
JNA started a general military action against the Croatian government forces.
506. During the Croatian blockade, a number of barracks surrendered or were overtaken
by the Croatian forces which, in some cases, committed massacres of the soldiers.
For example, on 21 September 1991 in the to wn of Karlovac, the Croatian forces
killed 13 JNA soldiers that surrendered their weapons and were promised free
passage out of the town. Only one perpet rator of this crime has been recently
408
convicted, after having been three times found not guilty. When the JNA
405Ibid., p. 92.
406Cited in ibid., p. 95.
407Ibid., p. 95.
408See, e.g., N. Bari ć, Srpska pobuna u Hrvatskoj 1990–1995 , p. 137, and the report of the Croatian non-
governmental organization, Centre for Peace, Non-Violence and Human Rights, available at http://www.centar-
za-mir.hr/index.php?page=article_sudjenja&trialId=28&article_id=48&lang=hr.
172 barracks in the town of Bjelovar surr endered to the Croatian forces on 29
September 1991, three commanding JNA offi cers were taken away from other
prisoners of war and killed. 409
507. In conclusion, the JNA was a peacekeeping force and not a fighting party in the conflict
in Croatia until mid-September 1991. From that time on, as a result of being attacked by
Croatian government forces, it became a part y to the conflict. However, it was not “a
Serbian Army” as suggested by the Applicant. As will be discussed below, the JNA
remained a de jure organ of the SFRY, acting under the political guidance of the
Presidency of the SFRY. As such, it fought in alliance with the fo rces of the Serbian
410
autonomous regions in Croatia, but these forces were not part of the JNA.
508. Finally, it is important to note that the JNA’sparticipation in the armed conflict in Croatia
was effectively over by the endof 1991 after the ceasefire agreement concluded in Sarajevo
on 2 January 1992. 411It mostly withdrew from Croatia by mi d-1992, as UNPROFOR
412
arrived and UN protecte d areas were established in the Serb-popula ted parts of Croatia.
B. The SFRY Existed As Subject of Inte rnational Law in 1991 and Early 1992 and Its
Organs Continued to Function as the SFRY Organs
1. Introduction
509. The Applicant’s view on the dissolution of the SFRY has been summarized as follows:
“(a) from mid-1991 the SFRY ceased to operate as a functioning
State and was authoritatively r ecognized as in a ’process of
dissolution’;
(b) thereafter, and in particular from Oct ober 1991, th e relevant
organs of government and other federal authorities of the
SFRY ceased to function as such and became de facto organs
409See, e.g., I.Đikić, ‘Prijeki sud pred sudom’, Feral.hr, 11 May 2006, available at
http://feral.audiolinux.com/tpl/weekly1/artiIdLanguage=7&NrIssue=1077&N… .
410See infra, Chapter VI, paras. 621–633.
411Accord implementing the cease-fire agreement of 23 November 1991, Sarajevo, 2 January 1992, reprinted in
S. Trifunovska, Yugoslavia through documents from its creation to its dissolution(1994), pp. 468–469.
412See infra paras. 560–570.
173 and authorities of the emerging FRY acting under the direct
control of the Serbian leadership, embodied in particular in the
President of Serbia but extending also to relevant officials in
Ministries of Defense and Interior;
(c) the JNA ceased to be the army of the SFRY and became,
initially, a de facto organ of the emerging FRY (comprised of
the Republics of Serbia and Montenegro) taking instructions
directly from, and acting in the service of, the Serbian
413
leadership.”
510. The Respondent strongly opposes this view which is designed to make the FRY/Serbia
responsible for the conduct of the SFRY organs d anof the organs of the emerging Serb entity
in Croatia, which took place before the FRY came into being on 27 April 1992. However, the
SFRY continued to exist in 1991 a nd early 1992 and responsibilityfor its actions, if this can
be established, can only be attributed to the SFRY. As will be demonstrated below,
- 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 differen t republics of th e SFRY; they
exercised public authority on be half of the SFRY and were not de
facto organs of the “emerging FRY” or Serbia.
511. At the outset, however, it should be noted that the Applicant repeat edly uses the legal
category of “ de facto organs” in its description of th e facts. As is well-known, this
category is used to describe a situation in which the conduct of persons or entities that
are not de jure organs of a State is nevertheless attributable to the State because these
persons or entities are in a relationship of “complete dependence” with the State.
However, this requires “a particularly great degree of State control” over such persons
or entities in which they are “mere instruments” and “lacking any real autonomy.” 414
413Memorial, para. 8.40.
414ICJ,Case concerning the Application otfhe Convention on the Preventinishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Monteneg,rJou)dgment, 26 February 2007, General List No. 91, paras. 393 & 394.
174512. With this in mind, it is clear that the Applicant misleadingly uses the terd me f“actoorgans” in
the present case. What is alleged is that certainde jureorgans (the SFRY Presidency and the
JNA) were “under direct control”of certain persons or entities (“the Serbian leadership”),
which is exactly the oppositefrom the situation ofde factoorgans where it isde jureorgans
that control certain persons or entities. In this way, the Applicant attempts to reverse the
fundamental rule that a State is responsible for the condutcof its organs, asit tries to attribute
international legal resonsibility for conduct ofde jureorgansof an existing State (SFRY) to
persons (“the Serbian leadership”) that m yahave politically influenced their conduct.
2. The Dissolution of the SFRY Was An Extended Process
513. In 1991, the SFRY faced not only the continuati on of bitter political struggles between
the Yugoslav republics and within them, but also, in the second half of the year, a short
armed conflict in Slovenia, as well as the beginning and escalation of the armed conflict
in Croatia. During 1991, the SFRY federal authorities continue d to function and
exercise public authority on behalf of the federation. However, by the end of 1991 and
in early 1992, the SFRY federal authorities we re facing substantial difficulties in their
work. These difficulties ranged from the lack of support to the outright resistance,
including armed resistance, by the governments of the Yugoslav republics. Members of
the federal organs from different republics started to leave these posts as “their”
republics became independent in th e period from October 1991 onwards. This was a
gradual process and, as will be demonstrat ed below, most of the SFRY organs
continued to function as SFRY organs until the end of 1991 and in early 1992.
514. According to assessment of an outside body, the arbitration commission of the EC peace
conference on Yugoslavia (known as the “Badinter Commission” after its president) 41, it
was not before 29 November 1991 that “the SFRY was in the process of dissolution” (“la
416
République fédérative de Yougoslavie est engagée dans un processus de dissolution”).
Thus, on 29 November 1991, the SFRY was still in existence and not yet dissolved, but
rather in the process of dissolution. This is in contrast to the Applicant’s erroneous claim
that the SFRY was in the processof dissolution “from mid-1991”. 417
415European Community Declaration, ad opted at EPC Extraordinary Minister ial Meeting, Brussels, 27 August
1991 (EPC Press Release P. 82/91), reprinted in Snežana TrifunovsYugoslavia through documents from its
creation to its dissolution (1994), pp. 333–334.
41697 RGDIP (1993), 264, 265, reprinted in Annex 11 to the Preliminary Objections.
417Memorial, para. 8.40.
175515. With this in mind, it comes as no surprise that the Security C ouncil, which had been
418
closely involved in the crisis in the SFRY since September 1991, for the first time
used the term “former Yugoslavia”, indicating the disappearance of the SFRY, as late as
419
15 May 1992. Further, it was on 4 July 1992 that the Badinter Commission concluded
that the process of dissolution of the SFRY was completed:
“En conséquence, la Commission d’Arbitrage est d’avis:
que le processus de dissolution da la R.S.F.Y. mentionné dans l’Avis n o1
du 29 Novembre 1991 est arrivé à son terme et qu’il faut constater que la
R.S.F.Y n’existe plus.” 420
3. The SFRY Was Accepted as Subject of International Law in 1991 and Early 1992
516. The Respondent has already presented ev idence during the preliminary objections
proceedings demonstrating that the SFRY was regarded as a functioning State and
421
subject of international law in 1991 and early 1992. This section will therefore briefly
summarize the evidence already provided to th e Court. It should be noted that this
evidence has not been contested by the Applicant during the preliminary objections
proceedings.
517. The fact that the SFRY was perceived and recognized as a subject of international law in
1991 and early 1992 is evinced by the fact that during this period:
- the SFRY concluded bilateral and multilateral agreements and
undertook various treaty actions, which were recognized and
accepted as valid by other States and international organizations; 422
418Security Council resolution 713 (1991) of 25 September 1991.
419Security Council resolution 752 (1992) of 15 May 1992.
42097 RGDIP (1993), 588, 590, reprinted in Annex to the Preliminary Objections.
421Preliminary Objections, para. 4.16 et seq.; CR 2008/8, pp. 56-58 (Đerić).
422See, e.g., Agreement between the Federal Executive Council of the Assembly of the Socialist Federal
Republic of Yugoslavia and the Government of the United States of America concerning the Program of the
United States Peace Corps in the Socialist Federal Repub lic of Yugoslavia, dated 1 July 1991; METAP Grant
Agreement (Environment Management Project) between Socialist Federal Republic of Yugoslavia and
International Bank for Reconstruction and Development, dated 4 October 1991, and the facsimile cover sheet
and message from the World Bank/IFC/M.I.G.A. dated 11 October 1991; Protocol between the Federal
Executive Council of the Assembly of the Socialist Federal Republic of Yugoslavia and the Government of
Romania on Trade in Goods and Services, dated 27 November 1991; the SFRY became a party to the
176 - the SFRY continued to take part in diplomatic conferences and
meetings; 423
- States continued to maintain th eir diplomatic missions to the
SFRY, while new heads of missions continued to be accredited by
notifications to the SFRY Presidency until early 1992. 424
518. All this shows that the SFRY continued to be recognized as a subject of international
law with an effective government in 1991 and early 1992.
4. The SFRY Organs Continued to Function and Were Headed by Individuals Coming
from Different SFRY Republics
(a) Introduction
519. As already discussed in the preliminary objections proceedings, 425the SFRY federal
organs continued to function after mid- 1991, were headed by individuals coming from
different republics of the SFRY, and exercise d public authority on behalf of the SFRY.
They were not de facto organs of the “emerging FRY” or Serbia, as the Applicant
erroneously contends.
520. Indeed, during 1991, the most important SFRY o fficials originated from Croatia, most
of them being ethnic Croats: the president of the SFRY Presidency (Mr. Stjepan Mesi ć,
now the President of Croatia), the SFR Y Prime Minister (Mr. Ante Markovi ć), the
SFRY Foreign Minister (Mr. Budimir Lon čar), and the SFRY Defence Minister (Mr.
Veljko Kadijevi ć). While political affiliation and the conduct of individuals do not
necessarily depend on their et hnic or territori al origin (although this has been a
Convention on the Civil Aspects of International Child Abduc tion on 1 December 1991, see http://hcch.e-
423ion.nl/index_en.php?act=conventions.statusprint&cid=24; all reproduced in Annex 23.
For example, in December 1991, the SFRY still chaire d the Coordinating Bureau of Non-Aligned Countries
in New York, whose members on 13 December 1991 adopted a “Statement on the situation in Yugoslavia”, UN
doc. S/23289 (1991); on 16-17 December 1991, the SFRY participated at a conference that adopted the
European Energy Charter, which was on th at occasion signed by the SFRY, see
http://www.encharter.org/fileadmin/user_upload/document/EN.pdf#page=211 (p. 211).
424See letter from Mr. Mikhail Gorbachev, President of the USSR to the Presidency of the SFRY, dated 5
November 1991, and letter from Mr. Soeharto, President of Indonesia, to the Presidency of the SFRY dated 15
January 1992; letter from the President of Mali to the Presency of the SFRY dated 18 January 1992; all
reproduced in Annex 24.
425Preliminary Objections, para. 416 et seq.; CR 2008/8, p. 56 et seq. (Đerić).
177 prevailing reality during the dissolution of the former Yugoslavia), the above facts
clearly show that chief State officials of the SFRY were not exclusively Serbian after
mid-1991, as the Applicant claims.
521. The Respondent has already subm itted extensive evidence onthe functioning of the SFRY
426
organs during 1991 an d in early 1992. This evidence may be su mmarized as follows.
(b) The SFRY Presidency
522. The SFRY Presidency was the collective head ofState of the SFRY. It was composed of
members coming from each of the six re publics and the two provinces, Kosovo and
Vojvodina, which were part of the Socialist Republic of Serbia. From 30 June 1991, Mr.
Stjepan Mesić from Croatia was the President of the Presidency. Although hsielection to this
post was delayed due to politica clonflict between the republics, it important to note that this
did not impair Croatia’s participation in th weork and decision-making of the Presidency. 427It
is also important to note that the President of the Presidency was primus inter paresand
428
bound to follow decisions of the Presidency as a collegial body. For example, as the
supreme commander of the JNA, the SFRY Prese incy was a party to a cease-fire agreement
of 1 September 1991, which was signed by Mr. Mć esin behalf of the Presidency.429
523. Until the beginning of October 1991, the SFRY Pr esidency operated in full or near to
full composition. Despite deep disagreements an d conflicts within th e Presidency, it is
uncontested that its sessions were attended and decisions were taken by members from
different Yugoslav republics, including Croatia. It is also uncontested that from 30 June
1991, Mr. Mesi ć from Croatia was the President of the Presidency. It is therefore
incorrect to assert, as the Applicant does, that during this time the Presidency was under
the direct control of the Serbian leadership, because that would mean that this control
extended to members from Croatia, Bosnia and Herzegovina, Macedonia, and Slovenia
(while its member participated in the sessions), which would be plainly absurd.
426See ibid.
427As a member of the Presidency, Mr. Mesi ć was in any case entitled to participate in its work, while in his
absence Croatia could be represented by the President of Croatia, see Article 324, paragraph 4, of the 1974
Constitution of the SFRY, Službeni list SFRJ [Official Gazette of the SFRY], no. 9/1974.
428See Article 328 of the 1974 Constitution of the SFRY,ibid.
429See Cease-Fire Agreement, Belgrade, 1 September 1991, reprinted in S. TrifunovskYugoslavia Through
Documents – From its creation to its dissolution (1994), pp. 334-335.
178524. Being aware of this, the Applicant states that Mr. Mesić, once he was elected President of
the Presidency, found out that “ he was not in control of the JNA” 430 and that the JNA
ignored his order of 11 September 1991 to return to the barracks. 431However, as already
mentioned, the Presidency was acollegial organ, and its Presiden t personally was neither in
control of the JNA nor had the authority to issue orders, such as the one mentioned by the
Applicant. The authority of the commander-in-ch eif belonged to the Presidency as such and
the President could only act upon its instructions or pursuant toits authorization. 432 Indeed,
for this reason Mesi ć’s order of 11 Septem ber 1991 was rejectedby the Presidency. 433
525. This is an example of an incorrect assumptionthat is used by the Applicant to support its
claim about the “decline in authority of the President of the Presidency”. 434Additionally,
the Applicant tries to supportthis claim by pure conjectures – such as when it implies that
a choice of particular wording in an agreement, or the fact that th e Minister of Defense
and presidents of Croatia and Serbia signed a cease-fire agreement, were examples of
increasing control of the Serbian au thorities over the federal structures. 435
526. As already noted, the Presidency had worked in its full or near to full composition, until
the beginning of October 1991, when Mr. Mesi ć and other members of the Presidency
could not agree on a venue for its meetings. Mr. Mesi ć claimed he was impeded to
come to Belgrade due to the JNA blockades of traffic and proposed a Croatian island on
the Adriatic Sea as a venue, 436 while four Presidency members from Serbia,
Montenegro, Kosovo and Vojvodina took the po sition that the Presidency should meet
in Belgrade. 437 The Presidency meetings indeed continued to be held in Belgrade, while
Mesić protested. 438 Members from Serbia, Mont enegro, Kosovo and Vojvodina
attended the Presidency meetings. In this way, the Presidency continued to function and
take decisions despite the absence of some of its members, which also enabled it to
continue to act as the supreme commander of the JNA.
430
431Memorial, para. 2.106 (emphasis added).
432Memorial, para. 2.107.
Constitution of the SFRY, Službeni list SFRJ [Official Gazette of the SFRY], no. 9/1974, Articles 313,
paragraph 3, and 328, paragraphs 2 & 4.
433See Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990-1995 (2002), Vol. I, pp. 94–95 (Peace Palace Library).
434See Memorial, para. 2.108.
435See Memorial, paras. 2.108 & 2.109.
436
437ICTY, Milošević, IT-02-54, testimony of Mr. Stjepan Mesić, 1 October 2002, Transcript pp. 10568-10569.
438B. Jović, Last Days of the SFRY, Excerpts from Diary (Poslednji dani SFRJ, izvodi iz dnevnika), pp. 392–393.
ICTY, Milošević, IT-02-54, testimony of Mr. Stjepan Mesić, Transcript pp. 10568-10569.
179527. This was condemned by the European Co mmunities’ Member States, which on 5
439
October 1991 refused to acknowledge decisions of the SFRY Presidency. However,
most other States continued to recognize the SFRY Presidency as the legitimate de jure
organ of the existing SFRY. This is clear from the fact that its me mbers were received
440
officially as representatives of the SFRY and that foreign ambassadors to the SFRY
441
were accredited to the SFRY Presidency in late 1991 and early 1992.
528. Finally, it should be noted that Mr. Mesi ć was recalled from the Presidency by the
442
Croatian parliament only on 5 December 1991, while he himself claimed a salary as a
443
member of the Presidency for the period until 1 January 1992. Mr. Vasil Tupurkovski
444
from Macedonia resigned from the Presidency on 8 January 1992.
529. The Applicant asserts that, as of October 1991, te hleadership of Serbiahad taken control of
the federal institutions of the SFRY, including the Presidency. 445 However, as will be
demonstrated below, some of the most important federal institutions were until the end of
1991 headed by individuals that could not be, o any account, regarded as under control of the
Serbian leadership. While it is true that the members who remained active in the SFRY
Presidency were political allies of the SerbianPresident, this does not mean that the SFRY
Presidency as such ceased to be ade jureorgan of the SFRY. In thisregard, the Memorial is
deliberately (mis)using the legal te rminology of State responsibilityd (e factoorgans, direct
control) to describe political allegiances ofetshe members of the SFRY Presidency in order to
signal that their acts should baettributed to the Serbian leadership and, then, to the FRY.
(c) ThSeFRYGovernment
530. As already mentioned, the federal govern ment (whose full name was the Federal
Executive Council) was headed by Mr. Ante Marković from Croatia. He resigned as the
SFRY Prime Minister on 20 December 1991. In the course of the summer and the fall of
439
See EC Declaration concerning the SFRY Presidency, adopted at the Informal meeting of Ministers for
Foreign Affairs Haarzuilens, 5 October 1991, reprinted inWritten Statement, Annexes, Vol. 2, Annex 12.
440For example, Mr. Jović, a member of the SFRY Presidency, was in the official visit to China on 23 November
1991, and at the official summit of the Group of 15 Non-Aligned Countries on 28-29 November 1991 in
Venezuela, see B. Jović, Poslednji dani SFRJ, pp. 411 & 414.
441Such as in the case of the USSR, Indonesia, Mali and Pakistan (Annex 24).
442See Narodne novine [Official Gazette], no. 66/1991, available at www.nn.hr . This decision was to have
443troactive effect” as of 8 October 1991.
444Letter of Mr. Mesić to the stRY Presidency, 9 January 1992 (Annex 26).
Stenographic notes of the 31 session of the Parliament of the Republic of Macedonia held on 10 January, p.
3, (Annex 27).
445Memorial, para. 2.110.
180 1991 the Federal Executive C ouncil continued to func tion and adopted various
decisions which were signed by Mr. Marković. 446 These include the decision of 25 June
1991 on the participation of the federal police in the action to return control over the
border crossings in Slovenia that had b een seized by the Slovenian authorities. 447 This
action marked the beginning of the war in Slovenia. The Prime Minister also signed a
cease-fire agreement to stop the armed conflict in Croatia on 1 September 1991,
together with the President of the Presidency, Mr. Mesi ć, on behalf of the SFRY, and
the representatives of the republics. 448
449
(d) ThJeNA
531. In 1991 and early 1992, the JNA was headed bt yhe Defense Minister, Mr. Veljko Kadijeć v,i
450
a general coming from Croatia , with a mixed ethnic background. It is thus patently
451
incorrect to refer to him as a “Serbiangeneral” as stated in the Memorial. His deputy was
Admiral Stane Brovet, a Slovene. During 1991, the federal air force was commanded by
General Anton Tus, who later went on to fighton the side of the Croatian government, and
then was succeeded by another general of Croat origin, General Zvonko Jurjevi ć, who
452
commanded the SFRY air force duringe tharmed conflict in Croatia in 1991.
532. Not even in conditions of direct clashes between the JNA and Croatian armed forces,
did the Federal Army lose its Yugoslav character: the 17th Tuzla Corps of the JNA from
453
Bosnia and Herzegovina, also took part in the operations around Vukovar. The
operations around Dubrovnik involved Operati onal Group 2 of the JNA, made up of
JNA units and the Territorial Defense from Montenegro. 454
446
See, e.g., “Decision on determining the border crossings on which customs officers carry pistols and on
conditions for keeping and carrying pi stols in the exercise of tasks nd affairs”, dated 17 December 1991,
Službeni list SFRJ [Official Gazette of the SFRY], no. 95/1991; also, various acts entitled “Decision on
appointment of ambassador in the Federal Secretariat for Foreign Affairs” dated 30 October 1991, Službeni list
SFRJ [Official Gazette of the SFRY], no. 88/1991; “Decision on the amendment of the decision on classification
of goods on forms of export and import” dated 20 November 1991, Službeni list SFRJ [Official Gazette of the
SFRY], no. 86/1991.
447
448See Službeni list SFRJ [Official Gazette of the SFRY], no. 47/1991 (25 June 1991).
449Preliminary Objections, para. 4.21.
For the JNA, see also Chapter VI.
450See Preliminary Objections, para. 4.33.
451See Memorial, para. 2.109.
452See Annex 30.
453Central Intelligence Agency (CIA),Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990–1995
45402), Vol. I, p. 442 (Peace Palace Library).
See, e.g., ICTY, Strugar, IT-01-42-T, Trial Chamber Judgment, 31 January 2005, paras. 32–37.
181533. As will be demonstrated in more detail in the next chapter, although the JNA leadership
and the Serbian leadership were political al lies during the armed conflict in Croatia in
1991, their relationship was tense and precarious, even conflicting. The evidence shows
that the JNA was not a de facto organ of the Serbian leadership, but a de jure organ of
the SFRY.
(e) The Federal Ministry of Foreign Affairs
534. The Federal Ministry (Secretariat) of Fo reign Affairs was headed by Mr. Budimir
455
Lončar, from Croatia, whose work in the mini stry was concluded in February 1992.
In 1991 and in early 1992, the SFRY had 41 Ambassadors from re publics other than
456
Serbia and Montenegro.
(f) ThCeonstitutional Court of Yugoslavia
535. The Constitutional Court of Yugoslavia (SFR Y) also performed its functions in 1991
and the early 1992 and resisted violations of the federal constitution by all republics of
the SFRY, including Serbia. As mentioned in the Preliminary Objections, a growing
number of legislative acts in Slovenia, Croa tia, but also in Serbia , began to contest the
federal constitutional system. These legislative acts were declared unconstitutional,
including 24 Serbian acts in 1991 alone. 457The Constitutional Court was thus trying to
protect the federal c onstitutional system ag ainst interests of all republic governments,
including the Serbian republic. The judge s of the Constitutional Court came from
various parts of the SFRY, and not only from Serbia and Montenegro. According to the
SFRY Constitution, 2 judges came from each of si x republics and one from each of the
458
two autonomous provinces within Serbia (Kosovo and Vojvodina). All fourteen
judges of the Constitutional Court stayed in office until 1 August 1991, while eleven of
them remained in office until the founding of the FRY on 27 April 1992. 459
455
456See Annex 28.
See Preliminary Objections, para. 4.23.
457See Preliminary Objections, para. 4.24 and note 115.
458Article 381, paragraph 1, of the 1974 Constitution of the SFSlužbeni list SFRJ [Official Gazette of the
SFRY], no. 9/1974.
459See Preliminary Objections, para. 4.26.
182536. In conclusion, the SFRY was not only recognized as subject of international law in 1991
and early 1992, but its federa l organs continued to function after mid-1991 and were
headed by individuals coming from different republics of the SFRY, thereby retaining
their federal character for much longer than the Applicant would like to admit.
(g) Conclusion
537. In conclusion, the Applicant has failed to provide evidence that the SFRY organs, in
particular the Presidency and the JNA, were de facto organs of the “emerging FRY” or
Serbia during the 1991 conflict. In particular,
(a) The dissolution of the SFRY was an extended process which was
completed in April 1992 when the FRY came into being, as
confirmed by the fact th at the Security Council started to refer to
the “former Yugoslavia” only on 15 May 1992;
(b) In 1991 and early 1992, the SFRY was still recognized as a
functioning State and a subject of international law, and as such
participated in international relations;
(c) In 1991 and early 1992, the SFRY organs continued to function and
were headed by individuals coming from different SFRY republics;
(d) These organs, in particular the JNA, were not de facto organs of the
“emerging FRY” or Serbia but de jure organs of the SFRY.
C. Human Rights Situation of the Serbs in Croatia
1. Introduction
538. As already discussed above, Serbs in Croatia were from 1990 onwards exposed to
discriminatory policies of the new Croatian government of President Tudjman and
460
HDZ and their position was becoming increasingly difficult. With the outbreak of
the war in 1991, the situation further deteri orated leading to syst ematic violations of
human rights of the Serbs. 461The Serbs in the areas wh ere the fighting took place
460See supra paras. 450–455.
461See Examples of Attacks on the Serbs in Croatian Towns 1990-1991 according to the Croatian Press (Annex 37).
183 were victims of numerous violations of inte rnational human rights, some of which will
be discussed in more detail in Chapter XII, dealing with the factual background to
Serbia’s counter-claims. The present sect ion, however, will disc uss violations of
human rights of Serbs in Croa tia that were not directly connected with the fighting. It
does not intend to provide a comprehensive account of the situation but rather an
overview of the most characteristic even ts which should serv e as part of the
background to the present case.
539. This section’s focus on human rights of the Serbs should not be taken to imply a
minimization or relativization of human ri ghts violations committed against the non-
Serbs, in particular Croats, in the Serb-held regions in Croatia in the period 1991-1995.
Rather, its purpose is to cont ribute to a more balanced picture of events than the one
presented in the Memorial and to indicate the reasons why in 1993 there where almost
equal numbers of the Croat refugees from the Serb-held areas and the Serb refugees
462
from the rest of Croatia.
2. Extrajudicial Executions and Disappearances
540. There is evidence of numerous extrajudicial executions and disappearances of Serbs in
Croatia, in particular during 1991-1992. Most of these crimes have not received proper
investigation nor have 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 several Croatian towns in 1991 and 1992 by
local military or political officials. The re lationship of the central Croatian government
and these campaigns remains to be determine d, but it is already clea r that, at least in
some cases, the government was aware of what was going on but did nothing to stop the
killings.
462The UN Special Rapporteur on human rights in the former Yugoslavia refers to UNHCR statistics stating that
as of October 1993 there was “a total of 247,000 Croatian and other non-Serbian displaced persons coming from
areas under the control of the co-called ’Republic of Srpska Krajina’ and 254,000 Serbian displaced persons and
refugees from the rest of Croatia”, Fifth periodic report on the situation of human rights in the territory of the
former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human
Rights, pursuant to paragraph 32 of Commission resolution 1993/7 of 23 February 1993, 17 November 1993,
UN Doc. E/CN.4/1994/47, para. 99. The number of Serb refugees would drastically increase after the subsequent
Croatian military operations in 1995, see infra Chapters XII and XIII.
184541. Such a killing campaign took place in the Eastern Slavonian town of Osijek where,
according to some estimates, more than 50 Serbs were killed during 1991 and 1992. 463
A recent trial of one of the local HDZ leaders at the time, Mr. Branimir Glavaš, revealed
that he personally established a special military unit which he directed to detain torture
and kill civilians. The trial established his responsibility for the killings of 6 individuals,
mostly Serbs, by this unit, as well as for the killing of 1 Serb and torture of others by his
464
subordinates in a related case.
542. A massacre of Serbs took place in Paulin D vor, which is located on the road between
Osijek and Vinkovci, on 11-12 November 199 1. Members of the Croatian army, after
having heard that their fellow soldier was killed, went to Paulin Dvor to take revenge
against the Serb inhabitants and killed 18 of them by automatic gun fire and bombs. 465
Subsequently, the Croatian authorities orga nized a secret removal of the bodies to a
466
location at the other end of Croatia to hide the traces of the massacre.
467 468 469
543. The killings of Serbs were also committed in Vukovar , Sarvas , Cerna and other
places in Eastern Slavonia. It is estimated that more than 50 Serb civilians were killed
470
or disappeared in Vukovar in 1991.
544. In Western Slavonia, a number of Serbs was killed after being detained in improvised
prisons in Marino Selo and Pakra čka Poljana. 471The UN Commission of Experts
463See Report of the Non-Governmental Organization “V eritas”, Serb Victims of War and Post-War in the
Territories of Croatia and the former Republic of Serbian Krajina 1990-1998 dated 31 October 2009 (Annex 66).
464Both cases were tried together, for the text of the judgment see
465p://www.centar-za-mir.hr/uploads/OSIJEK_izvjestaji_za_2009._godinu.doc; see also Annex 38.
For a summary of facts and criminal proc eedings where two persons were accussed, see http://www.centar-
za-mir.hr/index.php?page=article_sudjenja&trialId=31&article_id=48&lang=hr (Annex 39).
466See D. Hedl, ‘12 Year Prison Sentence’, Feral Tribune, 15 April 2004, available at
http://www.ex-yupress.com/feral/feral245.html.
467
See V. Dabic & K. Lukic, Crimes Without Punishment (Vukovar 1997), available at
468p://archive.serbianunity.net/politics/war_crimes/vukovar/index.html.
See, e.g., a report by Croatian weekly Nacional, 15 May 2006, available at
http://www.nacional.hr/clanak/print/25184.
469In the village of Cerna, Županja municipality, the members of the Croatian army killed 4 members of the
Olujić family on 8 February 1992, for details of this incident and of the criminal proceedings which were
completed in 2009, see
470p://www.centar-za-mir.hr/index.php?page=article_sudjenja&trialId=39&article….
See Report of the Non-Governmental Organization “V eritas”, Serb Victims of War and Post-War in the
Territories of Croatia and the former Republic of Serbian Krajina 1990-1998 dated 31 October 2009 (Annex 66).
471Ibid; according to “Veritas”, the number of the Serbs killed was over 100; s ee also report by the Centre for
Peace, Non-Violance and Human Rights fr om Osijek, Monitoring war crime trials: The war crime in Marino
Selo (Annex 40).
185 established that 19 individuals were buried in nine separate graves in a field south of
Pakračka Poljana, while the area around the gr aves was used as an execution site. 472In
2009, six Croatian military policemen were convicted for war crimes in relation to the
killing of 17 Serbs in Pakračka Poljana. 473
545. Various sources indicate that there were more than 100 kill ings and disappearances of
civilians, mostly Serbs, in the town of Sisak in the second half of 1991. 474 Some of them
have been reported by Amnesty International, whose 2004 report concluded that despite
information about widespread human rights violations against the Serbs in Sisak,
475
Croatian authorities have failed to bring the perpetrators of these crimes to justice. It
should be noted, however, that Croatia n authorities, including President Tu đman, were
informed about some of the crimes in Osije k already in 1991, at the time when this
476
killing campaign was unfolding, but did nothing to stop it.
546. A similar killing campaign took place in Gospi ć in the second half of 1991. The
criminal proceedings against so-called “Gospi ć group” confirmed th at at least 50
civilians, mostly Serbs, were abducted and killed in organized fashion by the members
477
of the Croatian army. According to various sources, the total number of the killed
478
Serbs in Gospić at the time may be between 100 and 200.
472Letter dated 24 May 1994 from the Secretary-General to the President of the Se curity Council, Addendum,
Volume V, 28 December 1994, UN Doc. S/1994/674/Add.2(Vol.V), para. 259.
473See RTL, ‘Za zlocin kod Pakracke poljane osud jena sestorica’, 13 March 2009, available at
http://www.rtl.hr/index.php?cmd=show_clanak&clanak_id=5538 . At another trial, 5 former members of the
Croatian police reserve were convicted for crimes related to Pakracka poljana, see Index.hr, ‘Optuzenici krivi za
slucaj ‘Pakracka poljana’’, 15 September 2005, available at http://www.index.hr/vijesti/clanak/optuzenici-krivi-
474slucaj-pakracka-poljana/282856.aspx.
“Veritas” Report (Annex 66); see also, Hrvatska ljevica, 1-31 July 2002, no. 7, pp. 19-21.
475Amnesty International, ‘A shadow on Croatia’s future: Continuing impunity for war crimes and crimes
against humanity’ (13 Dec. 2004), p. 17, available at
http://www.amnesty.org/en/library/asset/EUR64/005/2004/en/dae5645d-d54c…-
d58a49c0d652/eur640052004en.pdf(Annex 42).
476
477See Hrvatska ljevica, 1-31 August 2002, no. 8, p. 17.
478See excerpt from District Court of Rijeka, Orešković et al. case, Judgment of 24 March 2003 (Annex 41).
The UN Special Rapporteur on human rights in the former Yugoslavia received information that between 100
and 200 Serbs were killed in Gospi ć in mid-October 1991 by Croatian army soldiers, see Tenth periodic report
on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki,
Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 37 of Commission resolution
1994/72 of 9 March 1994, 16 January 1995, UN doc. E/CN.4/1995/57, para. 52. The non-governmental
organization Veritas estimates that the number of the Serbs killed in Gospic in 1991 is more than 120, see
“Veritas” Report (Annex 66).
186547. Killings of Serbs were also committed in Zagreb, Split, and Zadar, 479 as well as in
Virovitica, Šibenik, Otočac, Karlovac, Ogulin, Grubišno polje, Daruvar and Podravska
Slatina 480and other places in Croatia. A well-kno wn example is the killing of Mr. and
Mrs. Zec and their 12-year-o ld daughter in Zagreb, in December 1991. The suspected
perpetrators, members of a special unit of the Croatian police, were acquitted due to
procedural irregularities, although they confessed the crime. 481
3. PrisConamps
548. As already mentioned, the Croatian authorities formed a number of improvised prison
camps during the war, in which they detained captured or surrendered members of the
482
local Serb forces, JNA, as well as Serb civilians. Serious violations of human rights
and humanitarian law took place at these sites, even leading to massacres of detainees,
483
such as in the case of Pakracka Poljana, in Western Slavonia.
549. A notorious prison camp was established in Sp lit, in “Lora”, the former JNA barracks
and port. An undetermined number of inma tes was held in “Lora” from 1992 onwards
in the custody of the Croatian Army. They were subjected to torture, inhuman and
degrading treatment, while some of them were killed. The commander of the camp and
484
a number of guards were indicted only in 2002, and convicted for war crimes in 2006.
479M. Pupovac, “A Settlement for the Serbs“, in Yugofa x: A project of War Report and the Helsinki Citizens
Assembly (London, 1992), p. 17 quoted in M. Tanner, Croatia: A Nation Forged in War, Yale University Press,
New Haven and London, 1997 p. 282; M. Ljubi čić – L. Šušak, “Serija optuženih i selekcija ošte ćenih”, Pravi
480ovor, no. 38 (2002), pp.14-16.
481M. Ljubičić – L. Šušak, “Serija optuženih i selekcija oštećenih”, Pravi odgovor, no. 38 (2002) pp.14-16.
Ninth periodic report on the situation of human rights in the territory of the former Yugoslavia submitted by
Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 37 of
Commission resolution 1994/72 of 9 March 1994 and Economic and Social Council decision 1994/262 of 22
July 1994 , 4 November 1994, UN doc. A/49/641-S/1994/1252, para. 98. See, also, Amnesty International, “A
shadow on Croatia’s future: Continuing impunity for war crimes and crimes against humanity” (13 Dec. 2004),
pp. 10-11, available at http://www.amnesty.org/en/library/asset/EUR64/005/2004/en/dae5645d-d54c…-
482a49c0d652/eur640052004en.pdf.
See Letter dated 24 May 1994 from the Secretary-Ge neral to the President of the Security Council,
Addendum, Volume V, 28 December 1994, UN Doc. S/ 1994/674/Add.2(Vol.IV), Annex VIII, Prison camps,
para. 167.
483See supra para.544.
484For more details about the proceedings, see
http://www.centar-za-mir.hr/index.php?page=artlie_sudjenja&trial16&arti… ; see also Hearing
Minutes of Witness Milanče Tošić (Annex 44) and Witness Vojkan Živkoći(Annex 45).
187550. Another prison camp was in Kerestinec, in the vicinity of the Croatian capital, Zagreb.
This camp was also run by the Croatian Army. According to press reports, the prisoners
in Kerestinec were subjected to torture, maltreatment, rapes and killings at the
485 486
beginning of 1992. Until today, no one was indicted for the crimes in Kerestinec
although it is known who were the officers in charge of the camp at the relevant time.
551. There are reports that serious violations of hu anmrights and humanitarian law were committed
in other prisons in Croatia, such as the “Red Barracks”C ( rvena kasarna ) facility in Osijek.
487
Former inmates testify about torture, m ltaeatment and rapes in the “Red Barracks” but there
is no information that this has been nviestigated by the Croatian authorities.
4. A Pattern of Discrimination
552. During the war, the Croatian authoritie s conducted or tolerated numerous and
systematic violations of human rights of the Serbs, in addition to arbitrary killings and
torture described above. In late 1992, the UN Rapporteur for human rights in the former
Yugoslavia stated that “[d]iscrimination, ha rassment and maltreat ment of ethnic Serbs
are also serious and widespread problems” a nd reported that lists of citizens indicating
their ethnic origin were circulating in Croatia. 488The present section will briefly outline
the main elements of the pattern of discrimination against the Serbs at the time.
553. Thousands of houses of the Croatian citizen s of Serb ethnic origin were destroyed
489
deliberately, with no connection to the fighting, by explosive or arson. It is reported
that 7,489 such buildings were destroyed in 1992 alone. 490 According to the UN Special
Rapporteur on human rights in the former Y ugoslavia, “on the whole, the authorities
have not demonstrated a serious willingness to suppress such acts.” 491
485
See “Bajic na tragu monstrumima iz vojnog logora Kerestinec”, Nacional, 7 April 2008, available at
486p://www.nacional.hr/clanak/44286/bajic-na-tragu-monstrumima-iz-vojnog-logor… .
Although there are recent reports from unofficial sources that investigation in this case has begun, see Radio
Free Europe, ‘Pocela istraga o mucenjima u Kerestincu’, 7 April 2009, available at
http://www.danas.org/content/kerestinec/1603434.html?page=3.
487See testimony of Mirko Borota, a former prisoner of war, available at
http://www.b92.net/info/emisije/istrazuje.php?yyyy=2006&mm=07&nav_id=20….
488Report on the situation of human rights in the territo ry of the former Yugoslavia submitted by Mr. Tadeusz
Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 14 of Commission
resolution 1992/S-1/1, 3 September 1992, UN Doc. A/47/418-S/24516, paras. 26-27.
489
490See Examples of Attacks on the Serbs in Croatian Towns 1990-1991 according to the Croatian Press (Annex 37).
Fifth periodic report on the situation of human rights in the territory of the former Yugoslavia submitted by
Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 32 of
Commission resolution 1993/7 of 23 February 1993, 17 November 1993, UN Doc. E/CN4/1994/47, para. 131.
491Ibid., para. 132.
188554. The Serbs were also evicted from their apar tments, sometimes with brutal force. These
evictions were not conducted solely by r ogue individuals, alt hough there were many
492
such cases tolerated by the Government, but were mainly the result of actions of the
493
authorities. In 1994, the UN Special Rapporteur on human rights in the former
Yugoslavia warned the Croatian Government that
“the practice of illegal and forced evictions constitutes a violation of the
right not to be subjected to arbi trary or unlawful interference with
privacy, family or home, as well as the principle of non-
494
discrimination.”
555. The Serbs in Croatia also faced difficulties in acquiring Croatian citizenship. During the
former SFRY, the citizens had, in addition to the SFRY citizenship, also a republican
citizenship which was of little legal signif icance. A large number of persons did not
have the republican citizenship of the repub lic in which they lived. However, when the
SFRY dissolved, the citizenship legislation of Croatia provided that Croatian citizens
would be those individuals ho lding the republican citizenship of the Socialist Republic
of Croatia, as well as ethnic Croats residing in Croatia at the time the law took effect.
All others were required to go through the process of natura lization in order to acquire
Croatian citizenship, despite the fact that they had been lawfully resident in Croatia for
years, as SFRY citizens. In the meantime, they were in the position of aliens and denied
rights such as social allowance, including medical care and pension. 495 In the
application of Croatia’s citizenship law, many Serbs were deprived of or denied
Croatian citizenship. 496
492
See Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr.
Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to Commission
resolution 1992/S-1/1 of 14 August 1992, 10 February 1993, UN Doc. E/CN.4/1993/50, para. 121, reporting
493ced evictions in the Dubrovnik area.
For more, see, e.g., Fifth periodic report on the sitation of human rights in the territory of the former
Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights,
pursuant to paragraph 32 of Commission resolution 1993/7 of 23 February 1993, 17 November 1993, UN Doc.
E/CN.4/1994/47, para. 126 et seq.
494Sixth periodic report on the situation of human rights in the territory of the former Yugoslavia submitted by
Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 32 of
Commission resolution 1993/7 of 23 February 1993, 21 February 1994, UN Doc. E/CN.4/1994/110, para. 99.
495
For more, see, e.g., Fifth periodic report on the sitation of human rights in the territory of the former
Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights,
pursuant to paragraph 32 of Commission resolution 1993/7 of 23 February 1993, 17 November 1993, UN Doc.
E/CN.4/1994/47, para. 115 et seq.
496Ibid., para. 123.
189556. The discrimination and persecution of the Serbs were encouraged by a climate of intolerance
and hate speech towards them. The attitude ofethnic differentiation was expressed even by
government officials. For example, in connection with an incident involving some Serb
medical staff in the Rovinj hospital in 1994, Mr.Andrija Hebrang, the minister of justice at
497
the time, stated the following: “In the middle of Istria, in Rovinj, you have a national
composition where 30 per cent of the staff in the hospital is not of Croatian origin; this is not a
498
situation which was created by cha ce by the former Yugoslav regime.”
557. According to the UN Special Rapporteur, “[t]he general attitude pervading the Croatian
499
media vis-à-vis the Serb people is negative.” As an extreme example, he mentioned
Hrvatski vjesnik, a weekly whose front page carried the headline “Serbs – be damned,
wherever you are” below which was the following text, quoted by the UN report:
“I congratulate all Serb readers of Hrvatski vjesnik on their holiday, 22
April, which they are celebrating in occupied Vrbograd (now called
Jasenovac) [the chief concentration camp in Croatia during the Second
World War]. To remind you, I publish this picture [of war criminals Ante
Pavelic, Rafael Boban and Jure Francetic, who were affiliated with the
Ustashe]. This is the beginning of the end for the criminal people in these
territories, the beginning of the end for the Serbs [sic], the reason for
500
everything that has happened to us”.
558. This text was followed by a “poem” on the last page which was an invitation to kill and
501
rape Serbs. Hrvatski vjesnik received financial support from the government-
controlled companies, while the authorities never condemned, let alone prosecuted those
502
responsible for the hate speech.
497
498Mr. Hebrang is the HDZ candidate at Croatia’s 2009 presidential elections, see www.hebrang.com.
Ninth periodic report on the situation of human rights in the territory of the former Yugoslavia submitted by
Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 37 of
Commission resolution 1994/72 of 9 March 1994 and Economic and Social Council decision 1994/262 of 22
July 1994 , 4 November 1994, A/49/641-S/1994/1252, para. 103.
499Situation of human rights in the territory of the former Yugoslavia, Special report on the media, Report of the
Special Rapporteur submitted pursuant to Commission resolution 1994/72, 13 December 1994, UN Doc.
E/CN.4/1995/54, para. 93.
500
501Ibid., para. 94 (comments in the original).
502Ibid.
Ibid., para. 95 ; see also Public Statements which Directly Provoked Perpetrators to Commit Genocide against
the Serb National Group in Croatia (Annex 51).
1907.onclusion
559. The above overview testifies thatthere was a pattern of serious violations of human rights
of the Serbs in Croati a, unconnected to combat operations, during the period1991-1995.
Particularly striking isthe horrendous nature ofthe killing campaignsagainst Serb residents
in some Croatian cities.Despite the fact that Croatia has made some progress over the last
years in bringing those responsible for the crimesagainst the Serbs to justice, it seems that
concerns voiced in 200 4 by the UN Committee against Torture remain:
“The Committee is concerned about the following:
(a) In connection with torture and ill-treatment which reportedly occurred
during the 1991-1995 armed conflict in the formerYugoslavia:
(i) The reported failure of the State party to carry out prompt,
impartial and full investigations, to prosecute the
perpetrators and to provide fair and adequate
compensation to the victims;
(ii) Allegations that double standards were applied at all
stages of the proceedings ag ainst Serb defendants and in
favour of Croat defendants in war crime trials;
(iii) The reported harassment, intimidation and threats faced by
witnesses and victims testif ying in proceedings and the
503
lack of adequate protection from the State party [.]”
D. UNPROFOR
560. In the present context, it is important to note that the major hostilities of the 1991 war in
Croatia were effectively over by the beginning of December that year. 504After a series
of unsuccessful cease-fire agreements, the cea sefire agreement concluded in Sarajevo
505
on 2 January 1992 was to be generally respected by the parties in the conflict.
503Consideration of reports submitted by states parties under Article 19 of the Convention, Conclusions and
Recommendations of the Committee against Torture, Croatia, 11 June 2004, UN Doc. CAT/C/CR/32/3, para. 8.
504A cease-fire in Dubrovnik was agreed on 5 December 1991, see ICTY, Miloševi ć, IT-02-54-T, Order
concerning a chronology of events in the Croatia part of the case, number 77.
505Accord implementing the cease-fire agreement of 23 November 1991, Sarajevo, 2 January 1992, reprinted in
S. Trifunovska, Yugoslavia through documents, pp. 468–469.
191561. On 15 January 1992, the member States of the European Community recognized
Croatia as an independent State, with Ge rmany already having recognized it on 23
506
December 1991.
562. As already mentioned, on 19 December 1991, the Assembly of the SAO Krajina
proclaimed the RSK, which was joined by the SAO Western Slavonia and SAO
Slavonia, Baranja and Western Sirmium on 26 February 1992. The Constitution of the
RSK defined it as the “national state of the Serbian people and the state of all citizens
507
living in it.” The legislative and constituti onal powers belonged to the RSK
Assembly, while the government had execu tive powers. The RSK was represented by
508
its President. The RSK President commanded the armed forces in peace and war, as
509
well as the “people’s resistance” during the war. The armed forces of the RSK
510
consisted of its territorial defense (TO). Amendments to the RSK Constitution
511
established the Serb Army of Krajina (“SVK”) on 18 May 1992. In 1993, further
constitutional amendments introduced a Supreme Defe nse Council. The SVK was
commanded by the president of the RSK on the basis of the RSK Constitution and
512
decisions taken by the Supreme Defense Council. While the RSK was never
recognized as a State, it had de facto control over substantia l territory and enjoyed
loyalty of its population. While it enjoyed po litical and financial support of the FRY,
the RSK was neither a part of the FRY nor an entity under its control, but a de facto
State entity on the territory of Croatia.
563. Already by the end of November 1991, the SFRY Government requested the UN
513
Security Council to establish a pe ace-keeping operation in Yugoslavia. The UN
Secretary-General’s Special Representative for Yugoslavia, Cyrus Vance, devised a
506Statement by the Presidency [of the European Community] on the Recognition of Yugoslav Republics,
Brussels, 15 January 1992 (EPC Press Release, P. 9/92), reprinted in S. Trifunovska, Yugoslavia through
507uments, p. 501.
Article 1, Устав Републике Српске Крајине [Constitution of the Republic of Serbian Krajina], Службени
гласник РСК [Official Gazette of the RSK], no. 1/1992, available at
http://www.hic.hr/ratni-zlocini/sluzbeni%20glasnici/1992%20godina/Sg_92…(Annex 19).
508Ibid., Article 8.
509Ibid., Article 78, para. 1 (5).
510Ibid., Article, 102, para. 1.
511Amendment VIII of 18 May 1992, Службени гласник РСК [Official Gazette of the RSKrajina], no. 9/1992,
512ilable at http://www.hic.hr/ratni-zlocini/sluzbeni%20glasnici/1992%20godina/Sg_92… 20)
See Amendments XII-XIV of 20 April 1993,СлужбенигласникРСК [Official Gazette of the RSK], no. 2/1993,
513ilable athttp://www.hic.hr/ratni-zlocini/sluzbeni%20glasnici/1993%20godina/Sg_93…(Annex 22).
See Security Council resolution 721 (1991), Preamble, para. 2.
192 plan for such an operation (“Vance Plan”). 514 On 15 December 1991, the Security
Council approved the establishment of a p eace-keeping operation in Yugoslavia, but
also agreed with the Secretary-General’s view that the conditions for it still did not
exist.515
564. Initially, both Croatia and the RSK ha d reservations about the Vance plan. 516The RSK
leadership was reluctant to accept the plan inter alia because it envisaged the
demilitarization of the UN protected zones, while the UN forces were considered as not
able to provide sufficient protection to the population from a Croatian attack. 517The
main opponent of the Vance Plan was RSK’s President Milan Babi ć. The SFRY and
Serbian leaders had to invest enormous politi cal capital in order to procure the consent
of the RSK to the Vance Plan. Eventually, the RSK Assembly removed Babic from the
office of President, and accepted the Vance Plan. 518
565. Following the establishment of a sustained cease-fire and the acceptance of the plan for
a UN peacekeeping mission by all parties to the conflict, the UN Security Council
established UNPROFOR on 21 February 1992. 519
566. United Nations peacekeeping troops and police monitors were deployed in those areas
of Croatia where Serbs constituted the ma jority or a substantial minority of the
population and “where inter-communal tensions have led to armed conflict in the recent
past.” These areas were designated as “U nited Nations Protected Areas” (“UNPAs”).
The idea was to stop the armed conflict and to prevent it from spreading further, which
would create the necessary conditions “for successful negotiations on an overall
settlement of the Yugoslav crisis.” 520
514See Report of the Secretary-General pursuant to Security Council Resolution 721 (1991), UN Doc. S/23280,
515December 1991, Annex III.
516Security Council resolution 724 (1991), para. 2.
Further Report of the Secretary-General pursuant to Security Council Resolution 721 (1992), UN Doc.
S/23513, 4 February 1992, para. 19.
517Ibid., para. 12.
518See Further Report of the Secretar y-General pursuant to Security Council resolution 721 (1991), UN doc.
S/23592, 15 February 1992, paras. 7–8; ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007,
para. 149.
519
520Security Council resolution 743 (1992), para. 2.
Report of the Secretary-General pursuant to Security Council resolution 721 (1991), UN doc. S/23280, 11
December 1991, paras. 11–12.
193567. The UNPAs were to be fully demilitarized a nd all armed forces on their territory would
either be withdrawn or disbanded. The role of the United Nations troops was to ensure
that UNPAs remain demilitarized and “that all persons residing in them were protected
from fear of armed attack.” 521 The role of the United Nations police monitors was to
ensure that the local police carried out their duty without discriminating against persons
of any nationality or abusing anyone’s human rights. 522
568. There were three UNPAs, which covered four sectors:
1) UNPA Krajina covering Sector South (Lika and Dalmatia) and
Sector North (Banija and Kordun);
2) UNPA Western Slavonia covering Sector West;
523
3) UNPA Eastern Slavonia covering Sector East.
569. The UNPAs did not encompass all areas of the conflict that were outside the control of
the Croatian government. Subsequently, UNP ROFOR’s authority was also extended to
these areas, which were called the “pink zones”. 524
570. The events following the deployment of UNP ROFOR are discussed in more detail in
Chapters XII and XIII, as they are particul arly relevant in the context of Serbia’s
counter-claims. What followed after the de ployment of UNPROF OR were almost 4
years of tensions, armed confrontations bu t also negotiations be tween the parties.
UNPROFOR had difficulties in fulfilling it s mandate, with the demilitarization of
UNPAs remaining a thorny and unresolved issu e. Despite considerable progress made
between the parties in 1994 in establishi ng a permanent cease-fire and cooperating in
economic matters, Croatia decided to resolv e the problem of the RSK by the use of
force. As will be discussed in detail in the context of Serbia’s counter-claims, this lead
to genocide against the Krajina Serbs during the operation Storm in 1995.
521Ibid., para. 12.
522Ibid.
523See ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 150.
524For more, see infra Chapter XII, para. 1118.
194 CHAPTER VI
PARTICIPANTS IN THE ARMED CONFLICT IN CROATIA 1991-1995
1. Introduction
571. The present chapter will discuss the main partic ants in the armed conflict in Croatia in 1991-
1995. It will deal primarily with allegations ma ideChapter 3 of the Memro ial which is entitled
“The JNA and the Paramilitary Groups”. Howevef r, r the sake of completeness, the present
chapter will also briefly mentio ne participants in the armecdonflict on the Croatian side.
572. As a general comment, it should be noted that the simplified and biased approach taken
by the Applicant in its Memori al is also prevalent in its Chapter 3. For example, the
Applicant bundles together all the different volunteer groups fighting against the Croatian
government and the forces of the SAO Krajina and the RSK into one group which it calls
525
“Serb paramilitary groups”. By treating these groups as one single category, by mixing
evidence relating to various armed groups and formations, and by alleging that all these
forces and groups were part of the JNA, 526 the Applicant attemp ts to attribute the
responsibility for the conduct of all these groups to the JNA and, in line with its in statu
nascendi theory, to the FRY. In fact , the Applicant tries to crea te an impression that all
these groups and forces acted as part of one unf iied force, and, in this way, it tries to avoid
providing specific evidence related to each of them, in particular proof of their
relationship with the JNA. This comes as no surprise, considering that the evidence put
forward by the Applicant in this regard isclearly insufficient tosupport its claims.
573. In this regard, it should be noted that the Applicant came into possession of large
quantities of documentation from the archives of the RSK and its municipalities, after it
militarily defeated the RSK in 1995. 527 Since it is presumed th at the Applicant would
rely upon the best evidence ava ilable to support its claims if such evidence actually
exists, the Applicant’s failure to provide sufficient evidence in this chapter and
elsewhere in the Memorial implies that its claims find insufficient support in the facts.
525Memorial, para. 3.49.
526See Memorial, para. 3.54. et seq.
527N. Barić, Srpska pobuna u Hrvatskoj 1990-1995(2005), pp. 15–16.
195574. The present chapter will firstly provide a brie f outline of the forces fighting on the side
of the Government of Croatia. Secondly, it will discuss the role of the JNA and, thirdly,
the armed formations of the Serbian aut onomous regions in Croatia and the RSK.
Fourthly, the present chapter will discu ss the allegations made about volunteer
formations that were fighting against the Government of Croatia.
2. Forces of the Government of Croatia
528
575. As already discussed, the HDZ government in Croatia started to prepare for an armed
conflict soon after its forma tion in mid-1990. Initially, its armed combat forces were
developed within the Ministry of the Interior (MUP) wh ere the number of policemen
almost doubled, while at the same time the Se rbs were cleansed from the force. The
special antiterrorist unit of the MUP was hugely expanded into a number of special
battalions. In May 1991, these special forces , together with the MUP reserve police,
were transformed into the Croatian Nati onal Guard Corps. By the end of 1991, the
National Guard changed its name into the Cr oatian Army (“Hrvatska vojska” – “HV”).
In the fall of 1991, the Croatian army unde rwent restructuring and by January 1992
529
numbered some 200,000 troops, while the MUP had over 40,000 personnel.
576. In addition, there were also paramilitary forces fighting on the side of the Croatian
government during the war in Croatia in 1991–1995. These included the forces of the
Croatian Defence Council from Bosnia a nd Herzegovina (“Hrvatsko vijece obrane” –
“HVO”), which were described as the “surrogate forces” of the Croatian
Government. 530
577. Another group that needs to be mentioned is the HOS (“Hrvatske obrambene snage” –
the Croatian Defence Forces), the paramilita ry wing of the Croatian Party of Rights
(HSP). The HOS fought in Croatia and Bosnia and Herzegovina against the Serbs. Its
528
529See supra paras. 467–472.
Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990-
5305 (2002), Vol. I, p. 96 (Peace Palace Library).
See Final report of the Commission of Experts established pursuant to Security Council resolution 780
(1992), 31 May 1995, UN Doc. S/1994/674/Add.2(Vol.I), Annex III, p. 30, para. 164; The HVO units openly
accepted the Ustashe traditions from the World War II: th ey created a battalion at Vitez which bore the name
"Jure Francetić” (Commander of the Ustashe Black Shirts), and a brigade named after Eugen Kvaternik, one of
the Ustashe leaders, at Bugojno. See Central Intelligence Agency (CIBalkan Battlegrounds: A Military H
istory of the Yugoslav Conflict –91995, Vol. I, pp. 198 & 484 (Peace Palace Library).
196 soldiers wore black uniforms bearing the Croatian checkered shield, similar to those
worn by the Ustashe in World War II, and used the Ustashe form of saluting. They
reportedly operated under command of the Croatian Army. After 1993 its soldiers were
integrated into the HVO. 531
3. TJhe A
578. In Chapter 3 of the Memorial , the Applicant claims that the JNA was from the mid-
532
1980 gradually transformed into a “Serbian Army”. This is in line with the
Applicant’s general claim that the SFR Y organs, including the JNA, became de facto
organs of the emerging FRY under the contro l of the Serbian leadership. This has
already been refuted in the previous chapter. 533
579. With respect to the JNA in particular, the Applicant claims that it underwent a
process of “Serbianisation” which was refl ected in (a) changes to the JNA’s ethnic
534
composition and management and (b) its restructuring in 1988. Furthermore, the
Applicant provides an inaccurate and mislead ing interpretation of events up to and
during the war in Croatia in 1991, in orde r to show that the JNA was completely
535
controlled by Serbia. As will be demonstrated be low, these clai ms are mere
conjectures:
- the JNA ethnic composition started to change only in 1991;
- the JNA’s senior commanding officers reflected the ethnic diversity
of the SFRY;
- the JNA’s restructuring in 1988 wa s the result of a decision taken
by representatives of all SFRY republics and autonomous
provinces;
- the JNA was a de jure organ of the SFRY.
531See Final report of the Commission of Experts established pursuant to Security Council resolution 780
(1992), 31 May 1995, UN Doc. S/1994/674/Add.2(Vol.I), Annex III. A, p. 19, para. 61et seq.
532Memorial, para. 3.14. et seq.
533See Memorial, para. 8.40, and supra Chapter V.
534Memorial, para. 3.14. et seq.
535Memorial, para. 3.22. et seq.
197A. Ethnic Composition of the JNA
580. The Applicant provides the following data on the ethnic composition of the JNA officer
536
corps: 63.2% Serbs and 6.3% Croats before 1986, and 70% Serbs after 1986.
However, according to the data obtained by the Respondent, in the period before the
conflict the percentage of Serbs in the officer corps was significantly lower (56%
instead of 63.2%), while the percentage of Croats was significantly higher (11.5 %
537
instead of 6.3%), than the Applicant claims. Importantly, this ratio remained
unchanged during the period in question, which refutes the A pplicant’s claim that the
538
JNA “[underwent] a process of 'Serbianisation' beginning in the mid-1980's”.
581. While it is true that in the SFRY the share of the Serbs in the officer corps of the JNA
was higher than their share in the SFRY popul ation (approximately 56% in the officer
539
corps in comparison with 36 % in the overall population ), this should be understood
in light of the fact that over the years the number of Croats and Slovenes who applied to
military schools and academies had been much lower than their ratio in the overall
540
population. This led to their relatively lower numbers in the officer corps as well.
Among the JNA generals, however, the ratio of Serbs and Croats be tter reflected the
ratio of these groups in the overall populatio n: out of a total of 162 generals on 1
January 1990, there were 23 Croats (14.2%) and 86 Serbs (53.1%). 541
582. In this context, one should also consider so me of the top positions in the JNA that were
held by non-Serbs at the beginning of 1991: Defense Minister (General Kadijević),
Deputy Defense Minister (Admiral Brove t), Air Force Commander (General Tus),
st th
Commander of the 1 Military District (General Spirkovski), Commander of the 5
Military District (General Kolšek), Comma nder of the Fleet of Military-Naval District
(Vice-Admiral Fridrih Moreti), and the pres ident of the Committee of the League of
542
Communists of Yugoslavia in the JNA (Admiral Grubišić).
536
537Memorial, para. 3.15.
See Annex 30; This information was received from the Ministry of Defence of the Republic of Serbia. On the
yearly basis the data on the ratio of the Serbs and Croats in the officer corps of the JNA was as follows:
1987: 56.3% Serbs and 11.5% Croats; 1988: 55.9% Serbs and 11.6% Croats; 1989: 55.25% Serbs and 11.51
Croats; 1990: 55.92% Serbs and 11.58% Croats.0
538See Memorial, para. 3.13.
539See ‘The National Composition of Yugoslavia’s Population, 1991,ugoslav Surve, Vol. 33, no. 1 (1992), p. 12,
540le VII.
541See Annex 30.
542Ibid.
See Annex 30.
198583. All this indicates that it is inaccurate to claim, as the Applicant does, that “JNA officers
543
who had indicated support for the idea of ‘Greater Serbia’ were elevated.”
584. In conclusion, the Applicant’s claim concer ning a purported change of ethnic structure
of the JNA in order to make it a Serbian army simply is not supported by the facts. The
ethnic structure of the J NA remained unchanged during the 1980s and up to 1991. It
was only with the outbreak of ethnic conflicts in the SFRY that the JNA’s ethnic
structure began to change.
B. The JNA’s Restructuring in 1988
585. The Applicant heavily relies on the JNA’s re structuring in 1988, which it regards as a
“further shift towards the promotion of Serbian interests”. 544In particular, it is implied
that the new division of military districts was deliberately made in such a way to
correspond to the borders of the “Greater Serbia”. 545
586. This is nothing more than a mere conjecture. The Applicant fails to appreciate the fact
that the JNA’s restructuring in 1988 was done pursuant to a decision adopted by the
SFRY Presidency, which consisted of repres entatives of all republics and autonomous
provinces. 546 Accordingly, it is inaccurate to say, as the Applicant does, without
providing any evidence for this, that “[t] hese changes were badly received by the
Republics, with the exception of Serbia...” 547
587. The Applicant’s claims about the JNA’s “S erbianisation” are not only inaccurate but
they also completely fail to take into acc ount the fact that the JNA was an important
integrative factor of the SFRY, which “...vi ewed itself both as th e protector and the
embodiment of the Socialist Federal Republic of Yugoslavia (SFRY), with a special
548
role in safeguarding the Yugoslav state and identity.”
543Memorial, para. 3.21.
544See Memorial, para. 3.17. et seq.
545
546Ibid., para. 3.19.
547This is confirmed by the Applicant, see Memorial, para. 3.17, note 31.
548Memorial, para. 3.18.
Central Intelligence Agency (CIA),Balkan Battlegrounds: A Military History of the Yugoslav Confli–19959
(2002), Vol. I, p. 46 (Peace Palace Library).
199C. The Applicant’s Misleading Interpretation of Events up to and including the War in
Croatia
588. As will be demonstrated below, the Applicant provides a misleading interpretation of
the events leading to the war in Croatia, which is also designed to show that the JNA
promoted Serbian interests and ultimately came under “full” control of the Serbian
leadership.
589. Despite the dramatic heading (“Purpose of Reorganisation and the Preparations for the
Genocide”), the section of the Memorial that discusses the events that took place in
1990 lends no support to the claim that a genocide had indeed been planned. Instead, it
shows that the JNA’s actions in 1990 were supported by the enti re SFRY Presidency,
including the transfer of military equipment from the Territorial Defense (“TO”) depots
to those controlled by the JNA. 549In the same section th e Applicant mentions the
decision of the Presidency that paramilitary units be disarmed, and it also notes that
charges for incitement to armed rebelli on were brought against the Croatian Defense
550
Minister, a former JNA General Špegelj. What the Applicant does not mention is that
Mr. Špegelj was caught in flagranti illegally importing weapons from abroad, and
551
organizing Croatian paramilitary forces and attacks on the JNA.
th
590. Further, the Applicant describes the 1990 ch anges to the organization of the JNA’s 5
Military District, which covered most of Croatia, and concludes that these were
552
intended to prepare the JNA for the role it was to assume from the summer of 1991.
Without entering into the ver acity of the Applicant’s allega tions in this part which are
not directly relevant for th e present case (and in relati on to which the Respondent
reserves its position), it suffices to note that these organizational changes, which
supposedly were preparations for the achievement of Serbian territorial objectives, were
made at the time when the commander of the 5 thMilitary District was General-Colonel
Konrad Kolšek, an ethnic Slovene. 553
549
550Memorial, para. 3.24 (“This decision was endorsed by the Presidency of the SFRY.”).
551Memorial, para. 3.29.
See Annex 36.
552Memorial, para. 3.27.
553See Memorial, para. 3.36.
200591. Moving to events in 1991, the Applicant claimsthat the JNA was by the end of July 1991
“completely controlled by the Prie dent of Serbia – Slobodan Miloše ćv–i in Belgrades(ic!)”.54
As will be demonstrated belo w, the Applicant’s claim is inaccurate, and the Applicant
misinterprets and at times manipulates eviden iceorder to support this erroneous claim.
592. The Applicant mentions that in March 1991 the JNA requested the SFRY Presidency to
555
proclaim a state of emergenc y and that this was refused. It should be noted that this
episode – the Presidency’s decision to refuse the JNA’s request and the JNA’s
compliance with this decision – clearly shows that the Presidency, despite political
infighting, was functioning and that it had control over the JNA.
593. The Applicant however tries to interpret this episode as showing that the JNA was already
at that time promoting a planfor a “Greater Serbia”. In thisregard, the Applicant quotes a
sentence from General Kadijevći’s book and interprets itin the following way:
“Having failed to obtain the declaration of a state of emergency the
JNA implemented a contingency plan for ‘the protection and defence
of the Serbian people out of Serb ia and the gathering of the JNA
within the borders of the future Yugoslavia’, implying that FRY in
statu nascendi would territorially correspond with the planned ‘Greater
Serbia’. This represented another step towards the JNA’s
transformation from its obligatio ns under the 19 74 Constitution,
towards its new role as a Serbian Army demonstrating its support for
the rebel Serbs in Croatia and servin g the cause of ‘Greater Serbia’.” 556
594. However, the Applicant’s quote from General Kadijevi ć’s book is incomplete and,
when read together with the preceding sentence and in its context, it conveys a rather
different meaning from the one suggested by the Applicant:
557
“The second option[ ] included that thearmy, with the support of political
forces in the Federation and in the Re publics representing those nations who
554Memorial, para. 3.40.
555Memorial, para. 3.32.
556Memorial, para. 3.32 (footnote omitted, underlined text in the Memorial).
557The “first option” was resignation of the JNA leadership or Kadijevi ć alone but this was abandoned, see V.
Kadijević, Moje vidjenje raspada (1993), pp. 113–114.
201 want to live in Yugoslavia, through a peaceful separation of those who
wanted to leave it, continues to secure such politics. Thisamong other things
means, practically translated into the then current situation, the protection
and defence of the Serb people outside of Serbia and the gathering of the
558
JNA inside the bor ders of the future Yugoslavia.”
595. The quoted text shows that in March 1991 th e JNA was not even contemplating a “new
role as a Serbian Army” as the Applicant claims. Instead it was ready to defend the
SFRY and was looking for support of “the Republics representing those nations who
want to live in Yugoslavia”, which included Macedonia and Bosnia and Herzegovina in
559
addition to Serbia and Montenegro. This also meant that the JNA would protect and
defend “the Serb people outside Serbia”, who were not only in favour of the SFRY, but
who were also perceived to be in danger from the advancing Croatian nationalism
whose proponents were in government in Croatia at the time.
596. The Applicant claims that “in application of this contingency plan” the JNA organized
the transfer of arms and ammunition to th e Serbian Democratic Party in Croatia. In
support of this claim, the Applicant provide s one letter from a former JNA Colonel,
written in 1994. 560However, the text of the letter clearly states that the alleged transfer
of arms and ammunition was done “illegally”, i.e. as a private act of the said individual
undertaken without orders from his JNA superiors. 561
597. As already noted, third party sources have described the ro le of the JNA in Croatia
during the spring and summer of 1991 as that of a peacekeeper who “conscientiously
tried to remain an unbiased federal force”. 562It was only after an all-out attack by the
Croatian forces on the JNA’s barracks and facilities in September 1991, that the JNA
began to take general military action against the Croatian government.
558Ibid., p. 114, reprinted in Memorial, Annexes, Vol. 5, Appendix 4.1 (emphasis added).
559At the time, Macedonia and Bosnia dnHerzegovina were still very much supporting the maintenance of a Yugoslav
State, and in the Summer of 1991 their leaders Gligorov and Izetbegovic proposed a plan which envisaged maintenance
of the SFRY as an “asymmetrical feretion”, see L. Silber & A. LT,he Death of Yugoslavia(1996) p. 148.
560See Memorial, para. 3.32, note 70. In addition to the tter, in note 70 the Applicant also refers to another
document which was apparently not submitted as an annex to the Memorial.
561
“I got in touch, illegally with the leaders of the SDS... At the end of April and the beginning of May I started
with the illegal arming of the Serbian people from then our warehouses...” Memorial, Annexes, Vol. 4, annex 65,
562162 (emphasis added).
Central Intelligence Agency (CIA),Balkan Battlegrounds: A Military History of the Yugoslav Confli–19959
(2002), Vol. I, p. 92 (Peace Palace Library);
202598. Further, the Applicant claims that the J NA’s tacit acceptance of the departure of
Slovenia from the SFRY in July 1991 mean t that the JNA “was abandoning its
commitment to maintain the unity of the SFRY and shifting its support to the ‘Greater
Serbian’ version of Yugoslavia.” 563 This is again a mere c onjecture about the motives
and policies of the JNA leadership for whic h the Applicant provides no concrete proof.
What is important for the purposes of the pr esent case, however, is that the record
shows that the JNA obeyed a political decisi on to withdraw from Slovenia adopted on
18 July 1991 by its commander-in-chief, the Presidency, and that this decision was
reached with the participation of all members of the Presidency. 564 This again shows
that neither the Presidency nor the JNA we re under the direct c ontrol of the Serbian
leadership, as the Applicant claims, and that they were functioning as the SFRY organs.
599. After mentioning the JNA’s withdrawal from Slovenia, the account of events given by
the Applicant then stresses the military pr eparations of the JNA units in and around
Croatia during the summer of 1991. 565 However, it should be not ed that, at that time, it
was clear that an all-out conflict might be imminent in Croatia, where the JNA was
subject to constant harassment and attacks. Thus, it seems prudent for a military force to
prepare for such contingency. This in no way casts doubt on the conclusion of the third-
party observers that the JNA acted in a neutral manner as a buffer between the two sides
to the conflict – Serbs in Croatia and the Croatian government’s forces.
600. The Memorial also makes allegations about changes in the JNA’s commanding staff in
June 1991, 566trying to show that, in this way, the JNA was brought under full control of
the Serbian leadership. In this regard, the Applicant concludes that “[t]he national
structure of the CO’s staff in the JNA in Slovenia and Croatia at this time [June 1991]
was absolutely weighted in favour of Serb officers who accounted for 57% of the officer
cadre, whereas the Croats made up just 12%.” However, this ratio between the Serb and
the Croat officers corresponds to the ratio that already existed during the peaceful
567
period between 1987 and 1990. Moreover, individual replacements mentioned by the
563
564Memorial, para. 3.34.
All members of the Presidenyere present at the session, which was chaired by Mćerim Croatia,the President
of the Presidency. The vote was 6 in favor (members from Kosovo, Macedonia, Montenegro, Serbia, Slovenia, and
Vojvodina) , 1 abstaining (member from Bosnia and Herona) and 1 against (member from Croatia), see Annex 25.
565Memorial, paras. 3.35 & 3.37-3.38.
566Memorial, para. 3.36.
567See Annex 30.
203 Applicant do not change the overall pict ure. Although two Slovene Generals were
replaced by Serbs as the commanders of the 5 thMilitary District covering Croatia, and
its Air Force Corps, respectively, this could not change much as far as the command and
control was concerned. The JNA conti nued to be under the command of its pro-
Yugoslav leadership, while the Air Force was commanded by ethni c Croats during the
568
whole of 1991. The Applicant therefore has failed to provide convincing evidence to
support its claim that there were substantial changes in the JNA’s command structure in
favor of the Serbs in June of 1991.
601. It is a fact that, in the c ourse of 1991, only Serbia and Mo ntenegro remained firm in
their support for the SFRY, while Macedonia and Bosnia and Herzegovina gradually
shifted their position towards independen ce, Croatia and Slovenia having already
declared their independence. In such a s ituation, the JNA and the Serbian leadership
found themselves in a political alliance, but their relationship was the one of distrust and
uneasiness. This is particularly well illustrated by the following excerpt from the diary
of Mr. Jović, the member of the SFRY Presidency from Serbia, that was recorded on 25
October 1991:
“I will also record an observation from the last , not so short period of
our drama, about a latent distru st and almost conflict between
Slobodan Miloševi ć and the military, in par ticular, General Kadijevi ć.
Their conflict and distrust are less fe lt at the meetings attended by all
569
of us (six), and much more when one of them is alone – with me.”
602. This clearly shows how precarious the relationship between the military and the Serbian
leadership was. Mr. Jovi ć’s recollections about his political discu ssions with General
Kadijević and the President of Serbia, quoted by the Applicant, reveal that these
individuals were at most un easy political allies, but they do not demonstrate that the
570
Serbian leadership had complete control over the JNA. As already noted during the
Preliminary Objections proceedings, these conversations also show that the Serbian
leadership had to ask the generals “to give us a preci se answer on whether they will
568Ibid.
569B. Jović, Poslednji dani SFRJ, izvodi iz dnevnika, p. 402 (Annex 29)
570See Memorial, para. 3.34.
204 571
conduct a redeployment of the military”. If the JNA were under full control of the
Serbian leadership, the latter would certainly not have to ask the generals about their
plans and to wait for an answer from them.
603. Finally, it should also be noted that the Applicant itself is not clear as to when the
Serbian leadership allegedly assumed control over the JNA. In paragraph 3.02, for
example, it claims first that “[i]n mid- 1991... the Serbian leadership... took over control
of the JNA”, but in the very next sentence implies that this occurred earlier by stating
572
that “[f]rom spring 1991 onw ards the JNA operated as a de facto ‘Serbian Army’.”
Later on, however, the Applicant claims that it was by the end of July 1991 that the
573
activities of the JNA “were completely controlled by the President of Serbia”, but in
the next paragraph states that “[w]ith the final collapse of the SFRY Presidency in
574
October 1991, the Serbian leadership obtained full control of the JNA.”
604. It is submitted that the JNA was a de jure organ of the SFRY and operated as such. It
was under political di rection of another de jure organ of the SFRY, the Presidency,
575
which was recognized as such until early 1992.
D. Conclusion
605. The Applicant misleadingly uses terminology employed in the context of State
responsibility (“de facto organs”) to suggest that the FRY or Serbia s hould be held
responsible for the conduct ofde jure organs of the SFRY during the latter’s existence due
to the fact that the Serbian leadership allegedly controlled their acts. It is clear, however,
that responsibility forthe conduct ofthe SFRY organs cannot be esta blished on that basis. It
has already been demonstrated that the Applicant’s account of the working of the SFRY
Presidency is misleading and inaccurate and fa ils to appreciate the fa ct that this organ
576
functioned as ade jureorgan of the existingSFRY in 1991 and early 1992.
571Quoted in ibid..
572Memorial, para. 3.02.
573Memorial, paras. 3.39-3.40. The Applicant’s claim that Mr. Milošević completely controlled the JNA by the
end of July 1991 is supported by the transcript of a conversation between Mr. Miloševi ć and Mr. Karadžić which
took place on 20 December 1991 and dealt with current ev ents without containing any reference to the events
574t took place in summer of 1991.
575Memorial, para. 3.41.
576See Annexes 24, 25, 26 and 27.
Ibid.
205606. It has been demonstrated that the Applicant has failed to provide evidentiary support for
its contentions that the JNA was transformed into a Serbian army under complete
control of the Serbian lead ership in 1991. There is no s upport in the evidence for the
claim that there was a “Serbianisation” of the JNA officer corps, or that the
reorganization of the JNA was made for the same purpose, and, finally, that the Serbian
leadership exercised complete or “full” control over the JNA. It has also been
demonstrated that neither the Presidency of the SFRY nor the JNA were de facto organs
of the Serbian leadership, as the Applicant erroneously contends.
4. The Armed Forces of the Serb Autonomous Regions in Croatia/RSK
607. As already noted, the Memorial deliberately confuses all groups and formations, other
than the JNA, that were fighting against the Croatian Government during the conflict of
1991–1995, by labeling them simply as “param ilitary groups”. The purpose of this
deliberate confusion is to try to connect all these groups to the JNA and ultimately the
577
FRY.
608. The confusing use of the term “paramilitary gr oups” in the Memorial leads to a failure
to distinguish between the allegations and evidence related to the armed forces of the
Serb autonomous regions in Croatia and the RSK, and the evidence related to volunteers
and paramilitaries. The present section will deal with the armed forces of the Serb
autonomous regions in Croatia and the RSK an d it will demonstrate that they must be
distinguished from the JNA, volunteers a nd volunteer units. The next section will
discuss volunteers and volunteer units.
A. The Armed Forces in the Serb Autonomous Regions
609. The local TO and MUP units or parts thereof on the territory of municipalities in
Croatia with a majority or a substantial minority of Serbs started to operate as TO and
MUP units of the emerging Serb regions in Croatia, with the spreading of the conflict in
Croatia in 1991.
577
Memorial, para. 3.49.
206610. As already mentioned, 578 the SAO Krajina was proclaimed on 21 December 1990,
following which, on 4 January 1991, it establishe d its own Secretariat of the Internal
Affairs (MUP Krajina) dealing with police and state security affairs. The MUP Krajina
operated independently, outside the control of the Croatian MUP. Starting from March
1991, the MUP Krajina was involved in armed clashes with the Croatian Government
forces.579
611. On 29 May 1991, the Assembly of Krajina established “special purpose units”
(“Milicija Krajine”) within the MUP Krajina, whic h were however under the authority
of the Ministry of Defense of the SAO Krajina. 580 Milicija Krajine had inter alia the
task to defend the territorial integrity of the SAO Krajina and to secure vital objects and
regional institutions. 581The members of the Milicija Krajine wore distinctive force
signs.582
612. On 1 August 1991, the Government of the SAO Krajina proclaimed Milicija Krajine
and the Territorial Defense (“TO”) forces of Krajina (formerly part of the TO forces of
Croatia) to be “armed forces” of the SAO Krajina. These armed forces were under the
command of the president of the government of the SAO Krajina, who was also the
commander of the TO forces. 583
613. When the JNA started to fight the Croatian government for ces, it cooperated with the
TO Krajina and the MUP Krajina. The TO a nd the MUP units could be subordinated to
the JNA, but this required a prior a pproval of the relevant TO commander 584or the
Minister of Interior of the SAO Krajina, respectively. 585
578See supra Chapter V, paras. 473–482.
579See supra Chapter V, para. 491.
580See Гласник Крајине [Gazette of Krajina], no. 4/1991, p. 188 (Annex 16).
581Ibid.
582ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 135.
583
584See supra Chapter V, para. 494.
See ICTY, Martić, IT-95-11, testimony of Radoslav Maksi ć, the former Chief of TO Staff of the SAO
Krajina, on 6 February 2006, Transcript pp. 1162-1163:
Q. I have one specific question about this document. And it?
A. Yes.
Q. This is in relation to assignment of TO units to milita ry operation, their assignment to the respective military
units. What would be the right procedure if a command of a military unit wanted to use a TO unit?
A. The unit would ask the commander to resubordinate th e given TO unit and once it is resubordinated to that
particular person, he will then issue orders and tasks tothe TO unit, because all TO units can be resubordinated to a
different commander, but not the command itself. All of itsunits can be resubordinated. If you look at what it says
here, the 1st joint TO detachment and all the other unitst,hey have all been resubordinated but not the staff.
207614. Local TO units were also established and operating in two other Serbian autonomous
regions on the territory of Croatia, viz. the Serbian Region of Slavonia, Baranja and
Western Sirmium and the SAO Western Slavonia. As in the SAO Krajina, most of these
TO local units originatedde factofrom the former TOunits of the TO Croatia that existed
in these regions, as a way of organizing the Serb population. On 10 October 1991, the
Great Assembly of the Serbian Region of Slavonia, Baranja and Western Sirmium
decided to attach the regional TO to the armed forces of the SFRY, i.e. the JNA. 586
However, there is evidence that it was not before the end of October 1991 that the local
TO units in this region were subordinatedto the JNA in the operation of Vukovar. 587The
local TO units also operated on theterritory of the SAO Western Slavonia. 588
615. In conclusion, the TO and MUP units in the Sre b autonomous regions inCroatia were under
the command and control of the local Serb autho iet, or the regional auhtorities such as those
of the SAO Krajina and of the Serbian Regionof Slavonia, Baranjaand Western Sirmium.
Evidence shows that these units fought eithero ale or in coordination with the JNA once the
JNA started to fight the Croatiangovernment forces. They couldalso be subordinated to the
JNA, but only on the basis of a decision o tfe local authorities or TO commanders.
B. The Serb Army of Krajina (“SVK”)
616. As already mentioned, the SAO Krajina was transformed into the RSK on 19 December
1991. Subsequently, on 26 Febr uary 1992, the RSK was join ed by the SAO Western
Slavonia and the Serbian Regions of Slavonia, Baranja and Western Sirmium. The RSK
exercised de facto control over substantial territory and had an independent government
589
with organized armed forces under its control.
Q. Mr. Maksic, you said the unit would ask the commander. Which commander?
A. Of these units. I don't know who this document was intended for. It says delivered but delivered to whom?
Which area of responsibility is this? And why is this being delivered?
Q. Mr. Maksic – Mr. Maksic, you meant the unit would ask the respective TO commander?
A. Yes.
Q. Thank you.”
585ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 142.
586Одлука о припајању територијалне одбране Српске Облаасти Славонија, Барања и Западни Срем
оружаним снагама СФРЈ, Службени гласник Српске области Славонија, Барања и Западни Срем [Official
587ette of the Serbian Region of Slavonia, Baranja and Western Sirmium], no. 1/1991, p. 20.
JNA, Operation Group South Command, Decision for Continuation of Assault Operation Vukovar, no. 235-1,
588October 1991 (Annex 31).
This is confirmed by the Applicant in the Memorialat para. 3.85, but at the same time accompanied with
allegations of their genocidal activities which are denied.
589See supra Chapter V, para. 494.
208617. The armed forces of the RSK consisted of its territorial defense (“TO”). 590 According to
Article 78, paragraph 1(5) of the RSK Constitution, the President of the RSK
“commands the armed fo rces in peace and wa r and [commands] the
people’s resistance in war; orders general and partial mobilisation;
591
organizes preparations for defe nce in accordance with law”.
618. On 18 May 1992, an amendment to the RSK Constitution established the Serb Army of
592
Krajina (“SVK”). The SVK comprised TO units, while in the event of the imminent
593
threat of war and during wartime special police units would join the SVK.
619. With the arrival of UNPROFOR, a number of members of the RSK TO were transferred
to police units. While the Secretary-Genera l in his report of 28 September 1992 stated
that UNPROFOR considered this a violati on of the Vance Plan, the RSK authorities
argued that it was necessary for the protec tion of the population from possible Croatian
attacks.594 In this regard, it should be noted that the Croatian forces had in April and
June 1992 grossly violated the cease-fire. 595 Nevertheless, the situation apparently had
been stabilizing until 22 January 1993 when Croatia attacked Maslenica and other
locations in the southern part of Sector South and the adjacent “pink zones”. The
Croatian offensive resulted in the deaths of two UNPROFOR soldiers and injuries to
596 597
four others, and the death of hundreds on the Serbian side. Croatia’s forces never
retreated to previously held lines after a ny of these attacks, despite calls to do so
598
emanating from the Security Council.
590
591Constitution of the RSK, Article 102 (Annex 19).
592Ibid., Article. 78, para 1(5).
Amendment VIII of 18 May 1992, Службени гласник РСК [Official Gazette of the RSK], no. 9/1992,
available at http://www.hic.hr/ratni-zlocini/sluzbeni%20glasnici/1992%20godina/Sg_92… (Annex 20).
593See amendments to the RSK Law on Defense, Article 1, Службени гласник РСК [Official Gazette of the
RSK], no. 9/1992, available at
http://www.hic.hr/ratni-zlocini/sluzbeni%20glasnici/1992%20godina/Sg_92….
594
See Further Report of the Secretary-General Pursuant to Security Council Resolution 743 (1992) and 762
59592), 28 September 1992, UN Doc. S/24600, paras. 4 & 7.
See Further Report of the Secretary-General Pursuant to Security Council Resolution 752 (1992), 26 June
1992, UN Doc. S/24188, para. 7; see, also, Security Council resolution 762 (1992), para. 3.
596See Further Report of the Secretary-General Pursuant to Security Council Resolution 743 (1992), 10 February
1993, UN Doc. S/25264, paras. 13–14.
597For more see Chapter XII, paras.1123-1129.
598
Security Council resolution 762 (1992), para. 3 and resolution 802 (1993), para. 1.
209620. The amendments to the RSK Constitution adopted on 20 April 1993 introduced further
changes to the SVK structure. They intr oduced a Supreme Defense Council, which was
composed of the President, Prime Minister, Minister of Defense, and the Minister of the
599
Interior of the RSK, as well as of the Commander of the SVK. The commander of the
SVK was appointed by the Assembly on the proposal of the Supreme Defense
600
Council. The SVK was led by the president of the RSK on the basis of the RSK
601
Constitution and decisions taken by the Supreme Defense Council.
C. Control over the Armed Forces of the Serb Autonomous Regions and the RSK
602
621. The Applicant is unc lear as to whether the JNA “supported”, “coordinated their activities
603 604
with” or “controlled” TO Krajina and the SVK. The Applicant also contends that the
605
TO Krajina was in Sepe tmber 1991 “formally inco rporated” into the JNA.
622. However, as is clear from the preceding discussion, TO Krajina and later the SVK were
under the control of th e SAO Krajina and the RSK leader ship, as the case may be, and
not under the control of the JNA or the SFRY or, later on, the FRY. The evidence
adduced by the Applicant does not change this conclusion.
623. Further, it should be noted that the Applicant is deliberately mixing evidence relating to
the SFRY and the JNA with evidence related to the FRY and its army, in an attempt to
extend the FRY’s liability to th e events that took place be fore its creation. As already
discussed, the FRY cannot be held res ponsible for the acts of the SFRY organs,
606
including the JNA. Nevertheless, for the sake of completeness, the Respondent will,
in addition to the evidence that concerns the FRY, also discuss evidence adduced by the
Applicant as a proof of the JNA’s and SFRY’s alleged control over the TO Krajina, and
will demonstrate that said evidence is insufficient to support the Applicant’s claims.
599
Amendment XIV of 20 April 1993, Службени гласник РСК [Official Gazette of the RSK], no. 2/1993,
available at http://www.hic.hr/ratni-zlocini/sluzbeni%20glasnici/1993%20godina/Sg_93….
600Amendment XII of 20 April 1993, Службени гласник РСК [Official Gazette of the RSK], no. 2/1993,
available at http://www.hic.hr/ratni-zlocini/sluzbeni%20glasnici/1993%20godina/Sg_93….
601See Amendment XIII of 20 April 1993, Службени гласник РСК [Official Gazette of the RSK], no. 2/1993,
available at http://www.hic.hr/ratni-zlocini/sluzbeni%20glasnici/1993%20godina/Sg_93….
602Memorial, para. 3.54.
603
604Memorial, para. 3.55.
605Memorial, para. 356.
606Memorial, para. 3.81.
See supra Chapter IV.
210624. In support of its claim that TO Krajina was “formally incorporated into the JNA”, the
Applicant cites an order of the presid ent of the SAO Krajina government on the
appointment of the commander of the TO Krajina, 607 which in fact refutes the
Applicant’s claim, as it rather shows that it was the SAO Krajina authorities that
appointed commanding officers of the TO Krajina, which clearly demonstrates that the
latter were subordinated to the SAO Krajina authorities.
625. The evidence adduced by the Applicant with re spect to the issue of control over the TO
Krajina and the SVK includes an exchange of military information between the
608
authorities in Knin and Belgrade which does not prove cont rol. Moreover, the SVK
report cited in support of this claim has not been translated in its entirety by the
Applicant, probably because the omitted pa rts clearly show that the SVK and the
Yugoslav Army were two separate military forc es and because, in particular, the report
refers to a very small number of Yugoslav Army officers who volunteered to work in
the SVK. 609
626. The Applicant has adduced fu rther evidence to support the claim of “control” over the
TO Krajina and the SVK in the form of various communica tions between the
Krajina/RSK and the Serbian leadership. Ag ain, communications between political and
military leaders are not unusual and cannot as such prove “control” of one ally over
another. Moreover, the content of the docum ents adduced by the Applicant provides no
evidence of such control:
- a (likely) intercepted conversation between the RSK leaders Hadžić
and Martić, only refers to a forthcoming meeting with President
Milošević; this “intercept” is, in any case, inadmissible as evidence
610
because there is no indication of its source;
- the letter sent to President Miloševi ć by RSK President Hadži ć
shows that Mr. Hadži ć was asking for Miloševi ć’s support in
obtaining military assistance from the FRY; 611
607See Memorial, para. 3.81, note 190, referring to Annexes, Vol. 4, annex 101.
608See Memorial, para. 3.56, note 134, referring to Annexes, Vol. 4, annex 67.
609See the original of the document reproduced in annex 67 to the Memorial.
610See Memorial, para. 3.57, note 136, referring to Annexes, Vol. 4, annex 68.
611Ibid., referring to Annexes, Vol. 4, annex 69.
211 - the “order” “summoning” RSK Minister of the Interior, Mr. Martić,
to a meeting of the SFRY Pres idency, in reality was only a
communication (“obaveštenje”) inform ing that the SFRY Presidency
session would take place and including an invitation to participate in
612
this meeting – the said session concerned the effort of the SFRY
613
leadership to convince the RSK leaders to accept the Vance Plan;
- a note from the meeting between the Serbian President Miloševi ć
and the RSK leadership concerning financial assistance only shows
that Mr. Miloševi ć agreed with the latter’s concept of the RSK
614
army that was to be financially supported by Serbia;
- a RSK Assembly resolution of18 August 1994 proposing integration
of Serbia, Montenegro, the Republic of Srpska and the Republic of
615
Srpska Krajina into one State, which is a political document
without any practical consequen ces; moreover, this document is
misleadingly cited by the Applicantas evidence of “Serbian political
support” when it is clear thatit emanated from the RSK.
627. The Applicant also claims that the JNA provided weapons to TO units of Croatian Serbs
from as early as 1990s, 616 but fails to provide evidence for this. Additi onal evidence
adduced by the Applicant in this regard, viz. witness statement of one Novak Višeković,
is inadmissible as the Applicant has not even supplied the text of the statement. 617
628. Most of the evidence presented by the Applicant relates to the provision of arms in 1992
618
and late 1991. This evidence (if it is authentic) must be situated in its proper context –
the planned withdrawal of the JNA from Croatia pursuant to the Vance plan, which
necessitated leaving behind obsolete military equipment, as is clear from the documents
619
provided by the Applicant. In any case, it should be no ted that the provision of
military equipment does not amount to proof of control.
612
See Memorial, para. 3.57, note 137, referring to Annexes, Vol. 4, annex 70 and the original document
reproduced in annex 70.
613See supra Chapter V, para. 564.
614See Memorial, para. 3.57, note 138, referring to Annexes, Vol. 4, annex 71.
615See Memorial, para. 3.57, note 139, referring to Annexes, Vol. 5, annex 72.
616Memorial, para. 3.59-3.60.
617
618See Memorial, para. 3.60, note 145.
See Memorial, paras. 3.59-3.60, referring to Annexes, Vol. 4, annexes 75-77. It should be noted that annex 77
619s not refer to arms or to transfer of military equipment from the JNA, Serbia or the SFRY to the TO Krajina. .
See Memorial, Annexes, Vol. 4, annex 90.
212629. The Applicant also provides evidence about financial aid that was extended to the RSK
by the authorities of the SFRY or the FRY. 620 However, the fact that such financial aid
was provided to the RSK does not of itself prov e control. On the contrary, the evidence
provided by the Applicant (to th e extent that it is considered authentic) demonstrates
that the RSK was clearly separate from both the SFRY and the FRY.
630. Further evidence provided by the Applicant relates to the assist ance given by the
Yugoslav Federal Ministry of Defense in the restructuring of TO Krajina at the time of
implementation of the Vance plan in spring 1992. 621 It is also related to the withdrawal
of the Yugoslav Army from Croatia, whic h had been recognized as an independent
State, to the territory of the FRY in May 1992. 622 What this evidence indicates is that
the SFRY supported the re-organ ization of the TO Krajina. Moreover, it should be
noted that the evidence referred to is less abundant than may appear from the references
in the Memorial, as different annexes contain identical documents. 623
631. Further, the fact that the Yugoslav army members who originated from the RSK or
volunteers would serve in the SVK does not sh ow the FRY’s control over the SVK, as
claimed by the Applicant. 624While in the service of the SVK, these individuals were
subordinated to the authorities of the RSK and not the FRY, and they acted on behalf of
the RSK. For example, they could not leave their posts in the SVK without the consent
of the RSK authorities, as is clear from the evidence provided in the Memorial itself. 625
This is further evidenced by the fact that their appointments and promotions had been
made by the authorities of the RSK, while promotions were only subsequently
confirmed by the Yugoslav army. 626
620See Memorial, paras. 3.61–3.62. & 3.99.
621See Memorial, paras. 3.66–3.67, notes 157–158, referring to Annexes, Vol. 4, annexes 87–89 & Memorial,
para. 3.92, notes 208–211, referring to Annexes, vol. 4, annexes 109–111; para. 3.93, notes 212–213, referring to
622exes, vol. 4, annexes 88 & 112.
623See Memorial, para. 3.67, note 160.
In this regard, it should be noted that annex 109 merely contains an information that the forming of the TO
units, border units and the police brigades is at a final stage and not that this was done by the JNA. Further,
annex 111 contains the same document as annex 87, while annex 112 contains the same document as annex 89,
see Memorial, Annexes, vol. 4, annexes 87, 88 &109–112.
624See Memorial, paras 3.67–3.68 & 3.97.
625
626See Memorial, para. 3.97, note 223, referring to Annexes, vol. 4, annex 116.
See documents presented in Memorial, Annexes, Vol. 4, annexes 128–131, referred to in the Memorial, para.
3.68, notes 164–165.
213632. In this regard, it should be noted that part of the evidence adduced by the Applicant is
misleading as it in fact relates to the transfer of officers from one JNA unit to another in
January 1992, at the time when the JNA was present in Croatia, and the SFRY was still
627
in existence. Other evidence relates to techni cal assistance given by the Yugoslav
Army in accepting the SVK conscripts pres ent on the territory of the FRY until their
628
sending to the RSK. This, of course, is not evid ence of “the deployment of
conscripted soldiers from the FRY to the occupied territory of Croatia”, as the
Memorial inaccurately claims.
633. The Applicant also presents evidence relate d to the payment of salaries of the active
military personnel in the SVK by the FRY. 629This, in itself, is neither evidence of
control nor proof that these officers were organs of the FRY. 630 The presentation of
evidence by the Applicant is particularly mi sleading when the claim that “[s]oldiers of
the JNA and then the Yugoslav Army who were seconded or transferred to active
service in occupied Croatia … continued to benefit from the se rvice conditions and
status applicable in the FRY” is supporte d by evidence emanating from as early as 24
631
November 1991, when the FRY did not yet exist.
D. Conclusion
634. The Serb regions in Croatia had their ow n TO and MUP forces. These forces were
under the command and control of the local or regional Serb authorities, such as in the
case of the SAO Krajina. These forces coope rated with the JNA, once the JNA started
fighting the Croatian government forces. Th ey could be subordinated to the JNA but
only on the basis of a decision of the local authorities or TO commanders.
627See Memorial, para. 3.68, note 162 referring to Annexes, Vol. 4, annex 94, containing document dated 24
January 1992.
628See Memorial, para. 3.68, note 163 referring to Annexes, Vol. 4, annex 95.
629
Memorial, para. 3.69, note 167, referring to Annexes, Vol. 4, annex 140 & para. 3.97, note 222, referring to
630exes, Vol. 4, annex 115.
See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List
No. 91, para. 388.
631See Memorial, para. 3.70, notes 168 & 169 referring to Annexes, Vol. 4, annexes 96-97; see, also, Memorial,
para. 3.97.
214635. After the creation of the RSK, all TO forces were unified in the SVK, which was led by
the President of the RSK. Command over the SVK and its organization was governed
by the Constitution of the RSK.
636. Both the TO Krajina, and later the SVK, were under the control of the SAO Krajina and the
RSK authorities, as the case may be. The A pplicant makes different claims as to the
relationship between the TO Krja ina and the SVK, on the one hn ad, and the authorties in the
SFRY or the FRY, on the other, and in particulairt claims that the former were “controlled”
by the latter. As has been demonstrated above , these claims are not supported by evidence.
Indeed, some of the evidence presented by the Applicant shows a clear separation between
the TO Krajina/SVK, on the one side, and the S RFY and later the FRY, on the other. Finally,
632
and in any event, the FRY cannot be helrd esponsible for the acts of the SFRY organs.
5. Volunteers and Volunteer Units
637. As mentioned above, the Memorial deliberately confuses volunteers and volunteer units
with the forces of the Serb regions in Croatia/RSK and uses the term “paramilitaries” to
refer to all of these different groups. This section will deal with the allegations made in
the Memorial concerning volunteers and volunteer units. It will be demonstrated that (a)
evidence about volunteers and volunteer un its provided by the Memorial is mostly
inadmissible, insufficient or inaccurate; and (b) the fact that certain volunteers were part
of the JNA must be established in each specific case.
A. Sources
638. In its discussion of the volunteer units inroatia between 1990-1997, the Memorial primarily
relies on two sources. The first source is a li st and information concerning “32 different
volunteer paramilitary units” which is supplied by “Croatian intelligence sources”. 633No
further information about the “Croatian intelligceensources” is provided ithe Memorial. It is
submitted that this evidence is inadmissibleebause it does not provide the slightest indication
of its origin, much less the name of the Croatin government agency that produced it. Thus,
all claims supported by this evidence, in partiular the allegations concerning “32 different
volunteer paramilitary units”, are unproven.
632
633See supra Chapter III.
See Memorial, para. 3.47 and plate 12, and Memorial, Annexes, Vol. 3, plate 6.7.
215639. The second source re lied upon by the Applic ant is the Final Report of the United
Nations Commission of Experts established pursuant to Security Council resolution
634
780 (1992), specifically its annex dealing wi th special forces. Before discussing the
evidentiary value of the UN Commission of Experts’ report in the present
proceedings, it shou ld be noted that refere nces to the repo rt made in the Memorial are
so insufficient that they re nder impossible any meaningful analysis of the related
claims made by the Ap plicant. The reason is that the Memorial makes references to
the whole annex of the UN Commission of Experts’ re port dealing with special forces,
without specifying relevant pages or paragraphs. 635Such references are simply
meaningless, considering that this annex is 251 pages long 636 and that it deals not only
with Serb paramilitarie s but also with Croatian and Bo sniac ones. Therefore, it is
submitted that the Applicant should provide more specific references to the UN
Commission of Experts’ report if it intends to use this report as a source of evidence
in the present proceedings.
640. It is also submitted that the Experts’ re port, including the relevant annex, does not
provide evidence that would meet the high st andard of proof required in the present
proceedings. This was also the position of the Serbian government in the proceedings in
637
the Bosnia case. The charges of exceptional gravit y, such as genocide, must be
638
proved by evidence that is “fully conclusive”. However, according to the Experts’
report, the Commission of Experts “was not able to verify much of the information that
639
it received”. Moreover, “[i]t was not the Commi ssion’s intention or part of its
640
responsibility to prepare cases for criminal prosecution...” With this in mind, it is
submitted that the UN Commission of Experts’ report cannot be considered as a reliable
source of evidence in the present proceed ings, unless its alle gations have been
confirmed in criminal proceedings before the ICTY.
634See Memorial, para. 3.48, note 109, referring to UN Doc. S/1994/674/Add.2 (vol. I), Annex IIIA, Special
Forces.
635See Memorial, Chapter 3, notes 109-114, 119, 127, 133, and accompanying claims.
636See UN Doc. S/1994/674/Add.2 (Vol. I), Annex Summaries and Conclusions, p. 11, para. 49.
637
See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
638ocide (Bosnia and Herzegovina v. Serbia and Montenegro), CR 2006/12, p. 28, para. 25 et seq. (Obradović).
See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List
No. 91, para. 209.
639UN Doc. S/1994/674/Add.2 (Vol. I), Annex Summaries and Conclusions, p. 13, para. 58.
640UN Doc. S/1994/674/Add.2 (Vol. I), Introduction to Annexes, para. 11.
216B. The Applicant’s Overview of the Principal Paramilitary Groups
641. As already noted, the Appli cant’s overview of the princi pal paramilitary volunteer
groups begins with the claim that there were 32 such groups, which relies on
unidentified Croatian intelligence sources and therefore should be considered as
unsubstantiated. Further, the Memorial deals in detail with the volunteer units organized
641
by two individuals: Vojislav Šešelj and Željko Ražnatović a.k.a. “Arkan”.
642. As far as Mr. Šešelj is con cerned, the Applicant claims that his activities (“organizing
volunteers to support the Serbian rebels in Knin”) by the summer of 1991 “enjoyed
official approval from Serbia.” This clai m is supported by a re ference to a book which,
in turn, contains a reference to Mr. Šešelj’s interview given in 1994. 642 Indeed, other
claims related to Mr. Šešelj’s paramilitary group are also supported by the reference to
643 644
the same source, or to other public statements made by Mr. Šešelj.
643. First, it should be noted that all these clai ms relate to the period before 1992, i.e. when
the FRY was not in existence. Second, the evidence given in support of them are public
statements of Mr. Šešelj, who has a record of retracting his statements. This is
evidenced by his testimony at the Milošević trial before the ICTY in 2005:
“Q: Mr.Šešelj, in the course of that answer to Laura Silber on The
Death of Yugoslavia tape, you sa id that you were getting weapons
from Miloševi ć’s police, from the then Mini ster of Internal Affairs,
Radmilo Bogdanovic, and then from his successor. True or false?
A: This entire interview, which lasted about one hour, is one I published in
one of my books. And you could have found that to o. So I’m not challenging
the fact that I gave this interview, however, for reasons of political propaganda,
I threw Mr.Miloševć i and Radmilo Bogdanovic into the entire story, wanting
to annoy them and to cause on their part an improper political reaction.”645
641
642Memorial, paras. 3.51–3.53.
See Memorial, para. 3.51, note 116 referring to R. Thompson [Thomas], Serbia under Milosevic, pp. 96–97,
which in footnote 11 refers to the book Guja u Nedrima – Vojislav Šešelj inteviewed by Mirjana Bobi ć
Mojsilović (1994), pp. 76–77.
643See Memorial, para. 3.51, notes 121–122.
644Ibid., notes. 118–122.
645ICTY, Milošević, IT-02-54, testimony of Vojislav Šešelj, 7 September 2005, Transcript p. 11917.
217644. As already noted by the co-agent of Serbia at the 2006 hearings in the Bosnia case,
"The whole [ICTY] testimony of Vojislav Šešelj, which lasted for several
weeks during the months of August and September 2005, is full of denial
of his previous statements in which he had implicated Slobodan Milošević
and the State security service of the Serbian police in arming and support
of his units. Of course, it is quite possible that Mr.Šešelj lied during his
testimony before the ICTY. But then again, it is possible that he lied when
he gave those previous interviews. Wedo not intend to claim that the truth
is one way or the other; we just want to demonstrate that such serious
issues as State responsibility cannot be determined from statements of a
former politician, indicted by th e ICTY, who often changed those
646
statements according to what he thought opportune.”
645. It must be stressed that the evidence in the Memorial about Mr. Šešelj’s paramilitary
units and their links with the Serbian authorities comes from Mr. Šešelj himself.
Considering his record of retracting public statements and apparently changing them in
accordance with his needs, it is submitted that these statements should not be treated as
reliable evidence. Finally, it should be noted th at Mr. Šešelj is currently on trial before
the ICTY. With respect to Croatia, his indi ctment contains charge s related solely to
events in Vukovar in November 1991. 647
646. Concerning the activities of Mr. Željko Ražnjatovi ć a.k.a. “Arkan”, the Respondent
accepts that Arkan and his paramilitary group participated in armed conflicts on the
territory of the former Yugoslavia. Howeve r, the Applicant’s cl aim that there is
“overwhelming evidence of Arkan’s ties with the Governments of Serbia and the FRY”
is wholly unsubstantiated as it contains no source whatsoever for this “overwhelming
evidence”. 648 Also, the claim that “Serbia’s Defe nce Minister... stated that Arkan was
646
ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
647ocide (Bosnia and Herzegovina v. Serbia and Montenegro), CR 2006/40, p. 28, para. 86 (Cvetković).
ICTY, Šešelj, IT-03-67, Third Amended Indictment , 7 December 2007, available at
http://www.icty.org/x/cases/seselj/ind/en/seslj3rdind071207e.pdf. The initial indictment against Mr. Šešelj dated
15 January 2003 also charged him for crimes commi tted in certain other places in Croatia (see
http://www.icty.org/x/cases/seselj/ind/en/ses-ii030115e.pdft these charges were subsequently left out.
648See Memorial, para. 3.52, note 126 and accompanying te xt. The note simply states that “[t]his is supported
both by Šešelj and by Dragoslav Bokan, the leader of the ‘White Eagles’” – without identifying any source for
this claim.
218 protected by Interior Minist ry officials” is supported by a reference to the UN
Commission of Experts report without indica ting the relevant page in this 250-page
long document, which in any case contains a considerable am ount of unverified
information. What is then left as evidence of Arkan’s connections with the then Serbian
authorities is one photograph taken at a funeral in 1997, long after the conflict in
649
Croatia was over. The photograph shows the former Serbian President Miloševi ć,
with Arkan standing behind him in a larg e group of people. Needless to say, this
photograph cannot support the Applicant’s claim.
647. As far as Arkan’s activities on the territory of Croatia are concerned, it should be noted
that, before he died in 2 000, Arkan was indicted by the IC TY Prosecutor, but not in
650
connection with the events that took place in Croatia.
C. The Issue of Control over Volunteers and Volunteer Groups
648. The Applicant claims that members of volunt eer paramilitary groups were integrated
into the JNA by an order of the Federal Secretariat for National Defense of the SFRY
dated 13 September 1991. According to the A pplicant, this order is “of singular
importance in establishing the ‘effective co ntrol’ of the Serb-controlled JNA over
Serbian paramilitary forces.” 651
649. However, according to the order of 13 September 1991, volunteers were individually
integrated into the JNA and had to file an individual application (the relevant form was
appended to the order). 652This is conceded by the Applicant. 653 The volunteers that
applied would be accepted to the JNA upon a decision of an appropriate military officer
and would be assigned to a JNA unit. 654 Such volunteers would be equal to other JNA
655
members.
649See Memorial, plate 13.
65See ICTY, Željko Ražnjatović – “Arkan”, IT-97-27, Indictment.
651
652See Memorial, para. 3.80; see, also, paras. 3.63-3.64.
653See Memorial, Annexes, Vol. 4, annex 73, article 2.
654Memorial, para. 3.80 (“[e]very volunteer had to submit an admission form”).
Memorial, Annexes, Vol. 4, annex 73, paras. 3 & 11.
655Ibid., para. 10.
219650. This means that for each volunteer that was in tegrated into the JNA there would be an
individual decision to that effect. The Applicant broadly claims that “the JNA
incorporated into its fold various Serb ian paramilitary groups” by the order of 13
September 1991. 656 However, rather than making such broad, sweeping claims, the
Applicant must identify specific instances in which volunteers were incorporated into
the JNA and then demonstrate that it was indeed these volunteers that committed the
alleged violations.
651. Alternatively, the Applicant will have to provide other evidence showing that certain
657
volunteer paramilitary groups were acting under the effective control of the JNA. In
this context, it is worth noting that the J NA indeed did not have volunteer paramilitary
groups under its control, as is clear from the fact that as late as 10 December 1991,
General Kadijević was still issuing instructions th at volunteer units either accept the
658
JNA command or be disarmed and removed from the battlefield.
652. However, and as already discussed, all this would only be relevant if the FRY could be
held responsible for the acts of the SFRY organs (quod non). 659
6. Conclusion
653. On the basis of the foregoing discussion, it may be concluded that:
(a) The Applicant’s claim that the JNA had been transformed into a
“Serbian army” starting from the mid-1980s does not withstand
scrutiny, as the JNA’s ethnic st ructure remain unchanged during
the 1980s and up to 1991, and its re structuring in 1988 was agreed
upon by all the SFRY republics;
(b) The JNA was not under the contro l of the Serbian leadership in
1990 and 1991; it acted as de jure organ of the SFRY and operated
as such, under political direction of the SFRY Presidency;
656
657Memorial, para. 3.80.
For example, Applicant provides evidence showing th at members of Arkan’s “Tigers” were expressly
permitted to “participate in combat at JNA and TO positions in the Petrinja municipality” in Croatia, and were
subordinated to the commanding JNA officer, see Memorial, para. 3.65, referring to Annexes, Vol. 4, annex 82.
658See Memorial, Annexes, Vol. 4, annex 74, para. 6.
659See supra Chapter IV.
220(c) The Memorial misleadingly pl aces different volunteer units, the
armed forces of the Serb regions in Croatia, and the RSK in the
same and single category of “Serbian paramilitary groups”, and
tries to create an impression that all of these groups were part of the
JNA and, later, the Yugoslav Army, in order to avoid providing the
necessary evidence concerning each specific group, and in
particular, evidence of their relationship with the JNA;
(d) The TO and MUP units in the Se rb autonomous regions in Croatia
were under the command and control of the local or regional Serb
authorities; they fought alone or in coordination with the JNA, and
could be subordinated to the JNA only on the basis of a decision of
the local authorities or TO commanders;
(e) After the creation of the RSK, all TO forces were unified in the
SVK in spring 1992; the SVK was led by the President of the RSK;
(f) The Applicant’s claims that th e forces of the Serb autonomous
regions were “controlled” by the SFRY or the FRY are not
supported by evidence;
(g) Important evidence adduced by th e Applicant in relation to the
volunteer paramilitary groups does not meet the high standard of
proof required in the present proceedings, or is plainly inadmissible
as its source is not identified;
(h) The Applicant’s claims concerning the connections between certain
volunteer paramilitary groups and th e Serbian authorities remain
unsubstantiated or are supported by unreliable evidence;
(i) The documents regulating the relationship between the JNA and
various volunteer paramilitary gorups show that individual volunteers
were accepted into the JNA on the basis of a decision of an appropriate
JNA officer, which means that in each case of alleged violations
committed by volunteers it has to be shown that they were actually
accepted into the JNA or acted under siteffective control. The fact that
the JNA did not have volunteer param ilitary groups underits control is
evidenced by the instruction issued as late as 10 December 1991,
requiring that these units either accept to be put under the JNA
command, or they would be disarmed and removed from the battlefield.
221222 CHAPTER VII
RESPONSE TO THE APPLICANT’S ALLEGATIONS CONCERNING CRIMES
COMMITTED AGAINST CROATS
1. Introduction
654. In Chapters 4 and 5 of the Memorial, the Applicant presented its view of the facts
which, according to the Applicant, represent genocidal activities in Eastern Slavonia
and the rest of Croatia. The Respondent respectfully submits that even if the facts
presented by the Applicant in these Chap ters were to be treated as reliable, quod non,
they do not support the Applicant’ s claims that the incidents in question, even if taken
on a cumulative basis, could be qualified as genocide.
655. The claims that were presented by the Applicant will be analyzed in detail in the present
Chapter. It will be shown that the facts pres ented by the Applicant are to a large extent
supported solely by witness statements and documents produced either by the Applicant
itself or by individuals/entities close to te Applicant, who cannot be regarded as
disinterested persons in the present case. T hose witness statements will be analyzed in
details. Several conclusions should however be stressed at this point. For one, as a rule,
statements provided by the Applicant do not fulfill the minimum evidentiary
requirements of affidavit. Furthermore, in many cases, they solely or predominantly
contain hearsay evidence. Lastly, a noticeable percentage of statements have been given
in the course of criminal proceedings be fore Croatian authori ties by persons facing
criminal charges, which brings into ques tion the voluntary nature of the statements
given. Accordingly, such documents are, fo r these and other re asons that will be
explained further, inadmissible.
656. Moreover, the analysis of evidence offeredby the Applicant, both witness statements and
other documents, will show a vast number of inconsistencies contained either in
individual pieces of evidence or visible whendocuments are cross-referenced with others.
This analysis will also reveal a considerable number of mistakes and misrepresentations.
Some claims made in the Memorial are, furthermore, not even corroborated by any
evidence offered by the Applicant. Having in mind, however, that the Applicant
223 submitted 433 statements, the Responden t will point out only the most obvious
inconsistencies. The Respondent will also compare the claims of the Applicant with the
relevant judgments and indictments of th e ICTY. Finally, the Respondent will briefly
address the allegations on the involvement of the JNA in the allege d crimes, while this
issue will be dealt with moreextensively in other Chapters of this Counter-Memorial.
657. Because of the inconsistencies, mistakes and sometimes misrepresentations made by the
Applicant, it is very hard to reach a ge neral conclusion as to the number of persons
killed in the events described in the Memo rial. From the analysis of the facts, as
presented by the Applicant, it seems that the number of the persons allegedly killed 660
includes all war related casualties on the terr itory of Croatia – civilians and combatants
alike. Furthermore, it is more than likely that this number also includes persons of Serb
ethnicity who were the victims of acts committed by the Applicant. In any case,
however, it is for the Applicant to produce ev idence in support of its claims concerning
the alleged killings, and the Applicant failed to do so to a large extent.
658. The following analysis contained in the Chap ters 4 and 5 of the Applicant’s Memorial
will, for ease of reference, follow the order of presentation, subtitles and the style of
references applied in the Memorial.
2. Response to the Applicant’s Allegations Concerning Crimes Committed in Eastern
Slavonia
TENJA
(Memorial, paras. 4.20 – 4.30)
659. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Tenja, the Applicant alleges:
a) Random murder of Croatian civilians in the period between 6
October 1991 and 20 April 1992 (the names of 30 victims have
been provided);
660
See Memorial, para. 1.09, “This case has far-reaching legaland historical relevance for Croatia. Croatia suffered
great losses that can be attributed tothe war of aggression and genocidal campaign launched against it in 1991 by
the Serbian leadership. These losses include 10,572 persons killed, 1,419 persons still missing and unaccounted for,
and 7,624 imprisoned in various camps and detentitres, a majority of them on the territory of FRY.”
224 b) Killing of a number of civilians and 3 defenders after the attack on
the cattle-raising farm “Orlovnj ak” on 6 October 1991 (the names
of 7 persons have been provided);
c) Rape of Croatian women and beating of detainees.
660. Evidence offered by the Applicant in support of these claims are witness statements
contained in annexes nos. 1, 2, 4 – 18, a lette r from the Ministry of Defence of the
Republic of Croatia, and the list of exhumed mass graves. 661What should be noted in
relation to these witness statements is that they do not fulfill th e minimum evidentiary
662
requirements of affidavit. These documents are accordingly inadmissible.
661. Even if these witness statemen ts are to be treated as re liable, they do not support the
Applicant’s claims. Only witnesses LjB (a nnex 5), ZM (annex 15), JK (annex 16) and
LR (annex 17) allegedly have direct knowledge about the alleged murders, but each of
them only about one murder. The police re cord of interrogation of II* (annex 11)
contains only a general a llegation that “about 40 peopl e were buried in Orthodox
cemetery, few of which died a natural death, wh ile the others were probably killed in
the armed clashes or in some other way”, but offers nothi ng further on how and where
the buried people died, or even what is their ethnicity. 663
662. There is no document that would confirm that Croatian women were raped in Tenja.
663. Allegations contained in documents of Croatian official bodies (annexes 163, 165 and
166) must be proved by evidence from an i ndependent source; they cannot alone be
treated as reliable evidence, because they have been generated by the Applicant itself.
664. The crimes alleged to have been committed in Tenja are not sufficiently supported by
evidence submitted by the Applicant for the reasons explained above. The ICTY has
neither indicted nor sentenced anyone with respect to the alleged crimes in Tenja. In any
661
The letter from the Ministry of Defence of the Republic of Croatia, annex 163; List of exhumed mass graves
of the Government Office for Detained and Missing Persons of the Republic of Croatia, annex&s166.
662The copies of the original witne ss statements contained in annexes 1- 2, 4-10, 12-18 do not even contain
signatures of persons who allegedly gave those statements. In annexes 1, 5-8, 10, 12 & 18 there is no signature
of person(s) who took the statements while from annexes 1, 5-8 & 10 it is even not visible who was a person or
body who took these statements. None of the offered statements contains either an oath or a solemn promise that
the truth has been stated.
663One has to have in mind that Serbs are of Orthodox religion, while Croats are of Catholic religion. It is thus
more likely that people buried in the Orthodoxcemetery would be Serbs rather than Croats
225 event, the Applicant has not shown that if crimes were committed they were committed
with genocidal intent, or that the crimes or the alleged genocidal intent can be attributed
to the Respondent. For these reasons, the Respondent submits that all of the Applicant’s
allegations relating to Tenja should be dismissed in their entirety.
DALJ
(Memorial, paras. 4.31 – 4.37)
665. In support of its claims that the actus reus of the crime of genocide was fulfilled in
relation to Dalj the Applicant alleges:
a) Murder of 16 MUP and ZNG me mbers, a number of whom were
killed after their surrender on 1 August 1991;
b) Killing of a number of civilians during the attack on 1 August 1991
(three individuals are identified);
c) Total of 56 or 57 Croat victims in and after the 1 August attack;
d) Disappearance of 300 persons;
e) Torture and murders of the detainees brought to Dalj from
Vukovar.
666. The evidence adduced by the Applicant in support of th ese claims are witness
664
statements contained in annexes 21 – 27 and four other documents. Again, these
665
witness statements do not fulfill the minimu m evidentiary requirements of affidavit
and are accordingly inadmissible.
667. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims. From the Applicant’s de scription of the events in Dalj on 1 August
664
A number of autopsy records of the bodies of the members of ZNG and MUP of RH contained in the file of the
District Court in Osijek no. K-95/94, Memorial, Annexes, Vol. 2(I), annex 168; Mass Killing and Genocide in
Croatia 1991/92, p. 112; Croatian Medical Journal , War Suppl. 1, 1992 which states that on 3 August 1991
autopsies were performed on Petar Đevlekaj and Nikola Tadijan at the Ward for Pathology and Forensic
medicine in the Osijek hospital; List of exhumed mass graves of the Government Office for Detained and
Missing Persons of the Republic of Croatia, Memorial, Annexes, Vol. 2(I), annex 166; DioceĐakovo and
Srijem War Damages 1991-1994,Đakovo 1994.
665None of the seven offered statements contains signatur es of persons who allegedly gave those statements. In
annexes 21, 23, 26 & 27 there is no signature of person(s) who took those statements while from annexes 21 &
23 it is even not visible who was a person or body who took the statements.
226 1991, it is obvious that an armed conflict took place in this village, with the Croatian
forces constituting one side in that conflic t. The Applicant did not offer any credible
support of its claims that some of the 16 MUP and ZNG members were executed after
they surrendered (see annex 168). Witness HS stated that she saw 37 corpses on the
Catholic cemetery. The Applicant, however , does not provide any further evidence on
whom did those bodies belonged to or how th ey were killed (see annex 22). Out of 25
bodies that were, according to the Applicant, transferred to the Osijek hospital, only 2
were identified as civilians, while the re st were obviously members of the MUP and
666
ZNG forces that were involved in the armed conflict. Statement of witness AK does
not contain any first hand information about the alleged murders, and instead contains
only hearsay evidence without further corroboration (see annex 21).
668. Applicant did not offer any evidence in suppo rt of the alleged acts of torture. Witness
SD gave only a general statement that Croats were tortured without providing any facts
to corroborate this allegation and is not sp ecific enough about the perpetrators (see
annex 23).
669. Allegations contained in document of Cr oatian official body (annex 166) must be
proved by evidence from an independent sour ce; they themselves cannot be treated as
reliable evidence because they have been generated by the Applicant.
670. Crimes in Dalj were included among the char ges in the Indictme nt against Slobodan
Milošević before the ICTY. 667 The time-frame covered by the Indictment, however,
does not coincide with the time period that the Applicant is alleging in its Memorial.
671. The crimes alleged to have been committe d in Dalj are not sufficiently supported by
evidence submitted by the Applicant for the reasons explained above. The Applicant has
not shown that if crimes were committed they were committed with genocidal intent, or
that the crimes or the alleged genocidal intent can be attributed to the Respondent. Even
from the Applicant’s descripti on of the events it is obvious that the majority of deaths
666Croatian Medical Journal that is cited as a source for this allegation is not attached to the Memorial.
667See ICTY, Milošević, IT-02-54, Indictment: Croatia, paras 50 and 51; also see Stanišić et al., IT-03-
69, Third Ammended Indictment, 10 July 2008, paras. 36 and 37.
227 occurred during the armed conflict which involved considerable numbers of forces from
the Croatian MUP and ZNG. For these reasons , the Respondent submits that all of the
Applicant’s allegations relating to Dalj should be dismissed in their entirety.
BERAK
(Memorial, paras. 4.38 – 4.46)
672. In relation to Berak, in support of its claims pertaining to fulfillment of the actus reus of
the crime of genocide the Applicant alleges:
a) Random murder of Croats in the period beginning with 2
September 1991 and ending with 1 December 1992 (the names of
10 victims have been alleged);
b) 4 cases of rape committed by “White Eagles”, a paramilitary unit;
c) Disappearance of 44 women, ol der men and children from the
basement camp and beatings of the detainees.
673. In support of its claims the Applicant offered as evidence witness statements contained
in annexes 28 – 36 and specific record of exhumation. 668 These statements do not fulfill
the minimum evidentiary requirements of affidavit 669 and are accordingly inadmissible.
674. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims. The Applicant’s al legation that bodies of approximately 44
women, older men and children, who had b een detained in the basement camp
(basement of the Drago Penavić house), were found in a mass grave is inconsistent with
other facts given by the App licant in relation to Berak. Namely, 5 out of 10 persons
identified in the mass grave were, accord ing to the Applicant, killed before 30
September, the day when the baseme nt camp was allegedly established, 670while the
sixth identified person from the mass grave is Nada Juratovac who hung herself after his
668Records of the exhumation of human post-mortem remains from 25 March 1998, Memorial, Annexes, Vol. 2(I),
annex 167.
669None of them contains either an oath or a solemn promise that the truth has been stated while the copies of the
original witness statements contained in annexes 28, 30, 32, 33, 35 & 36 do not even contain signatures of
persons who allegedly gave those statements. In annexes 28, 30, 33, 34 & 36 there is no signature of person(s)
who took those statements, while from annexes 28, 29, 30, 31, 33 & 36 it is even not visible who was a person or
body who took the statements.
670Memorial, para.4.41.
228 release from the camp. 671 Furthermore, from the injuries described in the autopsy
reports it is reasonable to conclude that mo st of the deaths can be linked to combat
activity. The witness statements offered by th e Applicant in relation to the killing of
Kata Garvranović are vague and inconsistent (see annexes 29 and 36).
675. The Applicant failed to support its allega tion about the 44 missing persons with any
type of source.
676. The crimes alleged to have been committed in Berak are not sufficiently supported by
evidence submitted by the Applicant for the reasons explained above. The ICTY has
neither indicted nor sentenced anyone with re spect to the alleged crimes in Berak. In
any case, the Applicant has not showed that if crimes were committed they were
committed with genocidal intent, or that the crimes or the alleged genocidal intent can
be attributed to the Respondent. For these reasons, the Respondent submits that all of
the Applicant’s allegations relating to Berak should be dismissed in their entirety.
BOGDANOVCI
(Memorial, paras. 4.47 – 4.55)
677. In relation to Bogdanovci, in support of its claims pertaining to the actus reus of the
crime of genocide the Applicant alleges:
a) Killings during the attack on 2 October 1991 (the names of 21
victims have been alleged);
b) Killing during the attack on 10 November 1991 (at least 15
members of the ZNG, 10 members of an Albanian family and three
identified Croats have been listed as victims of the attack);
c) A total of 84 killed or disappe ared Croatian civilians during the
occupation;
d) Beating of detainees.
671
Memorial, para. 4.42.
229678. Evidence offered by the Applicant in support of these claims are witness statements
contained in annexes 38 – 45 an d a list of exhumed mass graves. 672 However, witness
statements offered by the Applicant in suppor t of its claims do not fulfill the minimum
evidentiary requirements of affidavit. 673 These documents are accordingly inadmissible.
679. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims. Even from the Applicant’ s description of the events, it is obvious
that an armed conflict took place in the village, with Croatian forces heavily involved in
the fighting. Accordingly, witness MM stated that she found out that during the first
attack on Bogdanovci several Croatian police o fficers were killed while trying to enter
the village to provide assistance, 674while during the second attack at least 15 members
of the ZNG were killed. Statement of w itness ZP (annex no. 44) reveals that ZNG
forces in Bogdanovci were reinforced by th e ZNG’s from Vinkovci, Nuštra, Ivankova
and Županje and that they were successful in destroying armed ve hicles and tanks and
inflicting heavy losses to Serbian forces.
680. The Applicant’s allegation that about 84 Croatian civilians were killed or disappeared is
based on the testimony of witness AC that doe s not provide any details and seems to be
based solely on hearsay evidence (see annex 38). Statements offered by the Applicant in
relation to the killing of Zvonko Vukovi ć, Dominko Ceranac, Silvester Edelinski and
Stjepan Bartulović are completely imprecise regarding the circumstances of the alleged
killings and based on hearsay information (see annexes nos. 39 and 42).
681. Witness statements that were provided by the Applicant are not consistent. While
witness VS (annex 42) gave a st atement to the effect that Đurica Katić, Zdravko Katić
and Ivan Križanović were killed in the c ourtyard of Antun Kobasić, witness AT (annex
39) gave statement that Đurica Katić, Zdravko Katić, Ivan Križanović were killed from
fire weapons together with one defender (mem ber of Croatian armed forces) inside the
house of Antun Markobaši ć. Finally, the Applicant claims that Đurica Katić, Zdravko
Katić and Ivan Križanovi ć were killed while hiding in the basement of Antun
672List of exhumed mass graves of the Government office for Detained and Missing Persons of the Republic of
Croatia, Memorial, Annexes, Vol. 2(I), annex 166.
673None of the eight offered statements contains signatures of persons who allegedly gave those statements and
from annexes 38, 41 & 45 it is even not possible to see who a person or body who took the statements was.
674Memorial, para. 4.50.
230 Markobašić house. 675The statement of MB was used by the Applicant several times
despite the fact that he was not in Bogdanovci at the time of the events and that he was
only providing an interpretation of what he had heard from others (see annex 41).
682. The crimes alleged to have been committed in Bogdanovci arenot sufficientlysupported by
the evidence submitted by the Applicant for the reasons explained above. The ICTY has
neither indicted nor sentenced anyonewith respect to the alleged crimes in Bogdanovci. In
any event, the Applicant has no t shown that if crimes werecommitted they were committed
with genocidal intent or that the crimes or the alleged genocidal intent can be attributed to
the Respondent. For these reasons, the Respo ndent submits that all of the Applicant’s
allegations relating to Bogdanovci should be dismissed in their entirety.
ŠARENGRAD
(Memorial, paras. 4.56 – 4.61)
683. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Šarengrad, the Applicant alleges:
a) Killings during mortar attack on 10 September 1991 (the names of
4 victims have been provided, two unidentified members of the
ZNG are also listed as victims);
b) Killing of three Croats in subsequent months;
c) One instance of rape and random beatings.
684. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes 46 – 54, one book and one war chronicle. 676Again, the
Court should note that witness statements do not fulfill the minimum evidentiary
requirements of affidavit 677and are accordingly inadmissible.
675
Memorial, para. 4.49.
676 M. Kevo & D. He čimović, The Wounded Church in Croatia, the Destruction of Sacral Monuments in
Croatia, 1991–1995, Zagreb, 1996; and The War for Croatia – a war chronicle of Eastern Slavonia ,
Vinkovci/Osijek, 1992.
677None of the copies of the original witness statements contained in annexes 47, 49, 50, 51, 52, 53 & 54 do not
even contain signatures of persons who allegedly gave those statements. From annexes 46, 48, 49, 50, 52 & 54 it
is not even possible to see who was a person or body who took the statements.
231685. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims. Even the Applicant’s description of the events reveals that Croatian
forces were engaged in the fighting at Šarengrad. According to the witness ŽM, four out
of six victims who were identified by the Appl icant died as a result of a mortar attack
(see annex 46).
686. Allegations contained in the document “ The Wounded Church in Croatia, the
Destruction of Sacral Monuments in Croatia, 19 91–1995, Zagreb, 1996” originate from
a Croatian body that is close to the Appli cant and must be proved by evidence from an
independent source; the document itself cannot be treated as reliable evidence because it
had not been generated by a disinterested organ.
687. The Prosecutor of the ICTY charged Slobodan Miloševi ć with destruction of homes,
religious buildings and other property in Šarengrad. 678The Indictment, however, did not
include any charge of murder in relation to Šarengrad.
688. The crimes alleged to have been committed in Šarengrad are not sufficiently supported
by evidence submitted by the Applicant for th e reasons explained above. In any event,
the Applicant has not shown that if crimes were committed they were committed with
genocidal intent or that the crimes or the alleged genocidal intent can be attributed to the
Respondent. For these reasons, the Respondent submits that all of the Applicant’s
allegations relating to Šarengrad should be dismissed in their entirety.
ILOK
(Memorial, paras. 4.62 – 4.72)
689. Concerning the actus reus of the crime of genocide in relation to the Ilok municipality
the Applicant alleges the following:
a) Killings of Croats after the voluntary exodus of Croat population
on 17 October 1991 (graves containing 17 bodies were exhumed in
the area of Ilok);
b) Random beatings and maltreatment.
678
ICTY, Milošević, IT-02-54-T, Indictment, para. 36(l) and 72.
232690. Evidence offered by the Applicant in support of its claims are witness statements
contained in annexes 55 – 60, followed by the list of exhumed mass graves and the book
“Mass killing and genocide in Croatia ”. 679 The witness statements do not fulfill the
minimum evidentiary requirements of affidavit 680and are accordingly inadmissible.
691. Even if the witnesses are to be treated as reliable, quod non, their statements do not
support the Applicant’s claims. The Applicant bases its allegations about four killings
on the statement of FD (annex 55) who, judgi ng by his statement, could only provide
hearsay evidence on the alleged killings, since he also claims to have been in prison
when the killings took place. Further, the alle ged killings of Daniel Toth’s grandmother
and grandfather are not mentioned in any of the witness statements enclosed by the
Applicant.
692. Allegations contained in annex 166, a docum ent of Croatian official body, must be
proved by evidence from an independent sour ce. This annex cannot by itself be treated
as reliable evidence because it has been generated by the Applicant.
693. The Prosecutor of the IC TY charged Slobodan Miloševi ć for deportation or forcible
transfer of inhabitants from Ilok. 681The Indictment, howeve r, did not include any
charge of murder with respect to Ilok.
694. The crimes alleged to have been committe d in Ilok are not suffi ciently supported by
evidence submitted by the Applicant for the reasons explained above. In any event, the
Applicant has not shown that if crimes were committed, they were committed with the
genocidal intent or that the crimes or the alleged genocidal intent can be attributed to the
Respondent. For these reasons, the Respondent submits that all of the Applicant’s
allegations relating to Ilok should be dismissed in their entirety.
679 The book “Mass killing and genocide in Croatia 1991/92”; the “List of the exhumed mass graves of the
Government Office for Detained and Missing Persons of the Republic of Croatia”, Memorial, Annexes, Vol.
2(I), annex 166.
680The copies of the original witne ss statements contained in annexes 57, 58, 59 & 60, do not even contain
signatures of persons who allegedly gave those statements while in annexes 55, 57, 58, 59 & 60 it is even not
visible who was a person or body who took the statements.
681ICTY, Milošević, IT-02-54-T, Indictment, para. 36(k).
233 TOMPOJEVCI
(Memorial, paras. 4.73 – 4.80)
695. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Tompojevci the Applicant alleges:
a) Killings in March 1992 (the names of 7 victims and 2 missing
persons have been alleged);
b) Random maltreatment.
696. Evidence offered by the Applicant in support of these claims are witness statements
contained in annexes 61 – 65 and the book The Wounded Church in Croatia, the
Destruction of Sacral Monuments in Croatia, 1991–1995. None of the witness
statements fulfills the minimum evid entiary requirements of affidavit. 682These
statements are accordingly inadmissible.
697. Even if the witnesses are to be treated as reliable, their statements do not support the
Applicant’s claims. Witness statements encl osed by the Applicant in relation to the
alleged killings and missing persons are testimonies of persons who only have
circumstantial knowledge about the events . Furthermore, the alleged killing of Đuro
Havidić is not mentioned in any of the witnes s statements enclosed by the Applicant.
From the statement of witness VV (annex 62) it is obvious that Croatian forces were
engaged in fighting over Tompojevci.
698. Allegations contained in the document The Wounded Church in Croatia, the
Destruction of Sacral Monuments in Croatia, 1991–1995originate from a Croatian body
that is close to the Applicant and must be proved by evidence from an independent
source; the document itself cannot be treate d as reliable evidence because it had not
been generated by a neutral organ.
682
Namely, none of them contains either an oath or a so lemn promise that the truth has been stated. The copies
of the original witness statement contained in annex 62 do not contain signature of person who allegedly gave
that statement. In annexes 61 & 64 there is no signatur e of persons(s) who took the statement while in annex 61
it is even not visible who a person or body that took the statements was.
234699. The crimes alleged to have been committed in Tompojevci are not sufficiently
supported by evidence submitted by the Applicant for the reasons explained above. The
ICTY has neither indicted nor sentenced anyon e with respect to th e alleged crimes in
Tompojevci. In any event, the Applicant has not shown that if crimes were committed
they were committed with genocidal intent or that the crimes or the alleged genocidal
intent can be attributed to the Respondent . For these reasons, the Respondent submits
that all of the Applicant’s allegations relating to Tompojevci should be dismissed in
their entirety.
BAPSKA
(Memorial, paras. 4.81 – 4.93)
700. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Bapska the Applicant alleges:
a) Random murder of Croats dur ing November and December 1991
(killing of 17 victims has been alleged out of which 6 civilians have
been identified; in addition to that the Applicant alleges killing of
commanding officer of the Croati an army in Ilok, Šarengrad,
Bapska and Mohovo);
b) Use of people as human shields;
c) Random beating of civilians.
701. Evidence produced by the Applicant in support o itfs claims are witness statements contained
in annexes66 – 74 and the bookThe Wounded Church in Croatia, the Destruction of Sacral
Monuments in Croatia, 1991–1995. The witness statements do not fulfill the minimum
683
evidentiary requirements of affidavit and are accordingly inadmissible.
702. Even if the witnesses are to be treated as reliable,quod non, their statements do not support
the Applicant’s claims. Namely, once more, even the statements offered by the Applicant
show that in the village of Bapska Croatian armed forces were engaged in heavy fighting with
683
The copies of the original witness statements contained in annexes 66, 67, 68, 69, 70, 72 & 73, do not contain
signatures of persons who allegedly gave those statements. In annexes 66, 70 &72 there is no signature of
person(s) who took those statements, while it is even not visible from annexes 66, 70, 72 & 74 who a person or
body that took the statements was.
235 Serb forces and that both sides had loses (ese annex 74, statement ofFK*). According to the
witness statements offered by the Applicant, fivout of 17 Croats that were allegedly killed in
Bapska were killed in the fighting and only three out of those17 people are claimed to have
been killed after the Serb forces enred the village. (see annexes 68 and 69).
703. The ICTY Indictment charges Slobodan Milošević for deliberate destruction of property
684
in Bapska. The Indictment, however, did not include any charge of murder in relation
to Bapska.
704. The crimes alleged to have been committed in Bapska are not sufficiently supported by
the evidence submitted by the Applicant for th e reasons explained above. In any event,
the Applicant has not shown that if crimes were committed they were committed with
genocidal intent or that the crimes or the alleged genocidal intent can be attributed to the
Respondent. For these reasons, the Respondent submits that all of the Applicant’s
allegations relating to Bapska should be dismissed in their entirety.
TOVARNIK
(Memorial, paras. 4.94 – 4.106)
705. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Tovarnik the Applicant alleges:
a) Random murder of Croats in the period from 23 September 1991 to
October 1991 (24 identified vic tims while 61 person has been
allegedly killed);
b) Random beatings of prisoners;
c) Infliction of bodily injuries to three persons from 28 September and
1 October 1991.
706. The evidence produced by the Applicant in supp ort of its claims are witness statements
contained in annexes 75 – 87, the book “Mass killings and genocide in Croatia”, and the
list of the exhumed mass graves of the G overnment Office for Detained and Missing
684
ICTY, Milošević, IT-02-54-T, Indictment, para. 36(l) and 72.
236 Persons of the Republic of Croatia. 685 The witness statements do not fulfill the
minimum evidentiary requirements of affidavit 686 and are accordingly inadmissible.
707. Even if the witnesses are to be treated as reliable, their statements do not support the
Applicant’s claims. Witness BH* (see anne x 81) thus stated th at Croatian forces
received an order to attack the tank column and it was the Croatian forces from
Tovarnik who first killed the Serb Major, which led to subsequent heavy fighting.
According to his statement, this witn ess only had 60 people under his command. He
further stated that he subsequently h eard on CNN news that the JNA endured 250
casualties in the battle for Tovarnik.
708. Witness statements offered by the Applican t do not support a general claim that 61
persons were killed in Tovarnik. Witness MD stated that he bu ried 32 bodies, but did
not say anything about the circumstances under which the deceased lost their lives (see
annex 83).
709. Allegations contained in annex 166, documen t of a Croatian official body, must be
proved by evidence from an independent so urce. This document by itself cannot be
treated as reliable evidence because the Applicant produced it.
710. The ICTY Prosecutor ch arged Slobodan Miloševi ć with the destruction of homes,
religious buildings and other property in Tovarnik. 687The Indictment, however, did not
include any charge of murder in relation to Tovarnik.
711. The crimes alleged to have been committed in Tovarnik are not sufficiently supported
by evidence submitted by the Applicant for th e reasons explained above. In any event,
the Applicant has not shown that if crimes were committed they were committed with
genocidal intent or that the crimes or the alleged genocidal intent can be attributed to the
Respondent. For these reasons, the Respondent submits that all of the Applicant’s
allegations relating to Tovarnik should be dismissed in their entirety.
685The list of the exhumed mass gravesof the Government Office for Deta ined and Missing Persons of the
Republic of Croatia, Memorial, Annexes, Vol. 2(I), annex 166.
686The copies of the original witness statements contained in annexes 75, 76, 77, 81, 85, 86 & 87 do not contain
signatures of persons who allegedly gave those statements. Statements in annexes 76, 77, 80, 81, 82, 83 & 86
contain no signature of person(s) who took those statements, while from annexes 76, 77, 80, 81, 82, 83 & 86 it is
even not possible to see who a person or body that took the statements was.
687ICTY, Milošević, IT-02-54-T, Indictment, para. 36(l) and 72.
237 SOTIN
(Memorial, paras. 4.107 – 4.115)
712. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Sotin the Applicant alleges:
a) Random murder of Croats in the period from 28 August 1991 to 14
October 1991 (3 identified victims),
b) Disappearance of 33 people, wh ile 12 bodies were exhumed of
which 7 have been identified;
c) Random beatings and torture of prisoners;
d) 2 cases of rapes.
713. Evidence offered by the Applicant in support of ic tlaims are witness statements contained in
annexes 89 – 94 and the listof the exhumed mass graves. 688The witness statements do not
fulfill the minimum evidentiary requirements of affidavitand are accordingly inadmissible.
714. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims. Sotin was a village where heavy fighting took place, which can
be seen from the fact that the fighting la sted from 28 August until 14 October. Witness
BM (see annex 93) testified about a large number of Croats allegedly killed in Sotin.
However, most of the incidents he mentione d happened after 4 October, the date when
he had left Sotin, which makes his statement unreliable. Similar is the situation with
witnesses HV* and SL (see annexes 90 and 91 ), who both gave ev idence about events
in October even though they were, accordin g to their statements, arrested on 30
September 1991.
715. Once more, the Respondent stresses that the allegations contai ned in annex no. 166,
document of a Croatian official body, must be proved by evidence from an independent
source. This document by itself cannot be tr eated as reliable ev idence because it was
produced by the Applicant.
688The list of the exhumed mass gravesof the Government Office for Deta ined and Missing Persons of the
Republic of Croatia, Memorial, Annexes, Vol. 2(I), annex 166.
689None of the statements contains either an oath en promise that the truth has been stated; the copies of the
original witness statements contained in annexes 89, 91 and 93 do not even contain signatures of persons who allegedly
gave those statements; in annexes 90 and 93 it is not visible who a person or body who took the statements was.
238716. The crimes alleged to have been committed in Sotin are not sufficiently supported by
evidence submitted by the Applicant for the reasons explained above. The ICTY has
neither indicted nor sentenced anyone with respect to the alleged crimes in Sotin. In any
event, the Applicant has not shown that if crimes were committed they were committed
with the genocidal intent or that the crimes or the alleged genocidal intent can be
attributed to the Respondent. For these reasons, the Responde nt submits that all of the
Applicant’s allegations relating to Sotin should be dismissed in their entirety.
LOVAS
(Memorial, paras. 4.116 – 4.132)
717. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Lovas the Applicant alleges:
a) Murder of 23 Croats on 10 October 1991;
b) Murder of 32 Croats on 18 October 1991 in the morning, first in the
town and later in the minefield;
c) Murder of 69 Croats between 19 October 1991 and the New Year;
d) Random beatings and torture of prisoners;
e) Random rapes.
718. Evidence offered by the Applicant in support of these claims are witness statements
contained in annexes 95 - 103, 105 – 111. In additi on, the Applicant refers to the list of
690
exhumed mass graves and the book “Mass killing and genocide in Croatia”. Again,
witness statements offered by the Applicant in relation to Lovas do not fulfill the
minimum evidentiary requirements of affidavit 691and are accordingly inadmissible.
719. Even if witnesses are to be treated as reliable, their statements do not support the
Applicant’s claims. The Applicant’s contention that there was no fighting in Lovas on 10
690List of exhumed mass graves of the Government Office for Detained and Missing Persons of the Republic of
Croatia, Memorial, Annexes, Vol. 2(I), annex 166 and Record of exhumation, Memorial,Annexes,Vol.2(I),annex
168B; and the book “Mass killing and genocide in Croatia 1991/92”.
691The copies of the original witness statements contained in annexes 96, 98, 99, 100, 101, 103, 105, 106, 108,
109 & 110 do not even contain signatures of persons who allegedly gave those statements; in annexes 96, 99,
100, 101, 103 & 105 there is no signature of person(s) who took those statements, while from annexes 96, 98,
99, 102, 105, 107 & 111 one cannot see who a person or body who took the statements was.
239 October is not supported by itsown witness statements. Hence,witness LjS (see annex 98)
stated that there the resistancewas week, but said at the sametime that, for example, a real
battle, that had lastedfor a whole hour, wenton around his house.
720. The Applicant’s allegation that, from 19 Oc tober until the New Year, 69 Croats were
killed is not supported with any reliable evidence. However, fourteen accused are
currently standing trial before the Belgrade District Court for the alleged killing of 68
Croat victims from the village of Lovas. 692
721. In any event, the Applicant has not shown th at if crimes were committed they were
committed with the genocidal intent or that the crimes or the alleged genocidal intent
can be attributed to the Respondent. For these reasons, the Respondent submits that all
of the Applicant’s allegations relating to Lovas should be dismissed in their entirety.
TORDINCI
(Memorial, paras. 4.133 – 4.138)
722. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Tordinci the Applicant alleges:
a) Murder of 11 Croats on 25 October 1991;
b) Disappearance of 29 persons;
c) Random beatings and torture of prisoners.
723. Evidence produced by the Applicant in support of these claims are witness statements
contained in annexes 112 and 113. These witness statements do not fulfill the minimum
693
evidentiary requirements of affidavit and are accordingly inadmissible.
724. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims. Thus, witness TR (see annex 112) gave 11 names of Croats from
Tordinci who had allegedly been killed, but did not offer any furthe r information as to
how, under what circumstances or by whom they were killed.
692Belgrade District Court, Devetak et al. case, Indictment, available at
<http://okruznisudbg.rs/content/2008/devetakljubaniostali
693Copies of the two original witness statement do not contain signature of person who allegedly gave that
statements. In addition both statements put forward by the Applicant were taken by police without the
involvement of judicial organs.
240725. Concerning the allegation about 29 missing pe rsons from Tordinci, the Applicant did
not produce any evidence regarding the time or the circumstances under which they had
gone missing.
726. Crimes alleged to have been committed in Tordinci are not sufficiently supported by
evidence submitted by the Applicant for the reasons explained above. The ICTY has
neither indicted nor sentenced anyone with respect to the alleged crimes in Tordinci. In
any event, the Applicant has not shown that if crimes were committed they were
committed with the genocidal intent or that the crimes or the alleged genocidal intent
can be attributed to the Respondent. For these reasons, the Respondent submits that all
of the Applicant’s allegations relating to Tordinci should be dismissed in their entirety.
VUKOVAR
(Memorial, paras. 4.139 – 4.192)
727. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to the Vukovar municipality the Applicant alleges the following:
a) In relation to the battle for Vukovar and the suburb of Sajmiste:
i. Killing of a total of 529 pe ople in the fighting between
Croatian and Serb forces;
ii. 90 Croatian civilians killed in the fighting in the suburb
Sajmiste on 5 September, and additional 30 Croats killed in
the next couple of days;
iii. Rapes and killing ofeight persons in diffnt Vukovar suburbs;
b) In Mitnica, killing of several Croats during the shelling before 18
November;
c) In relation to Borovo Naselje:
i. Killing of at least 7 or 8 people during the attack on the
Commerce building;
ii. Killing of 10 to 22 prisoners in Staji ćevo and Sremska
Mitrovica (Serbia), after they had been taken prisoners in
Borovo Naselje on 19 November 1991;
iii. Killing of one Croat women in Negoslavci (Serbia);
241 d) In Central Vukovar:
i. Random killings of Croats which took place from 18 until 21
November 1991 (8 members of Barković family and another 5
identified persons);
ii. Random torture and several cases of rape;
e) In Ovčara, killing of 260 men taken from the Vukovar hospital on 20
November 2001.
f) In Velepromet:
i. Killing of 350 Croats at Velepromet detention facility;
ii. Unspecified number of rapes.
728. Evidence produced by the Applicant in support of its claims are witness statements
contained in annexes 114 – 152 and 155 – 157, the book “Mass killings and genocide in
Croatia”, and the list of exhumed mass graves. 694 For the reasons previously explained,
the witness statements do not fulfill the minimum evidentiary requirements of
695
affidavit and are accordingly inadmissible.
729. Even if the witnesses are to be treated as reliable , quod non , their statements do not
support the Applicant’s claims, as will be explained in the following paragraphs.
The battle for Vukovar and the suburb of Sajmište
730. The Applicant has not provided a single piec e of evidence to support its claims on the
killing of 120 Croats in the suburb of Sajmište. 696The statements concerning the events
during the battle for Vukovar are, to a la rge extent, unreliable and based on hearsay
information. They also include statements given to Croatian armed forces by Serbs
694
List of exhumed mass graves pf the Government Office for Detained and Missing Persons of the Republic of
695atia, Memorial, Annexes, Vol. 2(I), annex 164.
The copies of the original witness statements contai ned in annexes 114, 115, 116, 117, 118, 120, 121, 125,
127, 128, 130, 137, 138, 140, 142, 143, 144, 145, 146, 148, 151, 152, 153, 154, 155, 156, 157, 157a & 157c do
not contain signatures of persons who allegedly gave those statements. In annexes 114, 115, 117, 127, 128, 130,
135, 136, 137, 138, 140, 142, 144, 146, 151, 155, 156, 157, 157a & 157c there is no signature of person(s) who
took those statements, while from annexes nos. 114, 117, 127, 129, 130, 131, 135, 136, 138, 139, 140, 141, 142,
143, 146, 147, 149, 150, 151, 155, 157a & 157c one cannot even see who a person or body who took the
statements was.
696According to the Applicant, 90 Croatian civilians were killed in the fighting on 5 September, and additional
30 people were killed in the next couple of days, see Memorial, p.199, para. 4.153.
242 being held in detention. 697The evidence is also frequently misused, for example, the
Applicant claims that there were several accounts of Croats being crucified, but the
witnesses offered in support of these claims are actually all talking about one and the
same victim, called “Cigo” (see annexes 129 and 132, statements of FJ and AD);
Mitnica
731. Witness statements produced by the Applicant in relation to Mitnica reveal that heavy
fighting was underway at the time, which was also the reason for negotiations between
Croatian and Serbian forces (see annexes 132 and 133, statements of AD and SR). All
Croats who were identified as victims in th e statement of MŠ died in the shelling (see
annex 124). Statement of MM (see a nnex 122), describing how Jovo Savi ć bragged
about killing Croats, was taken by Croatian Police while MM was in their custody and
accordingly have only limited evidentiary value.
Borovo Naselje
732. The Applicant alleges that at least 7 or 8 people were killed during the attack on the
Commerce building, but the statement of KO reveals that those pe ople died in the
fighting between Serbian and Croatian forces . The alleged killings were not mentioned
by other Croatian witnesses who were presen t or fought in the Commerce building (see
annexes 134 and 135).
733. Applicant further claims that 10 to 20 Croats were killed on Staji ćevo farm in Serbia.
This claim is based on the statement of only one witness, DK, who claims that he knows
that 10 to 20 people were ki lled. The witness, however, di d not give any details as to
how and by whom were those people killed, nor he was able to identify the victims, and
the one he did identify is actually a person who died a couple of weeks after the alleged
beating took place (see annex 138). The ot her witnesses who testified about Staji ćevo
did not mention this number of people killed on the farm (see annexes 134, 136 and
137). It should be noted here that the ICTY Prosecutor char ged Slobodan Miloševi ć
697
See annex 119, witness statement of VĐ.
243 with unlawful confinement, imprisonment and torture in connection to Croats who were
698
held on Stajićevo farm, but not for murder of any of the prisoners.
Central Vukovar
734. The Applicant’s allegation that 8 members of the Barkovi ć family were killed in the
Central Vukovar was not directly mentioned in the statement of witness VO, to which
the Applicant referred in support of its clai ms (see annex 131). The claims of witness
LjD concerning a pregnant woman whose st omach was cut open is hearsay evidence,
apparently based on something that her so n-in-law had told he r. It is neither
corroborated anywhere else nor mentioned by any ot her witness (see annex 143).
Similar, the statement of witness BR, w ho claims that he saw about 40 guardsmen
mutilated in a drainage ditch, is vague a nd not corroborated by other evidence. (see
annex 115).
735. In general, the witness statements which theApplicant produced as evidence are vague in
the part which describesthe alleged killings ad they never say wheredid the alleged killing
take place. In addition,they relate to captured Croatiadefenders and notto civilians.
Velepromet
736. Witnesses whose statements th e Applicant offered as eviden ce in support of its claims
concerning the alleged crimes in Veleprom et do not support the general claim of the
Applicant that 350 people were killed th ere (see annexes 121, 123, 147). Only witness
AH (annex149) claims that she saw more than a thousand corpses, but this statement is
obviously so unfounded that even the Applicant did not quote it in the Memorial.
737. Allegations contained in the document of a Croatian official body, annex 164, must be
corroborated by evidence from an independe nt source. The document alone cannot be
treated as reliable evidence because it has been generated by the Applicant.
698
ICTY, Milošević, IT-02-54-T, Indictment, paras. 63–66.
244738. Events in Vukovar were th e subject matter of the Mrkšić et al. case before the ICTY.
Although one of the accused in the case was Mile Mrkšić, at the time the commander of
the JNA Operational Group South (and thus po ssibly responsible for all the crimes in
Vukovar), the Prosecution did not charge him with any of the crimes that were allegedly
committed in Velepromet. The ICTY Tria l Chamber, however, discussed crimes
699
committed at Velepromet, even though they were not included in the Indictment. The
Trial Chamber found that 15 Croatian men have been found in a grave at the rear of
Velepromet, while Ivan Gruji ć testified that these persons were listed as having gone
missing between 18 and 21 November 1991. 700The Trial Chamber found that many, if
not all, of the persons res ponsible for the crimes were members of the Serb TO or
paramilitary units. 701The obvious discrepancy between the Applicant’s claims and the
ICTY Judgment clearly demonstrates how ex aggerated the Applicant’s claims that 350
people were killed at Velepromet actually are.
739. The Trial Chamber also addressed Mitnica, a part of Vukovar, refe rring to it as the
702
stronghold of Croatian forces. The Trial Chamber, however,did not mention any of the
killings alleged by te Applicant.
740. Finally, neither the ICTY Proseu ction nor the Trial Camber discussed the a lleged killings of
529 victims in the fighting between Croati an and Serbian forc es or 120 Croatian
civilians allegedly killed in the suburb of Sajmište. While the Respondent does not
dispute that many people died as a conseq uence of the fighting in Vukovar, it is
submitted that the Applicant has failed to produce credible evidence on the exact or
even approximate number of the people kille d, and in particular on whether the deaths
occurred as a consequence of a legitimate us e of force or from a criminal action of the
forces attacking Vukovar. Furthermore, the Applicant failed to specify how many of the
alleged victims were civilians and how many of them were combatants and, in addition,
failed to specify whether Serbs, who stay ed in Vukovar during the siege in large
numbers, are also included in the number of victims alleged.
699ICTY, Mrkšić et al., IT-95-13/1, Trial Chamber Judgment, 27 September 2007, para. 163
700Ibid., para. 165.
701Ibid., para. 167.
702ICTY, Mrkšić et al., IT-95-13/1, Trial Chamber Judgment, 27 September 2007, para. 54.
245741. It follows, thus, that the crimes alleged to have been committed in Vukovar are not
sufficiently supported by evidence submitted by the Applicant for the reasons explained
above. The ICTY has indicted several peopl e for the crimes allegedly committed in
Vukovar, but the number of d eaths for which the accused ar e charged is significantly
703
smaller than claimed by the Applicant. Furthermore, in the case against Mile Mrkši ć,
Veselin Šljivančanin and Miroslav Radi ć, the accused Mrkši ć and Šljivan čanin were
found guilty for aiding and abetting murder, torture and cruel treatment of 194 Croatian
prisoners of war at the Ov čara farm, but the Trial Cham ber found (and the Appeals
Chamber confirmed) that neitherthe joint criminal enterprise existed, nor that the crimes
committed at Ovčara, taking into consideration the statusof victims, could qualify even as
crimes against humanity, but only as vo ilations of laws and customs of war. 704
742. In any event, the Applicant has not shown th at if crimes were committed they were
committed with the genocidal intent or that the crimes or the alleged genocidal intent
can be attributed to the Respondent. For these reasons, the Respondent submits that the
Applicant’s allegations that the crime of genocide has been committed in Vukovar
should be dismissed in their entirety.
General observations in relation to Eastern Slavonia
743. The above analysis of the Applicant’s claims has shown that a number of these claims
are imprecise, based on hearsay evidence and statements of persons who did not have
direct knowledge of the events. Furthermore, a number of allegatio ns pertaining to
events in Eastern Slavonia are not corroborated by additional evidence.
744. As can be seen, the majority of the allegatio ns of killings in Eastern Slavonia relate to
the city of Vukovar. It was already explai ned that Vukovar was a place where fierce
fighting between Croatian and Serbian for ces took place. It is obvious that Croatian
forces were strong enough to inflict heavy losses on Serbian forces and that vast number
of Croat victims died as a result of the fighting. A si milar situation was common to
many places throughout Eastern Slavonia. In Bogdanovci, for example, many Croats
died in combat with the Serbian forces. A ccordingly, persons who lost their lives under
these circumstances cannot even theoretically be treated as victims of genocide.
703See ICTY, Milošević, IT-02-54-T, Indictment, paras. 49–60.
704ICTY, Mrkšić et al., IT-95-13/1, Trial Chamber Judgment, 27 September 2007, paras. 482 & 608; see also
Appeals Chamber Judgment, para. 44.
246745. As to the Vukovar casualties, the above an alysis has shown that the Applicant’s
allegations on the high numbers of Croats killed in Velepromet and other parts of
Vukovar are not supported by any evidence examined in the Mrkšić et al. case.
746. Most of the crimes alleged by the Applicant arenot even included in the indictments of the
ICTY Prosecutor. Thus, despite the fact th at the indictment against Slobodan Milošević
covers the whole of Eastern Slvaonia (and the whole of Croatifor that matter), and mentions
the majority of locations covered by the Memorial (Dalj, Bapska, Šarengrad, Tovarnik, Ilok,
Lovas and Vukovar), the ICTY Prosecu tor has not charge d Slobodan Milošević for the
majority of the killings that the Appltnalleges in relation to Eastern Slavonia.
747. Finally, the witness statements of thepAplicant, even if taken as reliabuod non) show that
most of the alleged crimes were committed by the forces of local Serbs and not by the
JNA. 705The issues of attribution and the rela tionship of those forces and the JNA are
addressed in Chapters V and IX. It should be stressed here , however, that the witness
statements offered by the Applicant contain verylittle, and mostly unreliable, evidence that
the paramilitary and local Serb forces acted unrhe directions or instructions of the JNA.
748. As a conclusion, it is submitted that the Appl icant has failed to prove that genocide had
been committed in Eastern Slavonia.
3. Response to the Applicant’s Allegations Concerning Crimes Committed in
Western Slavonia
PAKRAC MUNICIPALITY
(Memorial, paras. 5.15 – 5.27)
749. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Pakrac municipality, the Applicant alleges the following:
a) In Pakrac:
i. Abduction and alleged murder of 6 men on 7 September and 1
man on 14 September, all identifi ed (but not all listed within
22 names of persons exhumed in 1995);
705
For example see witness statements in relation to Tenja, Tompojevci, Lovas.
247 ii. Attack on a Croatian household on September 15 in Pakrac
which resulted in rape, torture and murder of one person (alias
provided) and detention of 4 persons;
iii. Murder of two more persons (named) on the same night;
iv. Attack on a Croatian house hold in course of which two
persons were killed (one name and one alias provided);
v. Murder of 22 Croatian civili ans whose bodies were exhumed
in 1995, who were, according to forensic analysis, killed at
close range (the 22 listed names include some victims listed in
previous incidents);
vi. Alleged killing of 49 persons whose bodies were exhumed in
the period from 1992 to 1998 (no names have been provided);
vii. Alleged killing of the total of 176 civilians in the municipality;
b) In Veberov Sokak (suburb of Pa krac), murder of 4 and wounding
of 2 people (all identified) on 15 December;
c) In Kusonje:
i. Killing of 21 soldiers (not all identified), a number of whom had
been tortured prior to dying (6 persons identified);
ii. Killing of 3 persons and wounding of 11 when giving tribute to
soldiers killed in 1993.
750. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes 172 – 185, th e list of dead civilians in Pakrac and a
706
video record of the exhumation. The witness statements offered by the Applicant do
707
not fulfill the minimum evidentiary requirements of affidavit. These documents are
accordingly inadmissible.
706Report of the MOI Bjelovar on events that took place on Sept. 15 (annex 181); ‘Dead Civilians in the former
municipality of Pakrac’, Memorial, Annexes, Vol. 2(II ), annex 240 and VHS/280192/III-8, Video record of the
exhumation, autopsy and identification.
707None of them contains either an oath or a solemn promise that the truth has been stated. The copies of the
original witness statements contained in annexes 172, 175, 177, 178, 179, 180, 182, 183, 184 & 185 do not
contain signatures of persons who allegedly gave those statements. In annexes 177, 180 & 185 there is no
signature of person(s) who took those statements, while in annexes 176, 180 & 185 it is even not visible who a
person or body who took the statements was.
248751. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims. The Applicant’s allegation about 176 Croats killed in the Pakrac
municipality is based on the document “Dead Civilians in the Former Municipality of
Pakrac” (annex 240) that does not provide su fficient information on the circumstances
under which the alleged killi ngs occurred. Similarly, in relation to the 49 exhumed
bodies no evidence was offered that would confirm the Applicant’s allegation that the
cause of death was shooting from close range, and there is equally no information as to
the circumstances surrounding the killings or the alleged perpetrators.
752. Only four witnesses: SP* (annex 173), AP* (no. 174), MZ (annex 179) and MV (annex
180) seem to have some direct knowledge about the murders. However, their statements
pertain only to two events, that of 15 Sept ember and 15 December. Other statements of
persons who apparently had di rect knowledge of the allege d incidents are those of the
alleged perpetrators – MK (annex 176) and M Đ (annex 182), given to the Croatian
Police without involvement of the judiciary organs, which makes them inadmissible. In
addition, the statement of witness MK is so short and unclear th at it cannot even be
analysed, since it lacks most of the basic information about the events in question.
753. The list of 176 names containe d in the annex entitled “Dea d Civilians in the former
municipality of Pakrac” (Annexes, Vol. 2(II), annex 240) c ould also include names of
persons of non-Croatian nati onality. The document contai ns insufficient information
regarding the manner in which the listed persons lost their lives. In many cases, there is
absolutely no information on how a particular person died orhow that persons’ death can be
linked to thiscase.
754. In addition, the allegations contained in the annex “Dead Civilians in the former
municipality of Pakrac” have to be supported by an independent source; this document
cannot be treated as reliable evidence by itself, since it was generated by the Applicant.
755. The crimes alleged to have been committe d in Pakrac are not sufficiently supported by
evidence presented by the Applicant for the reasons explained above. The ICTY has
neither indicted nor sentenced anyone with respect to the alleged crimes in Pakrac. In
any event, the Applicant has not shown that if crimes were committed they were
committed with genocidal intent, or that the crimes or the alleged genocidal intent can
249 be attributed to the Respondent. For these reasons, the Respondent submits that all of
the Applicant’s allegations relating to Pakrac should be dismissed in their entirety.
PODRAVSKA SLATINA
(Memorial, paras. 5.28 – 5.49)
756. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to the Podravska Slatina municipality the Applicant alleges the following:
a) In Voćin:
i. Detention and torture of 5 persons on 14 and 19 August
(names provided);
ii. Abduction, detention and ma ltreatment of 35 men in
September 1991 (names not provided), out of whom 15
were allegedly also subjected to forced labour (names not
provided);
iii. Killing of four Croats on 3 December (names of victims
provided);
iv. Disappearance of one person (name provided) on September
18; torture and brutal murder of one person (no name or
date provided);
v. Abduction of 35 persons from 12 to 14 December, these people
are allegedly still missing (no names provided);
vi. Murder of 3 identified persons in the same time period;
b) In Hum:
i. Apprehension of one person (named) on 23 August, the person
was allegedly later taken to Voćin and murdered there;
ii. Abduction, detention, and torture of 2 Croats, one of whom
was allegedly slaughtered (names provided) on 24 August;
iii. Arrest of one person (named) on September 1991 and his
alleged disappearance;
iv. Murder of 4 men on 13 December 1991 (names provided).
c) In Ćetekovac:
250 i. Capture of 12 persons, who were later used as human shields
(one person named), September 1991;
ii. Murder of two persons,
iii. One person allegedly beaten to death (named), September
1991;
iv. Killing of “a number” of Croatian civilians from an ambush,
names of 7 victims provided.
d) In Balinci:
i. Murder of 20 civilians and 2 police officers in Balinci and
Ćetekovac, 10 names provide d (allegedly killed on 5
September);
ii. Murder of one unnamed person on 4 September.
e) In Donji Čaglić, murder of 10 civilians on 2 October 1991. 708
757. Evidence offered by the Applicant in support of these claims are witness statements
contained in annexes nos. 186-210, 212-213 a nd 215; books “The Anatomy of Deceit”
and “Mass killing and genocide in Croatia”, the newspaper article “Chronology of War”,
the document “War Crimes of the Serbian Military and Paramilitary Forces in Western
Slavonia and Banovina 1991-1995" and one video cassette recording of the 4 September
709
events. As far as the witness statements offered by the Applicant are concerned, they do
not fulfill the minimum evidentiary requirements of affidavit 710and are accordingly
inadmissible.
758. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims. The great majority of statements contain only hearsay evidence.
708See Memorial, para. 5.48
709
The Anatomy of Deceit, Dr. Jerry Blaskovich, Modern Times; Chronology of War, HIC, Zagreb 1998, p. 350,
– segment from the newspaper article, interview with the refugee Pero Ajki ć from Vo ćin and an anonymous
person from Vo ćin; “War Crimes of the Serbian Military and Pa ramilitary Forces in Western Slavonia and
Banovina 1991-1995"; VHS/050991/III-ll, No 155, (According to the App licant the video cassette is alleged
recording of the killings of several Croats who tried toescape the village perpetrated by the paramilitaries and the
video cassette is at the disposal of the Office for the Cooperation with International Court of Justice and the ICTY);
the book “Mass killing and genocide in Croatia 1991/92”.
710The copies of the original witness statements contained in annexes nos. 187 - 195, 201, 202, 205 – 210, 212,
213 and 215 do not even contain signatures of persons who allegedly gave those statements. In annexes nos. 194,
195, 203, 207, 208, 209, 210 and 212 there is no signature of person(s) who took those statements, while in
annexes nos. 194, 195, 196, 207, 208, 209 and 210 it is even not possible to see who a person or body who took
the statements was.
251759. With respect to Voćin, six witnesses provided direct test imonies regarding some of the
alleged events in the village. 711 All the other witnesse s had only second-hand
knowledge of the events.
760. With respect to Hum, only two witnesses provide direct testimony about the alleged
events. Other witnesses only testify about the overall conditions in Hum at the time and
712
give hearsay evidence on the alleged crimes.
761. With respect to Ćetekovac, witnesses ĐI (annex no. 208) and MB (annex no. 209)
provide direct knowledge about 5 murders (ĐI about 4 and MB about one). However, as
admitted also by the Applicant, there are no witness statements in support of the alleged
massacre of persons whose names should be listed in the document "War Crimes of the
Serbian Military and Param ilitary Forces in Western Sl avonia and Ba novina 1991-
1995". 713
762. With respect to Balinci, the Applicant does not provide sufficient evidence in support of
its allegations on the events. Namely, witn ess MB (annex no. 210) provides names of a
number of persons killed in Balinci, in cluding her husband, but gives no first hand
knowledge as to how they lost their lives. The same applies to witness AM (annex 211).
Witness MK (annex 202) provides hearsay ev idence on a number of killings in Balinci,
but gives no names of the alleged victims.
763. The Allegations contained in the book “The Anatomy of Deceit” by Dr. Jerry Blaskovich
are based on the second-hand knowledge of th e events. The document “War Crimes of the
Serbian Military and Paramilitary Forces in Western Slavonia and Banovina 1991-1995”
was produced by a party that cannot be regardedas neutral in the present case and, in any
case, contains onl y hearsay evidence. Newspaper ar ticle “Chronology of War” also
contains only hearsay evidence.
711
Witnesses KT (annex no. 196) and ID (no. 197) confirmed that Branko Ili ć was taken away on 14.08.1991.
Witness FD (annex no. 186) testified about maltreatment and beatings he was subjected to. Witnesses MS (annex
no. 190), MP (no. 192), VS (no. 193) and JT (no. 199) testified about the destruction of the Voćin church.
712In relation to Hum witness statements of NI (annex no.201), MK* (annex no. 202), IK (annex no. 203), AŽ
(annex no. 204), MB (annex no.205).
713The cited document “War Crimes of the Serbian Military and Paramilitary Forces in Western Slavonia and
Banovina 1991-1995” was not attached to the Memorial.
252764. The allegations contained in the document “List of Killed Persons” (annex no. 241),
originates from a Croatian official body. They must be proved by evidence from an
independent source and this document cannot be treated as reliabl e evidence by itself,
since it was generated by the Applicant.
765. The Trial Chamber in the Milošević case dealt with the events in broader area of Vo ćin.
Milošević Indictment alleged that 32 Croats were killed and the alleged perpetrators
were identified as volunteer units – "Šešelj’s men" and "White Eagles". 714The other
crimes alleged by the Applicant to have occurred in the Podravska Slatina municipality
are, however, not covered by any judgment or an indictment of the ICTY.
766. It follows thus that the crimes alleged to have been committed in Podravska Slatina
have not been sufficiently supported by evidence submitted by the Applicant. The
Applicant has not shown that if crimes we re committed they were committed with the
genocidal intent or that the crimes or the alleged genocidal intent can be attributed to the
Respondent. For these reasons, the Respondent submits that all of the Applicant’s
allegations relating to Podravska Slatina should be dismissed in their entirety.
DARUVAR
(Memorial, paras.5.50 – 5.64)
767. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Daruvar municipality, the Applicant alleges the following:
a) In Đulovac:
i. Capture, detention and torture of 23 civilians and disappearance
of 11 civilians (names provided) who were previously
incarcerated and tortured;
ii. Killing of one person on 7 September 1991;
iii. Killing of the Blazan family in December (names provided);
iv. Murder of “at least” 10 civilians in December (names provided)
by the paramilitaries.
714
ICTY, Milošević, IT-02-54-T, Indictment, para. 39.
253 b) In Doljani:
i. Killing of four civilians in the attack on 16 September 1991
(names provided),
ii. Multiple rape of one woman.
c) In Vukovije, murder of 3 civilians on 19 November (names provided).
d) In Veliki Miletinac, murder of 3 civilians on and after 23 September
1991 (names provid ed), and incarceration nd torture of one person.
768. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes nos. 216-230. These witness statements do not fulfill
the minimum evidentiary requirements of affidavit 715and are accordingly inadmissible.
769. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims.
770. With respect to Đulovac, only some cases of torture of civilians and the murder of the
Blazan family is supported by direct evidence of witnesses BB (annex no. 219), SA*
(annex 220) and FS (annex 223). However, witnesses BB (annex 218), and FS (annex
223) testified that local Serbs were detained and tortured along with local Croats, in the
same facilities. Witness BB furthermore stated that two Serbs were killed after having
been tortured along with Croats. The othe r crimes alleged by the Applicant are not
corroborated by direct evidence, but only by hearsay evidence and speculations.
771. With respect to Doljani, witnesses IM * (annex no. 224) and AK* (annex 226) provide
direct accounts of some of the events, but offer no information on the perpetrators of the
crimes they witnessed. The rest of the testimonies contain only second-hand knowledge.
772. With respect to Vukovije, all witnesses had direct knowledge only about the plunder and
destruction of personal property (witnesse s JK (annex 227), MO (annex 228) and MH
(annex 229)). Witnesses MO and MH testified that they were involved in the burial of
some people, but gave noinformation as to howthose people were killed.
715
The copies of the original witness statements contained in annexes nos. 217, 218 and 221 do not even contain
signatures of persons who allegedly gave those statemen ts. Statements in annexes nos. 216, 217, 218 and 221
were taken by the police organs and without the involvement of the judges or prosecutor.
254773. The crimes alleged to have been committed in the Daruvar municipality are not
sufficiently supported by evidence provided by the Applicant for the reasons explained
above. The ICTY has neither indicted nor se ntenced anyone with respect to the alleged
crimes in Daruvar. In any event, the App licant has not shown that if crimes were
committed they were committed with the genoci dal intent or that the crimes or the
alleged genocidal intent can be attributed to the Respondent. For these reasons, the
Respondent submits that all of the App licant’s allegations relating to Daruvar
municipality should be dismissed in their entirety.
General observations in relation to Western Slavonia
774. The Evidence presented by the Applicant inu spport of its allegatis pertaining to Western
Slavonia is to a large extent similar to the evidence produced for other events covered by
the Memorial. For the reasons stated in the introductory part of this Chapter, this evidence
(mainly witness statements and document produc ed by the Applicant) should be treated as
inadmissible by the Court. Furthermore, the above analysis of the Applicant’s claims has
shown that a number of thos e claims are imprecise, based on hearsay evidence and
statements of persons who did not hv ae direct knowledge of the events.
775. Most of the crimes alleged by the Applicant are not even included in the indictments of
the ICTY Prosecutor. Thus, despite the f act that the indictment against Slobodan
Milošević covers the whole of We stern Slavonia (and the w hole of Croatia for that
matter), the ICTY Prosecutor di d not charged Slobodan Milošević with the majority of the
killings and the other crimes that the Appliant alleges in relation to Western Slavonia.
776. Even if all of the Applicant’ s allegations are to be taken as accurate, it is obvious that
the alleged killings in Western Slavonia we re perpetrated on a random basis and over a
longer period of time, which only points to the absence of any genocidal intent on
behalf of the perpetrators. Furthermore, most of the witnesses identify as perpetrators of
those crimes voluntary units and local Serbs, for whose actions the Respondent incurs
no responsibility. The involvement of the JNA in the killings is mentioned on only three
occasions, but the evidence offered in support of these claims is very vague.
255 716
4. Response to the Applicant’s Allegations Concerning CrimesCommitted in Banija
GLINA
(Memorial, paras. 5.78 – 5.93)
777. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Glina municipality the Applicant alleges that following occurred:
a) In Glina:
i. Torture of 16 officers on 26 June 1991;
ii. Killing or disappearance of 18 Croats (not identified);
iii. Discovery of two dead Croats in August 1991 (names provided).
b) In Novo Selo Glinsko:
i. Killing of one Croat on 26 September 1991;
ii. Killing of 32 Croats on 2 October 1991.
c) In Joševica:
i. Killing of three Croats on 5 November 1991 (names provided);
ii. Killing of 21 Croats on 16 December 1991;
iii. Killing of four Croats during 1992 (names provided).
d) In Gornje and Donje Jame:
i. Killing or disappearance of 30 Croats in the village of Jame
(names not provided);
ii. Killing of 14 Croats on 3 October 1991 (names provided);
iii. 11 disappearances on 11 December 1991 (names provided).
e) In Skela:
i. Killing of 10 Croats (no name provided);
ii. 7 disappearances (no name provided).
778. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes nos. 247 -266. In addition, the Applicant submitted
several domestic court records, the book “Mass killing and genocide inCroatia” and a list
of banished, killed and missnig persons compiled bythe Republic of Croatia. 717
716
717Banovina, in Croatian.
The book “Mass killing and genocide in Croatia 1991/92, p. 126”; Specifications of the Banished, Killed and
Missing Persons from the area of Municipality of Glina, 23 June 1993 Annexes, vol 2(II), annex 321; Record
256779. Witness statements offered by the Applican t do not fulfill the minimum evidentiary
requirements of affidavit. 718These documents are accordingly inadmissible.
780. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims.
781. Glina – The Applicant did not provide the names of 17 Croats who were allegedly killed
in Glina or with the details on how they di ed. The allegation is based solely on the
report made by the internal organs of the Applicant (see annex no. 321). The statement
of witness AB, which relates to events in the village Maje, lacks details in relation to the
alleged discovery of two bodies, circumst ances under which they were killed, or
possible perpetrators (see annex no. 250).
782. Novo Selo Glinsko – The Applicant offered very littl e detail regarding the alleged
killing of 32 Croats from Novo Selo. Witnesses that gave statements about these events
only testified to hearing th e shooting and explosions an d having subsequently heard
stories that the villagers were killed (see annexes nos. 253, 254, 255).
783. Joševica – The majority of the statements concerning the alleged killings on 5
November do not contain direct knowledge a bout the killings of Kreštalica family but
only assume that the perpetrators were lo cal Serbs (see witness statement of PM* in
annex no. 259). On the other hand, one of the w itnesses said that Gina Kreštalica, who
was a victim, was a Serb and that this was told to the perpetrators who wanted to steal
her husband’s car. She was also killed on the spot irrespective of her Serbian ethnicity
(see annex no. 263). The killing of four Cr oats, allegedly committed in 1992, is not
supported by any detailed information (see annex no. 264).
of the District Court in Sisak from 13 March 1996, Annexes, vol 2(II), annex 322; Judicial Document
Annexes, vol 2(II) annex 323; Record of the Municipal Court in Sisak–9 August 1996., Annexes, vol 2(II)
annex 324 and 325 and Record of the District Court in Sisak on the exhumation of the mortal remains in Donje and
Gornje Jame from 22 April 1996, 27 April 1996 and 20 September 1996, Annexes, vol 2(II), annexes 326, 327, 328.
718None of them contains either an oath or a solemn promise that the truth has been stated; 19 out of 20 copies of
the original witness statements contained in annexes nos. 247–266 do not even contain signatures of persons who
allegedly gave those statements; in annexes nos. 247, 248, 249, 250, 251, 258, 259, 260, 263, 265 and 266 there
is no signature of person(s) who took those statements; while in annexes nos. 247, 248, 249, 250, 251, 258, 259,
260, 261, 263 and 266 it is even not possible to tell who was a person or body that took the statements.
257784. Gornje i Donje Jame – The killing of Croats from the village of Jame on 3 October was
described by witness JF. The witness identified the perpetrators as members of the
“Šiltovi” paramilitary unit, led by a local Serb Siniša Marti ć. Furthermore, witness JF
said that a Serb Gojko Pavlović was killed together with the Croats (see annex no. 265).
The same witness thinks that “Šiltovi” were also responsible for the disappearance and
the subsequent killing of 11 Croats on 11 December. The witness, however, has no
direct knowledge of the event and states only her assumptions.
785. Skela– In relation to the village of Skela and the alleged killing of at least 10 Croats, the
only evidence offered by the Appilcant in supportof these claims isthe book “Mass killings
and genocide in Croatia”. TheApplicant has not prov ided the names of the alleged victims,
the dates when they were a lleged to have been killed, nor the name s of the alleged
perpetrators. The statement of witness ZR, whic h possibly relates to the same events, is so
short and vague that it cannot be taken aseliable evidence (ee annex no. 266).
786. The Allegations contained in the document of the Croatian official body (annex no.
321) must be proved by evidence from an independent source.
787. The crimes alleged to have been committed inGlina have not been sufficiently supported
by evidence submitted by the Applicant for th e reasons explained above. The ICTY has
neither indicted nor sentenced anyone with respect to the alleged cr imes in Glina
municipality. In any event, the Applicant has not shown that if crimes were committed they
were committed with the genocidal intent or th at the crimes or the alleged genocidal intent
can be attributed to the Respondent. For these reasons, the Respondent submits that all of
the Applicant’s allegatins relating to Glia should be dismissed in their entirety.
PETRINJA
(Memorial, paras. 5.94 – 5.101)
788. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Petrinja municipality the Applicant alleges that following occurred:
a) In Petrinja:
i. Killing of many civilians during the attack on 16 September 1991
(no names provided);
ii. Execution of 19 captured Croat fighters (names provided in the
exhumation report).
258 b) In Kraljevčani:
i. Killing of five Croats on 15 August 1991 (names provided);
ii. Random maltreatment and looting, and one instance of rape.
c) In Glinska Poljana:
i. Killing of 13 Croats in 1992 (names provided);
ii. Disappearance of 6 Croats.
789. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes nos. 267 - 272. The Applicant also submitted the book
“Mass killings and genocide in Croatia”, two investigative records of Croatian courts and
the document entitled“Survey of the Documentation of Mr. Grujć i Managed by the Office
for Detained and Missing Persons of the Government ofthe Republicof Croatia”. 719 The
witness statements submitted by the Applican t do not fulfill the minimum evidentiary
720
requirements of affidavit and are accordingly inadmissible.
790. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims.
791. Petrinja – The claims of the Applicant concerni ng Petrinja are imprecise as to the
number of people killed or the circumstances in which they lost their lives. The witness
statements offered in support of these claims show that heavy fighting occurred between
Serb and Croatian forces over the town of Petrinja (see annexes 267 and 268).
792. Kraljevčani – The evidence produced by the Applicant in relation to the alleged killing
in Kraljevčani on 15 August does not contain precise information on the circumstances
under which the deaths occurred or on the perpetrators (see annexes 269, 270 and 271).
719The book “Mass killings and Genocide in Croatia 1991/92”; Record of the Investigation Department of the
District Court in Sisak from 14 September 1995, Memorial, Annexes, Vol. 2(II), annex 330; Official Note and
Record of Investigation from 2 October 1992, Memorial, Annexes, Vol. 2(II), annex 331; Survey of the
documentation of Mr. Grujić managed by the Office for Detained and Missing Persons of the Government of the
Republic of Croatia, Memorial, Annexes, Vol. 2(II), annex 332; List of missing persons in the Office for Detained
and Missing Persons from 12 July 1996, Vol. 2(II), annex 332.
720Namely, none of the six copies of the original witness statements contained in annexes 267–272 contain
signatures of persons who allegedly gave those statements. None of the six statement found in annexes 267–272
contain signature of person(s) who took those statements and in annexes 267, 268, 269, 270 & 271 it is even not
visible who a person or body who took the statements was.
259793. Glinska Poljana– The witness statements submitted in support of the Applicant’s claims of the
killings in Glinska Poljana contain hearsay and diect evidence about the events. According to
witness ID, the killings were perpetrated byeth members of the “Šiltov ”iparamilitary unit, but
the witness has no direct knowledg about the events (see annex 272).
794. The allegations contained in the docume nt of Croatian offi cial body (annex no. 331)
must be proved by evidence from an inde pendent source; the documents themselves
cannot be treated as reliable because they were generated by the Applicant.
795. The crimes alleged to have been committed in Petrinja have not been sufficiently supported
by evidence submitted by the Applicant for the reasons explained above. The ICTY has
neither indicted nor sentenced anyone with re spect to the alleged crimes in Petrinja
Municipality. In any event, the Applicant has not shown that if crimes were committed they
were committed with the genocidal intent or th at the crimes or the alleged genocidal intent
can be attributed to the Repsondent. For these reasons, the Reso pndent submits that all of the
Applicant’s allegations relantig to Petrinja should be simissed in their entirety.
DVOR NA UNI
(Memorial, paras. 5.102–5.109)
796. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Dvor na Uni municipality the Applicant alleges that following occurred:
a) In the villages Dvor na Uni, Zamla ča and Struga Banska, killing of
nine Croats on 26 June 1991 (six names provided).
b) In Divuša killing of three Croats in August 1991 (names provided).
c) In Kozibrod, Unčani and Gvozdansko killing of 7 Croats from August
to October 1991 (names provided).
797. Evidence offered by the Applicant in support of these claims are witness statements
contained in annexes nos. 244, 273–282 and the book “Mass k illings and genocide in
Croatia”. The witness statements do not fulfill the minimum evidentiary requirements of
affidavit721 and are accordingly inadmissible.
721
None of the six copies of the original witness statements contained in annexes 267–272 contain signatures of
persons who allegedly gave those statements. None of the six statement found in annexes 267–272 contain
signature of person(s) who took those statements while in annexes 267, 268, 269, 270 & 271 it is even not visible
who a person or body that took the statements was.
260798. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims.
799. Dvor na Uni – The evidence offered by the Applicant is unclear as to the identity of the
three members of the Croatian police who we re included in nine allegedly killed, as
well as to who the perpetrators of those ki llings were (see annex 274). The description
of the events, as given in the Memorial, s hows that fighting between Croatian and Serb
forces took place in Dvor na Uni and that Croats, like witness TB, had weapons when
they were arrested (annex no. 275).
800. Divuša – Witness statement of LjV in relation to the killing of Ankica and Jura Jugović
is based on information obtained from a th ird source and does not contain information
about the circumstances surrounding the event (see annex no. 282).
801. The claims on the alleged crimes in other locations in the Dvor na Uni municipality
(namely Unčani and Gvozdansko) are supported only by the book “Mass killing and
Genocide”. The claims on the alleged killi ngs in Kozibrod are not supported by the
evidence to which the Applicant referred, since the witness statement of JS (annex 279)
actually places these killing in Divuša, but offers no details about the alleged events.
802. The crimes alleged to have been committed in Dvor na Uni have not been sufficiently
supported by evidence submitted by the Applicant for the reasons explained above. The
ICTY has neither indicted nor sentenced anyon e with respect to th e alleged crimes in
Dvor na Uni municipality. In any event, the Applicant has not shown that if crimes were
committed they were committed with genocidal intent or that the crimes or the alleged
genocidal intent can be attributed to the Respondent. For these reasons, the Respondent
submits that all of the Applicant’s allega tions relating to Dvor na Uni should be
dismissed in their entirety.
261 HRVATSKA KOSTAJNICA
(Memorial, paras.5.110–5.122)
803. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Hrvatska Kostajnica municipality the Applicant alleges that following occurred:
a) In Hrvatska Kostajnica killing of two Croats on 13 September 1991;
b) In Baćin killing of 60 Croats on 28 October 1991;
c) In Kostrići killing of 15 Croats on 19 November 1991 (names provided).
d) In Kostajnički Majur:
i. Killing of two Croats at the beginning of August 1991;
ii. Disappearance of five Croats on 7 October 1991 (names
provided);
iii. Killing of four Croats on 14 October 1991 (names provided);
iv. Killing of five Croats in November 1991;
v. Disappearance of two persons (names provided).
e) In other locations mentioned by th e Applicant (villages of Stubalj,
Graboštani, Panjani, Cerovljani , Hrvatska Dubica and Predore)
killing of 21 Croats in the period from September 1991 to January
1992 (names provided).
804. The evidence produced by theApplicant in support of theseclaims are witness statements
contained in annexes nos. 282B- 296. In addition, the Applicant submitted the book
“Mass killings and genocide in Croatia”, listof missing persons, two reports on killed and
missing persons in the Munici pality of Hrvatska Kostajnica, one record of exhumation
and one information document, all of which documents were created by organs of the
722
Croatian Government. The witness statements offered by the Applicant do not fulfill
the minimum evidentiary requirements of affidavit and are accordingly inadmissible.
722
The book “Mass killings and genocide in Croatia 1991/92”; List of missing persons from the Hrvatska
Kostajnica municipality issued by the Commission of the Hrvatska Kostajnica municipality on 1 March 1993,
Annexes, vol 2(II), annex 333; The record of the investigative exhumation conducted from 13 March until 1
April 1997 on the location of Hrvatska Dubica – Skelište, Annexes, vol 2(II), annex 334; Report of the Killed and
Missing Persons in the Municipality of Hrvatska Kostajnica-Kostri ći, Annexes, vol 2(II), annex 335; Report of
Killed and Missing Persons in the area of Hrvatska Kostajnica Municipality-Kiki Majur, Annexes, vol 2(II),
annex 336 and Information Document District of Sisak-Moslavina from 7 July 1993, Annexes, vol 2(II), annex 337.
72None of the fifteen copies of the original witness statements contained in annexes nos. 282B- 296 even contain
signatures of persons who allegedly gave those statshe statements found in annexes nos. 282b, 284, 285, 287,
288, 289, 290, 291, 292 and 294 do not contain signatureon(s) who took those statements while in annexes nos.
282b, 285, 287, 288, 290, 291 and 292 it is even not visible who a person or body who took the statements was.
262805. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims.
806. Witness statements offered by the Applicant in relation to the killings in the village
Kostrići are not based on direct knowledge and do not contain information as to how
and by whom the victims were killed (see annexes nos. 285 and 286).
807. In relation to Kostajnički Majur, the witness statements offered by the Applicant contain
names of the Croats killed in October and November 1991, however only statement of
MG (annex 287) contain direct knowledge a bout the killing of one person while other
statements do not contain the description of the circumstances surrounding the other
killing or any information onthe potential perpetrators (seeannexes nos. 288 and 289).
808. In relation to the villge of Stubalj, the names of the vicitms were also provided, but not the
circumstances surrounding their killing, and the witness only heard that the perpetrators
were local Serbs (see annex no. 290). Th e claim on the murder of Petar Vuj čić is not
supported by either of the two witness s attements to which the Applicant referred.
809. In relation to Cerovljani, the witnesses again did not have any direct knowledge about the
alleged crimes, but they only saidthat they had heard from othe rs that the perpetrators were
local Serbs (see annexno 293, also see statement ofAB annex no. 294).
810. Hrvatska Dubica– The witnesses referred to by the Applicant (TK, annex no. 295, and JJ,
annex no. 284) did not have direct knowledge on the alleged killings in Hrvatska Dubica
and they only heardthat the perpetratorswere local Serbs.
811. The allegations contained in documents ofe thCroatian official bodeis (annexes nos. 333, 335
- 337) must be proved by evidence from an independent source; the documents themselves
cannot be treated as reliable evidence becaus teey have been generated by the Applicant.
812. The events in Hrvatska Kostajnica municipa lity were dealt with by the ICTY in the
Martić case. The Judgment of the Trial Chamber addressed th e killings th at followed
the detention of people in a fire st ation in Hrvatska Dubica and in Kre čane near
724 725
Baćin. The Trial Chamber found that 41 Croats were killed on 20 October 1991.
724
ICTY, Martić, IT-95-11-T, Trial Judgment, 12 June 2007, paras. 181–182.
263 The Trial Chamber also found that 13 Croats fr om village of Cerovljani were killed in
October 1991. 726 In addition to that, the Trial Ch amber found that 31 villagers from
Baćin were killed sometime in October 1991. 727
813. In any event, the Applicant has not shown th at if crimes were committed they were
committed with the genocidal intent or that the crimes or the alleged genocidal intent can be
attributed to the Respondent. For these reas ons, the Respondent submits that all of the
Applicant’s allegato ins relating to Hrvatska Ko stajnica should be dismissed in their entirety.
General observations in relation to the area of Banija
814. As is the case with other areas, the evidence submitted by the Applicant in support of
the alleged crimes in Banija should be declared inadmissible due to the reasons stated in
the introductory remarks.
815. Even if all of the Applicant’ s allegations are to be taken as accurate, it is obvious that
the alleged killings in Banija were perpetrated 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 random nature of the acts strongly implies that they were
not part of a genocidal plan or policy imputable to the Respondent.
816. Most of the crimes alleged by the Applicant are not even included in the indictments of
the ICTY Prosecutor. Thus, despite the fa ct that the indictment against Slobodan
Milošević covers the whole of Banija (and the whole of Croatia for that matter), the
ICTY Prosecutor did not charge Slobodan Miloševi ć with the majority of the killings
and the other crimes that the Applicant alleges in relation to this region.
817. The events in Banija were also examined by the ICTY in the Martic case. After
examining the alleged crimes, including thos e in the area of Banija, the Tribunal
concluded that they did not fulfill the requirements of extermination as crimes against
humanity. Namely, the Trial Chamber noted that the element of crimes against
humanity requiring that the killings be committed on a large scale had not been met. 728
725Ibid., para.183.
726Ibid., paras. 187–188.
727Ibid., paras. 189–191.
728Ibid., para. 404.
264818. In the same case, the Prosecutor in the alternative argued that, should the Trial Chamber
not find that extermination had taken place based on the accumulation of all killings that
Martić was charged with, it should at least be declared that the killings committed in
Baćin, a place in Banija, ammounted to exte rmination in their own right. The Trial
Chamber, however, rejected the Prosecutor’s arguments and found that the killings
committed at Kre čane near Ba ćin do not meet the requirement of massiveness
729
associated with extermination.
819. With respect to the issue of the Respondent’s responsibility for the alleged crimes, most
of the witnesses identified as perpetrators of those crimes voluntary units of local Serbs
or forces of the RSK, for whose actions the Respondent bears no responsibility.
820. The Applicant alleges the invol vement of the JNA in the alleged crimes in Glina.
However, according to the witness statement of ŽL (annex no. 247), paramilitary forces
and local population were those ones who committed the crimes, while the JNA units
were helping the Croats at that particular time. The Applicant did not offer any proof
that would support the JNA invol vement in the alleged killings in Novo Selo, Joševica,
Gornje and Donje Jame, and Skela.
821. With regards to the Petrinja municipality, the Applicant alleges the involvement of the
JNA in fighting around villages in Petrinja, but does not provide evidence that the JNA
was involved in the killings or other alle ged crimes. Hence, the Applicant does not
claim that the JNA was involved in the killings either in Petrinja or in Glinska Poljana,
while it states that killings in Kraljev čani were committed by paramilitaries and that
JNA supervised the burials. Similarly, in relation to Dvor na Uni municipality, the
evidence submitted by the Applicant, namely witness statements, identify members of
730
the local population as the perpetrators of crimes that took place. Finally, in relation
to the Hrvatska Kostajnica municipality, the JNA involvement is mentioned only in
relation to the village of Kostajnički Majur, and only in relation to the fighting over the
village, but not in relation to the alleged kil lings that were, according to the witnesses,
perpetrated by the paramilitaries.
729
730Ibid., para. 405.
See annexes 278 and 280.
2655. Response to the Applicant’s Allegations Concerning Crimes Committed in Kordun
and Lika
VRGINMOST
(Memorial, paras. 5.138 – 5.140)
822. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Vrginmost the Applicant alleges the murder of two inhabitants of the village Crna
Draga which occurred after October 1991 (names provided).
823. The evidence submitted by the Applicant in support of these claims are witness
statements contained in annexes nos. 341-343. These witness statements do not fulfill
the minimum evidentiary requirements of affidavit 731 and are accordingly inadmissible.
824. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims. Two witnesses who provi de accounts of the killing of the Britvec
family in Crna Draga (witness IB, annex no. 341, and S Č, annex no. 342) do not have
direct knowledge as to how the victims died a nd they also point to different persons as
responsible for the killings.
825. The Applicant’s claim concerni ng the involvement of the J NA in the forced expulsion
of civilians from Selo Lasinjsko and Lasinja is not supported by the evidence submitted
by the Applicant, since witness RM (annex no. 343) is not clear were there any fighting
in the villages, he speaks of the RSK forces and his testimony in general pertains to the
time period after 20 March 1992.
826. The crimes alleged to have been committed in Vrginmost have not been sufficiently
supported by the evidence submitted by the App ilant for the reasonsexplained above. The
ICTY has neither indicted nor sentenced anyo ne with respect to the alleged crimes in
Vrginmost. In any event, the Applicant has not shown that if crimes were committed they
were committed with the genocidal intent or th at the crimes or the alleged genocidal intent
can be attributed to the Respondent. For these reasons, the Respondent submits that all of
the Applicant’s allegatins relating to Vrginmost shouldbe dismissed in their entirety.
731
Namely, none of them contains either an oath or a solemn promise that the truth has been stated, nor do they
contain signatures of persons who allegedly gave the statements. Finally, all three statements were taken by
police organs and without the involvement of a judge or a prosecutor.
266 SLUNJ
(Memorial, paras. 5.141 – 5.147)
827. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to the Slunj municipality the Applicant alleges that the following had occurred:
a) In Lipovača:
i. Physical and psychological torture o remaining Croats in the village;
ii. Murder of 7 civilians on 28 October 1991 (names provided);
iii. Murder of 5 civilians on New Year’s eve (names provided).
b) In Lađevac:
i. Exposure of remaining inhabitants ts oystematic looting and violence;
ii. Alleged murder of 7 persons (names provided);
iii. Murder of 12 persons in the period beginning with October 1992
through to June 1993 (names provided);
iv. Sexual harassment of one women a nd murder of one person who
intervened (names and alias provided),
v. Murder of 2 persons whose bodies were exhumed along with the
bodies of the above noted persons (names provided).
c) In Arapovac, the alleged disappearance of one person (name
provided).
d) In Gornji Popovac, the rape of 2 women in 1993 (alias name
provided for one).
e) InGornji Furjan, the murder of 6 persons in April 1992 (names provided).
828. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes nos. 344–357 and exhumation records contained in
annexes 416, 418 and 419. 732 The witness statements do not fulfill the minimum
evidentiary requirements of affidavit 733 and are accordingly inadmissible.
732Record of Exhumations on 16 t, 17 , 18 and 19 lhJune 1997, Annexes, vol 2(III), annex 416; Record of
Exhumations on 25 th, 26 and 27 September 1996, Annexes, vol 2(III), annex 418; Record of Exhumations on
2 , 4 and 5 July 1996, Annexes, vol 2(III),annex419.
733Namely, the copies of the original witness statements contained in annexes nos. 344–346 and 348–357 do not
even contain signatures of persons who allegedly gave those statements; in annexes nos. 344, 345, 346, 348, 351,
352, 353, 354, 356 and 357 there is no signature of person(s) who took those statements, while in annexes nos.
346, 347, 348, 353, 354, 355, 356 and 357 it is even not visible who a person or body who took the statements
was.
267829. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims. Most of the even ts alleged by the Applicant are supported by
hearsay evidence or not supported at all.
830. Witnesses who testified about the events in Lađevac provided only second-hand accounts
of the alleged killings. For example, witness MP (annex 346) and witness MG (annex
347) only stated the names of three persons k illed in November 1992, June 1992 and in
February 1993. Witness MS (annex 350) speaks of having found the bodies of 3 women
who were brutally killed, but offers no info rmation on how, when or by whom those
women were killed. Witness MM (annex 351) speaks of hearing about murder and
burning of houses of two fam ilies, but again has no direct knowledge of the events.
Witnesses JT (annex 354) and AK (annex 348)also provide only second hand evidence of
the alleged events.
831. In relation to Arapovac, witness AK (annex 348) testified about the alleged killing of
the Morosavljevi ć family. However, he did not se e the killing and has no direct
knowledge about it. The same witness test ified about looting and battering that
happened in the village and identified the perpetrators as local Serbs.
832. Witness AŽ (annex 357) testifie d about the events in Gorn ji Furjan. In her statement
witness AŽ talks about looting, houses being set on fire and about the arrest by local
Serbs of 6 persons whose bodies were la ter dug up in one of the mass graves in
Lađevac. She however has no knowledge as to how and under what circumstances these
persons lost their lives.
833. The ICTY Judgment in the Martć i case confirmed only a smallpart of the allegations made
by the Applicant, namely the killing of 7 civilians in Lipovača at the end of October 1991
and the existence of a mass grave in Lipova ča Drežnička. According to the Judgment,
killings were perpetrated by “Serb paramilitaryforces”. The ICTY has qualified events in
Lipovača as crimes against humanity (persecution) and violation of ru les or customs of
war. 734The said murders have also been covre ed by the Indictmentagainst Milan Babi ć.35
734
735ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, paras. 367–371.
ICTY, Babić, IT-03-72, Indictment, 6 November 2003, para. 15.
268834. The Martić Judgment confirms the JNA’s presence in Lipovača however, but only for a
very short period of time (7 to 8 days). 736
835. The majority of the crimes alleged to be committed in the Slunj municipality have not
been sufficiently supported by the evidence submitted by the Applicant for the reasons
explained above. In any event, the Appli cant has not shown that if crimes were
committed they were committed with genocidal intent or that the crimes or the alleged
genocidal intent can be attributed to the Respondent. For these reasons, the Respondent
submits that the Applicant’s allegations relating to Slunj should be dismissed.
OGULIN
(Memorial, paras. 5.148 – 5.152)
836. In support of its claims pertaining to tha ectus reusof the crime of genoc ide in relation to the
Ogulin municipality the Appc liant alleges that in Saborsko the following crimes occurred:
a) Destruction of the village;
b) Execution of 9 persons on 12 November 1991 (names provided);
c) Killing of 2 persons (names provided);
d) Extermination of the entire population of Saborsko;
e) Disappearance of 11 persons (names provided), and exhumation of 23
identified persons from mass and individual graves.
837. The evidence produced by the Applicant in support of these claims are witness
737
statements contained in annexes nos. 358-365, and the list of missing persons. The
738
witness statements do not fulfill the minimu m evidentiary requirements of affidavit
and are accordingly inadmissible.
838. Even if witnesses were to be treated as reliabl e, their statements do not support the
Applicant’s claims. While witnesses provi de unanimous accounts about the attack on
the village and the destructi on of property, only severa l witnesses provide direct
736ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 202.
737“Lists of detained and missing persons“ (Memorial, Vol. 6, Appendices).
738Namely, the copies of the original witness statements contained in annexes 358, 360 and 361 do not even
contain signatures of persons who allegedly gave those statements; in annexes 360 and 361 there is no signature
of person(s) who took those statements, while in annexes 362 and 363 it is not even possible to tell a person or a
body who took the statements.
269 evidence in support of alleged killings of the local populat ion and their imprisonment.
Witness AB (annex no. 360) testifies to hearing 6 men being killed by gunshots who
were previously separated from a group in which she was in, while witness MM (annex
no. 362) testifies to seeing hi s sister and her husband killed by a neighbor. All other
accounts of alleged killings provided by the Applicant represent either hearsay evidence
or accounts of witness who had seen dead bodies but do not know how those persons
met their faith. As for allegations on for ced captivity, while witness MD (annex no.
361) provides an account of being imprisone d in a local school w ith additional seven
people, witness AŠ (annex no. 363) mentions time spent in the school but not in the
context of being forcefully kept there, rath er being provided shelte r there. Accounts of
all witnesses do not provide support for th e Applicant’s allegation regarding the
extermination of the entire village. One w itness, PM (annex no. 359) testifies to seeing
the destruction of the gravey ard. A number of witnesses points to specific culprits,
many of which were, according to these witness accounts, local Serbs.
839. The allegations contained in the document of Croatian official bodi es (List of missing
persons, Appendices, vol. 6) must be corroborated by the evidence from an independent
source; the document cannot be treated as reliable evidence by itself because it has been
generated by the Applicant.
840. The events in Saborsko, Ogulin municipa lity, are covered by two judgments of the
739
ICTY. The Judgment of the Trial Chamber in the Martic case confirms the November
1991 attack on the village of Saborsko, murderof 9 persons whose names are listed in the
Memorial 740and the murder of additional 2 pe rsons, also listed in the Memorial 74. The
judgment also confirms the existence of three grave-sites noted by the Applicant, from
which bodies of 27 civilians were exhumed. Th e Trial Chamber established that out of the
27 people exhumed, 20 lost their liv es in November 1991 in Saborsko. 742The Trial
Chamber was not satisfied that the destruction of the local churches was collaborated by
evidence, particularly since it had establishedthat the churches had been used as military
743
posts during November attacks and one even prior to that. No evidence was presented
739ICTY, Martić, IT-95-11, Trial Chamber Judgment, 12 June 2007; also ICTY, Babić, IT-03-72-S, Sentencing
Judgment, 29 June 2004.
740ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, paras. 230–233.
741Ibid., para. 233.
742Ibid., paras. 225-244.
743Ibid., para. 380.
270 or cited by the Trial Chamber that would s upport Applicant allegations of extermination
of the whole village of Saborsko. Milan Marti ć was found guilty of crimes against
744
humanity and violation of rules or cu stoms of war in relation to Saborsko.
841. While most of the acts alleged to have take n place in Saborsko have been confirmed by
the judgment of the ICTY, the Applicant has not shown that any of the crimes were
committed with genocidal intent or that the crimes or the alleged genocidal intent can be
attributed to the Respondent. For these reasons, the Respondent submits that the
allegations of the Applicant relating to Ogulin should be dismissed in their entirety.
KARLOVAC
(Memorial, paras. 5.153 – 5.157)
842. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to the Karlovac municipality, the Applicant alleges that the following had occurred:
a) In Karlovac,killing of 42 civilians (one na me provided inthe Memorial)
from October to December 1991and injuring of 95 persons.
b) In Banski Kova čevac, killing of 6 persons (names provided),
maltreatment of remaining civilian population and rapeof one person.
843. In support of its claims th e Applicant produced witnes s statements, contained in
annexes 343 and 366 -370. These witness st atements do not fulfill the minimum
evidentiary requirements of affidavit 745and are accordingly inadmissible.
844. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims. The Applicant does not provide any direct evidence in support
of the alleged killings that took place in Karlovac. Witness ML mentioned the killing of
Croat police officers in the village Žuta Lokva and killing of one member of the
Croatian Army (see annex 366). Witness DP mainly talked about fighting and
744Ibid., para. 379.
745The copies of the original witness statements contained in annexes 343, 366, 368, 369 & 370 do not even
contain a signature of persons who allegedly gave those statements; in annex no. 366 there is no signature of
person who took that statement, while statements in annexes 343, 368, 369 & 370 were taken by the police
organs without involvement of judicial organs.
271 acknowledged attacks on the JNA barracks and killing of JNA reservist by the Croatian
forces. DP’s general statement about 300 kill ed people in Karlovac out of which some
were civilians, was not even given weigh by the Applicant (see annex 367).
845. For the reasons explained above, the crimes alleged to have been committed in Karlovac
have not been sufficiently supported by evidence submitted by the Applicant. No case
before the ICTY has dealt with the alleged crimes in the Karlovac municipality. In any
event, the Applicant has not shown that if crimes were committed they were committed
with genocidal intent or that the crimes or the alleged genocidal intent can be attributed
to the Respondent. For these r easons, the Respondent submits that all allegations made
by the Applicant relating to Karlovac should be dismissed in their entirety.
OTOČAC
(Memorial, paras.5.158 – 5.163)
846. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Otočac municipality the Applicant alleges that following occurred:
a) In Dabar:
i. Killing of four Croats after 27 August 1991 (one name provided
in the Memorial);
ii. Killing of seven Croats (names provided) on or after 19
November 1991;
iii. Killing of two Croats (names provided but no date).
b) In Vrhovine, disappearance of five Croats after being taken from the
village by the Martić’s group at the beginning of October 1991.
847. In support of its claims the Applicant offere d witness statements contained in annexes
nos. 371–375 and one police record. 746 The witness statements do not fulfill the
minimum evidentiary requirements of affidavit 747and are accordingly inadmissible.
746Official record of the Police Section from 27 February 1992, Annexes, vol 2(III), annex 417.
747None of the five copies of the original witness st atements contained in annexes nos. 371–375 do not even
contain signatures of persons who allegedly gave those statements; in annexes nos. 371 and 372 there is no
signature of a person who took those statements, while in annexes nos. 371 and 372 it is not even possible to tell
who was the person or the body that took the statements was.
272848. Moreover, even if the witnesses are to be treated as reliable, quod non, their statements
do not support the Applicant’s claims. Re garding the killing of Marija Draženovi ć and
Marija Klišanin, only the hearsay evid ence of witness SD was submitted by the
Applicant. The witness was, however, not ce rtain whether the two victims were killed
by shelling or were caught and thrown in a fire (see annex 371). Similarly, statements in
relation to the alleged killin g of seven Croats, that we re allegedly first abducted,
represent hearsay evidence a nd do not stipulate the circum stances under which these
persons were killed (see annexes nos. 371, 372 and 373). In relation to the five missing
Croats from Vrhovine, the only evidence that was submitted is that they were taken by
the Martić’s group (see annexes nos. 374 and 375).
849. The ICTY has dealt with the alleged crimes in the Oto čac municipality and the Trial
Chamber in the Martić case found that only on e person, Stipe Brajković, was killed on
748
21 November by the group led by Predrag Baklajić.
850. The crimes alleged to have been committed in the municipality of Otočac have not been
sufficiently supported bythe evidence submittedby the Applicant forthe reasons explained
above. In any event, the Applicant has not shown that if crimes were committed they were
committed with genocidal intent or that the crimes or the alleged genocidal intent can be
attributed to the Respondent. For these reasons, the Respondent submits that all allegations
made by the Applican t relating to Očac should be dismisse d in their entirety.
GOSPIĆ
(Memorial, paras. 5.164 - 5.171)
851. Applicant alleges that in relation to the Gospi ć municipality the following acts of
genocide were committed:
a) In Široka Kula:
i. Six Croats went missing as of September;
ii. One Croat women was killed on 25 September 1991;
iii. Two older Croat women have beem nissing since 25 September 1991;
iv. Eight Croats were killed on 13 October 1991, while seven Croats were
killed and two disappeared in different hamlets on unidentified dates.
748
ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 326.
273852. In support of its claims the Applicant offere d witness statements contained in annexes
376 – 380. In addition, the Applicant submitted the book “Mass killings and genocide in
Croatia”, the letter to the Parliamentary Commissioner for the exchange of prisoners
written by the Ministry of De fense of the Republic of Croatia, and the letter from
members of the families of the dead and missing from Široka Kula. 749
853. The witness statements offered by the Applicant do not fulfill the minimum evidentiary
requirements of affidavit. 750These documents are accordingly inadmissible.
854. The Allegations contained in the document of Croatian official bodies (annex 420) and
the book Mass killings and genocide in Croati a must be corroborated by evidence from
an independent source. These documents canno t alone be treated as reliable evidence
because they have been generated by the Applicant.
855. As a part of elaboration on the overall context in SAO Krajina and the RSK at the
beginning of 1990s, the Trial Chamber in Martić case mentioned the killing of 13
persons in Široka Kula by Serbian police officer which was organized by a Serbian
leader of the local police. 751This crime was generally qualified by the Trial Chamber as
acts of persecution. 752Marti ć was however never indicted nor convicted for this
particular crime.
856. The crimes alleged to have been co mmitted in the municipality of Gospi ć are not
sufficiently supported by the evidence s ubmitted by the Applicant for the reasons
explained above. In any event, the Appli cant has not shown that if crimes were
committed they were committed with genocidal in tent, or that the crimes or the alleged
genocidal intent can be attributed to the Respondent. For these reasons, the Respondent
submits that all of the Applicant’s allegations relating to municipality of Gospi ć should
be dismissed in their entirety.
749
The book “Mass killing and genocide in Croatia 1991/92”; Letter to the Parliamentary Commissioner for the
exchange of Prisoners, Annexth, vol 2(III), annex 420; Letter from Members of the Families of the Dead and
750sing from Široka Kula, 13 October 2000, Annexes, vol 2(III), annex 421.
None of the statements contains eith er an oath or a solemn promise that the truth has been stated; the copies
of the original witness statements contained in annexes nos. 377–380 do not even contain signatures of persons
who allegedly gave those statements; witness statements in annexes nos. 377–380 have all been taken by the
police organs without the involvement of the judicial organs.
751ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 324, footnote 1002.
752Ibid., paras. 323–324.
274 TITOVA KORENICA
(Memorial, paras.5.172 – 5.181)
857. The Applicant alleges that in relation to the Titova Korenica municipality the following
acts of genocide were committed:
a) In Korenica, the torture of detained Croats;
b) In Vaganac, the killing of eight Croats on 9 October 1991;
c) In Poljanak:
i. Killing of two Croats on 6 October 1991;
ii. Hanging of two Croats on 24 October 1991;
iii. Killing of eleven Croats on 7 November 1991;
d) In Smoljanac:
i. Killing of two Croats on 8 October 1991;
ii. Killing of two Croats on 2 December 1991.
858. In support of its claims the Applicant submitted witness statements contained in annexes
381 – 392 and investigation and exhumation records contained in annexes 422–424. 753
The witness statements submitted by the Applicant do not fulfill the minimum
evidentiary requirements of affidavit. 754These documents are accordingly inadmissible.
859. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims. Witnesses whose st atements are offered by the Applicant as
evidence of the alleged crimes committed in Vaganac provide only circumstantial
information about the alleged killings, without giving direct information as to how and
under what circumstances these Croats were killed (see annexes 381 and 382,
statements of JJ and IK).
860. In relation to the alleged killings of two Croats during the figh ting on 8 October in
Smoljanac, the witnesses did not offer info rmation on the specific circumstances under
753
Investigation Records (exhumation), Kir-632/96 and Kir-469/96, Memorial, Annexes, Vol. 2(III), annexes
422 & 423; Report of Exhumation, 13 August 1996, Memorial, Annexes, Vol. 2(III), annex 424.
754None of the 12 copies of the original witness statements contained in annexes relating to municipality Titova
Korenica do not even contain signatures of persons who allegedly gave those statements; in annexes nos. 383,
384, 386 and 389 there is no signature of person(s) who took those statements, while in annexes nos. 383, 386
and 389 it is not even possible to see who the person or the body which took the statements was.
275 which the killings took place (see anne xes nos. 390, 391 and 392). Their statements,
however, reveal that heavy fighting occurred in Smoljanac on the date of the alleged
killings, i.e. on 8 October 1991 (see annexes nos. 390 and 391).
861. The ICTY has dealt with the alleged crimes in the municipality of Titova Korenica.
Trial Chamber in the Martić case confirmed the killings in Poljanak and its hamlet
Vuković. 755 The Trial Chamber did not find enough evidence to support the charges
concerning the destruction and looting in Vaganac. 756Milan Martić was found guilty of
persecution in relation to the village of Poljanak. 757 He was found not guilty of
758
extermination.
862. The majority of the crimes alleged to have been committed in the municipality of Titova
Korenica are not sufficiently supported by the evidence submitted by the Applicant for
the reasons explained above. In any event, th e Applicant has not shown that if crimes
were committed they were committed with ge nocidal intent or that the crimes or the
alleged genocidal intent can be attributed to the Respondent. For these reasons, the
Respondent submits that all of the Applicant’ s allegations relating to municipality of
Titova Korenica should be dismissed in their entirety.
GRAČAC
(Memorial paras. 5.182 – 5.186)
863. Applicant alleges that in relation to the Gra čac municipality the following acts of
genocide were committed in the village of Lovinac:
a) Killing of one Croat on 20 July 1991;
b) Killing of six Croats on 5 August 1991;
c) Killing of three Croats in surrounding villages Sr. Rok and Smokrić at
unknown time;
d) Killing of three Croats in September 1991.
755
ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, paras. 210-214; also see ICTY, Stanišić
et al., IT-03-69, Third Ammended Indictment, 10 July 2008, para. 30.
756ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 385.
757Ibid., para. 378.
758Ibid., paras. 404–406 & para. 479.
276864. In support of its claims the Applicant su bmitted witness statements contained in
annexes 393 – 398 and one investigative repor t and one special report of the Croatian
Police (annexes 426 and 427). 759
865. The witness statements offered by the Applicant do not fulfill the minimum evidentiary
requirements of affidavit. 760 These documents are accordingly inadmissible.
866. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims. There is no evidence as to the circumstances under which three
Croats, Mate Kova čević and brothers Pavi čić, were allegedly killed in surrounding
villages Rok and Smokrić (see annexes 395, 426 and 427). Witness MR testified about
the taking of five Croats a nd subsequent discovery of th eir bodies, but di d not provide
specific circumstances under which the killings occurred.
867. As a part of elaboration on the overall context in SAO Krajina and RSK at the
beginning of 1990s the Trial Chamber in Martić case mentioned that five Croats were
killed in village of Lovinac between 5 and 14 August 1991 by Serbian paramilitary
761
groups. Martić was however never indicted and consequentially not convicted for this
particular crime.
868. The crimes alleged to have been co mmitted in the municipality of Gra čac are not
sufficiently supported by evidence submitted by the Applicant for the reasons explained
above. In any event, the Applicant has not shown that if crimes were committed they
were committed with genocidal intent or that the crimes or the alleged genocidal intent
can be attributed to the Respondent. For th ese reasons, the Respondent submits that all
of the Applicant’s allegations relating to municipality of Gra čac should be dismissed in
their entirety.
759Investigative Report, 22dAugust 1996, Memorial, Annexes, Vol. 2(III), annex 426 and Special Report,
Memorial, Annexes, Vol. 2(III), annex 427.
760The copies of the original witness statements contained in annexes 393, 395, 397 & 398 do not even contain
signatures of persons who allegedly gave those statements; while in annexes 393 & 398 it is even not possible to
tell who the person or the body that took the statements was.
761ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 324, footnote 1002.
277General observation in relation to the area of Kordun and Lika
869. Even if all of the Applicant’s allegations are to be taken asaccurate, it is obvious that the
alleged killings in Kordun and Lika were perpetratd e on a random basis and in a longer period
of time, which points to the abs nece of any genocidal intent on behalf of the perpetrators.
870. Furthermore, it is clear, even from the evid ence offered by the Applicant, that in some
places mentioned in the Memorial heavy fi ghting took place at the time when the
alleged crimes were committed. For example, the Trial Chamber in the Marti ć case
found that Croatian armed forces and units consisting of severa l hundred men were
present in Saborsko and that those members of the Croatian armed forces remained
present in Saborsko after th e attack on 12 November 1991. 762Accordingly, it is more
than likely that all war related casualties are included as victims in the Memorial.
871. The events in Kordun and Lika were examined by the ICTY in the Milan Marti ć case.
After examining the alleged crimes, including those in the area of Kordun and Lika, the
Tribunal concluded that they did not fulfill th e requirements of extermination as crimes
against humanity. Namely, the Trial Chamber not ed that the element of crimes against
humanity requiring that the killings be committed on a large scale had not been met. 763
872. With respect to the possible involvement of the JNA in the events, even the Applicant
acknowledges that there was no involvement of the JNA in the alleged crimes
committed in the municipalities of Vrgin Most, Slunj, Oto čac, Gospić and Gračac,. In
relation to Karlovac, the Applicant mentioned that JNA was involved in the occupation
of the town but no evidence was offered that the JNA units were involved in the actual
crimes described by the Applicant’s witnesses. The Applicant alleges that the attack on
the municipality of Ogulin, more concrete ly the village of Saborsko, was executed by
764
the JNA and Serb paramilitaries. However, the Judgment in the Marti ć case only
established that the killings in Sabors ko on 12 November 1991 were committed by two
765
soldiers wearing Serbian dark grey uniforms.
762Ibid., paras 350 and 379.
763Ibid., para.404.
764Memorial, para. 5.151.
765ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 230.
278873. In relation to the municipality of Titova Korenica, where the Applicant claims that the
766
JNA and paramilitary forces fought t ogether against the Croatian forces , witness
767
statements offered by the Applicant do not support such conclusion.
6. Response to the Applicant’s AllegationsConcerning CrimesCommitted in Dalmatia
ŠIBENIK
(Memorial paras. 5.202 – 5.205)
874. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Šibenik municipality the Applicant alleges that following occurred:
a) In Piramatovci killing of three Croats and killing of three Croats in the
hamlet Bilostanović;
b) In Cicvare killing of two Croats in January 1992;
c) In Sonković killing of six Croats in January 1992;
d) In all other locations, namely Rupe, I ćevo and Čista Velika, the
Applicant alleges the killing of six Croats.
875. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes nos. 432, 433 and 523, the book “Mass killing and
genocide in Croatia”, three death reports, fi ve Investigation records and one minute of
investigation. 768 Тhe witness statements do not fulfill the minimum evidentiary
requirements of affidavit 769 and are accordingly inadmissible.
766
767See Memorial, paras. 5.174 – 5.179.
Witness JJ (annex 381) only mentioned „former JNA“, witness MK (annex 386) stated that it was the
paramilitaries and not the JNA that was attacking, while witness SR (annex 390) stated that the JNA was
patrolling the village and warned the villagers that they should beware of the “Martic people”.
768The book “Mass killing and genocide in Croatia, 1991/92” page 145; "Minutes of investigation", District Court
in Knin, 13 April 1992, Memorial, Annexes, Vol. 2(II I), annex 539; Death Report, 18 March 1992, Memorial,
Annexes, Vol. 2(III), annex 540; Investigation Record, Municipal Court in Benkovac, 14 March 1992, Memorial,
Annexes, Vol. 2(III), annex 541; Investigation Record, 22 Jun192, Memorial, Annexes, Vol. 2(III), annex 542;
Investigation Record, District Court in Knin, 15 January 1992, Memorial, Annexes, Vol. 2(III), annex 543;
Investigation Record, District Court in Knin, 2 Ja nuary 1993, Memorial, Annexes, Vol. 2(III), annex 544;
Investigathon Record, District Courtin Knin, 16 January 1992, Memorial, Annexes, Vol. 2(III), annex 546; Death
Report, 26 December 1991, Memorial, Annexes, Vol. 2(III), annex 547; Death Report, 26 December 1991, Memorial,
769exes, Vol. 2(III), annex 548.
None of the three copies of the original witness statements contained in annexes 432, 433 & 523 contain
signatures of persons who allegedly gave those statements.
279876. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims. None of the witne sses whose statements are offered by the
Applicant had direct knowledge as to how and under what circumstances the alleged
killings occurred. Instead, the witnesses speculated on who was responsible for the
crimes and provided no information on the dates of the alleged crimes.
877. The crimes allegedly committed in the municipality of Šibenik are not sufficiently
supported by the evidence submitted by the Ap plicant for the reasons explained above.
The ICTY has neither indicted nor sentenced anyone with re spect to the alleged crimes
in Šibenik. In any event, the Applicant has not shown that if crimes were committed
they were committed with genocidal intent or that the crimes or the alleged genocidal
intent can be attributed to the Respondent . For these reasons, the Respondent submits
that all of the Applicant’s allegations relating to munici pality of Šibenik should be
dismissed in their entirety.
DRNIŠ
(Memorial, paras. 5.206 – 5.212)
878. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Drniš municipality the Applicant alleges that the following occurred:
a) In Puljane killing of ten Croats (five identified) on 2 August 1993;
b) In Siverić several instances of rapes and beatings;
c) In Drniš killing of three identified Croats during 1993 and one
instance of rape;
d) In Miljevci killing of eight identified Croats, mostly during 1992;
e) In all other locations, namely Trbounje, Kadina Glavica, Kri čke,
Žitnić, Oklaj, Lukari, Razvođe, Ljubotic, Matase, Otavice - killing
of 32 Croats. 770
770
The alleged killings in Kadina Glavica occurred in January 1993, in Kri čke in 1992, in Žitni ć killings were
perpetrated on unknown time, in Oklaj killings were mostly perpetrated during November 1992 and after, in
Lukari on unknown time, in Razvo đe in June 1992, in Ljuboti ć on unknown date, in Matase on unknown date,
and killings in Otavice occurred in January and February 1993.
280879. The evidence produced by the Applicant in support of these claims are witness
771
statements contained in annexes nos. 434 - 461, 514, 515, 519 - 521, three books and
772
several reports, originating from different RSK or Croatian bodies.
880. The witness statements su bmitted by the Applicant do not fulfill the minimum
773
evidentiary requirements of affidavit. These documents are accordingly inadmissible.
881. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims.
882. With respect to Drniš, the crimes involving three deaths according to one witness
occurred in 1993. The witness MP did not pr ovide information about the circumstances
surrounding these killings (see annex no. 442).
883. Witness statements given in relation to severa l killings in Miljevci in majority of the
cases do not reveal the circumstances of the killings or the perpetrators. Incidents,
according to witnesses, took place in 1991, 1992 and 1993.
884. All other cited locations -the allegations relating to the alleged crimes in Kr čike - are based
on the hearsay evidence (see annex no. 450). The same applies in relation to Žitnić (the
allegation that three Croats might have beenik lled and buried in a we ll, see annex no. 452).
In relation to Razvođe, the Applicant claims that four Croats were killed, while the witness
771
The book “Mass killing and genocide in Croatia 1991/92”, Croatian University Press, Zagreb, 1992, page 160;
"Wounded Church in Croatia - Destruction of the Sacral Buildings in Croatia (1991 - 1995)", Croatian Bishop's
conference and others, Zagreb, 1996, p. 247; Vladimira Pavić, "Register of War Damages on Museums and
Galleries", Museum Documentation Centre, Zagreb, 1997, pp. 118-121.
772“Ivan Bra čić and other murders“, Secretariat of Interior, 1 March 1993, Annexes, vol 2(III), annex 531;
“Violence and the murders of the citizens of Croatian nationality”, Security and Intelligence Agency, 1 March
1993, Annexes, vol 2 (III), annex 532; Resolution on presence in combat, General-Major of the Serbian Army of
Krajina Milan Čeleketić, 9 September 1994, Annexes, vol 2 (III), annex 533; M ilitary Police MP Knin, "The
minutes on the investigation", 1 February 19th, Annexes,vol2(III),annex534;UN,TheMinistryoftheDefense
of the Republic of Croatia’s Office in ŠibeniJune 1995, Annexes, vol 2 (III), annex 535; Daily Report, Security and
Intelligence Agency, 3 February 1993, Annexes, vol 2(III), annex 537; Official Note, Police station Drniš, 4 March
1994, Annexes, vol 2(III),annex 581; Report, 3 police station Drniš, 11 March 1996, Annexes, vol 2(III), annex
550; Record, 3 police station Drniš, 12 March 1996, Annexes, vol 2(III), annex 549; Record, 3 police station in
Drniš, 11 March 1996, Annexes, vol 2 (III), annex 582; Official report on bodies found, 3olice station Drniš, 19
September 1996, Annexes,vol 2 (III), annex 551.
773The copies of original witness statements contained in annexes nos. 434, 437, 438, 439, 440, 441, 442, 443,
444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 45 5, 456, 458, 459, 460, 461, 514, 515, 519 and 521 do
not even contain signatures of persons who allegedly gave those statements. In annexes nos. 434, 437, 438, 447,
461 and 514 there is no signature of person(s) who took those statements, while in annexes nos. 434, 435, 436,
437, 438, 442, 443, 444, 447 and 514 it is even not visible who a person or body that took the statements was.
281 MD, to which the Applicant referred, only confirmed one death, and the woman who died
actually died by stepping on a mine (see annex no. 456). Similarly, the allegation that five
Croats were killed in the vilge of Otavice isnot supported by the statement of witness IG.
The witness testified about three of the allegmurders, but his statement seems to be based
on hearsay evidence (see annex no. 460).
885. The Allegations contained in documents of Croatian official bodies (annexes nos. 534
and 535) must be corroborated by evidence from an independent source; these
documents alone cannot be treated as reliable evidence because they have been
generated by the Applicant.
886. The crimes alleged to have been committed in municipality of Drniš are not sufficiently
supported by evidence submitted by the Applicant for the reasons explained above. The
ICTY has neither indicted nor sentenced anyon e with respect to th e alleged crimes in
Drniš. In any event, the Applicant has not shown that if crimes were committed they
were committed with genocidal intent or that the crimes or the alleged genocidal intent
can be attributed to the Respondent. This is particularly the case since most of the
incidents described by witnesses took pl ace between 1992 and 1993. For these reasons,
the Respondent submits that all of the Applicant’s allegations relating to municipality of
Drniš should be dismissed in their entirety.
KNIN
(Memorial paras.5.213 – 5.216)
887. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Knin municipality the Applicant alleges that the following occurred:
a) In Kninsko Polje, the killing of two identified Croats;
b) In Kijevo, the killing of ten iden tified Croats from June 1992 until
January 1993;
c) In Ervenik, the killing of five identified Croats on 18 January 1992.
888. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes nos. 462 - 468, 516 and 518 and a record on the
282 774
external examination of a corpse. The witness statements do not fulfill the minimum
evidentiary requirements of affidavit 775and are accordingly inadmissible.
889. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims.
890. Witness statements in relation to Kijevo mo stly contain hearsay information without
accurate description of how killings occurr ed and by whom were they committed (see
annexes nos. 463 and 464).
891. The ICTY dealt with the attack on Kijevo in the Martic case, but di d not deal with the
alleged killings. The killing of members of the Čengić family in the village of Ervenik
on 18 January committed by three members of the TO, was mentioned as evidence of
persecution in addition to other separate counts. 776Martić was however not charged in
relation to killings in Kijevo and Ervenik and consequentially not convicted for them.
892. The crimes alleged to have been committed inthe municipality of Knin are not sufficiently
supported by evidence submittedby the Applicant for the reasons explained above. In any
event, the Applicant has not shown that if crimes were co mmitted they were committed
with genocidal intent or that the crimes or the alleged genocidal intent can be attributed to
the Respondent. For these reasons, the Respo ndent submits that all of the Applicant’s
allegations relating to municp iality of Knin should be dismissed in their entirety.
OBROVAC
(Memorial paras.5.217 – 5.221)
893. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Obrovac municipality the Applicant alleges that following occurred:
a) In Jasenice, the killing of ten Croats (7 identified) on 11 September
1991;
774Record on the external examination of the corps,1992, Memorial, Annexes, Vol. 2(III), annex 554.
775The copies of the original witness statements contained in annexes nos. 462, 463, 464, 465, 468, 516 & 518
do not even contain signatures of persons who allegedly gave those statements. In annexes 468, 516 & 518 there
is no signature of person(s) who took those statements, while in annexes 468 & 518 it is even not visible who a
person or body who took the statements was.
776ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 327, footnote 1012.
283 b) In Medviđa:
i. Killing of four identified Croats between 9 May 1992 and 3
February 1993;
ii. Killing of 9 identified Croats on 9 February 1993.
c) In all other locations mentioned by the Applicant, namely Zaton
Obrovački and Kruševo, the killing of nine Croats (four of them
were identified). The killings in Zaton Obrova čki were perpetrated
in January 1993 while one killing in Kruševo occured on an
uncertain date.
894. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes nos. 469 - 483, and 517 777 and several investigative
minutes and exhumation records created by the organs of Republic of Croatia. 778
895. The witness statements offered by the Applicant do not fulfill the minimum evidentiary
779
requirements of affidavit. These documents are accordingly inadmissible.
896. Even if witnesses are to be treated as reliable, their statem ents do not support the
Applicant’s claims.
897. The exhumation records offered by the App licant confirm the killing of six elderly
Croats in the village of Jasenica, but th ey cannot provide any information under what
circumstances and by whom were the victims killed.
898. The crimes alleged to have been committed inmunicipality of Obrovac are not sufficiently
supported by evidence submitted by the Applicant for the reasons explained above. The ICTY
has neither indicted nor sentencedanyone with respect to the alleged crimes in Obrovac. In
any event, the Applicant has not shown thatif crimes were committed they were committed
777
778Annex 471 is not referenced in the Memorial but is attached in vol 2(III).
Minutes on the investigation, District Court in Zadar, 22 January 1997, Annexes, vol 2(III), annex 555;
Minutes on the Autopsy - Stipe Zubak, Annexes, vol 2(III), annex 557; Autopsy Report - Ivan Maruna,
Annexes, vol 2(III), annex 558; Reco rd of Exhumation - Božica Juri čević, Zorka Zubak, Martin Bužonja,
Manda Maruna, Annexes, vol 2(III), annex 556; Minutes of investigation, District Court in Zadar, 22 January 1997,
Annexes, vol 2(III), annex 584.
779The copies of the original witness statements contained in annexes nos. 469, 471, 472, 473, 476, 477, 478,
481, 482 and 483 do not even contain signatures of persons who allegedly gave those statements. In annexes nos.
474, 475 and 480 it is even not visible who was a person or body who took the statements.
284 with genocidal intent, or that the crimes or th aelleged genocidal intent cn abe attributed to the
Respondent. For these reasons, the Respondent subim ts that all of the pplicant’s allegations
relating to municipality of Obrovac should be dismissed in their entirety.
BENKOVAC
(Memorial paras. 5.222 – 5.225)
899. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Benkovac municipality the Applicant alleges that following occurred:
a) In Bruška, the killing of nine identified Croats on 21 December 1991
and one Croat in June 1992.
b) In Korlat, the killing of nine identified Croats.
c) In Smilčić, the killing of six Croats (3 identified) and two instances of
rapes.
d) In all other locations belonging to the municipality of Benkovac
(Lišane Ostrovi čke, Rodaljice, Lisi čić, Peruši ć Benkova čki and
Šopot), the killing of 20 Croats and one instance of rape in Lisičić.
900. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes nos. 484–502, along with several minutes of
780
investigation and exhumation reports.
901. The witness statements offered by the Applicant do not fulfill the minimum evidentiary
requirements of affidavit. 781 These documents are accordingly inadmissible.
780Commentary, Crime in the Village of Bruška, Annexes, vol2(III), annex 559; Minutes of Investigation, District
Court in Zadar, 26 April 1996 - Dušan Marinovi ć, Roko Marinović, Annexes, vol 2(III), annex 560; Minutes of
Investigation, District Court in Zadar, 26 April 1996 – Petar Marinovi ć, Krsto Marinović, Draginja Marinović,
Annexes, vol 2(III), annex 561; Minutes of Investigation, District Coinadar, 26April 1996 - Manda Marinovi,
Stana Marinović, Annexes, vol 2(III), annex 562; Minutes of Inveation, District Court in Zadar, 26 April 1996 -
Dragan Marinovć i, Ika Marinović, Anneths, vol 2(III), annex 563; Minutes of Investigation, 26 April 1996, Annexes,
vol 2 (III), annex 564; Report of Death, 27March 1992, Annexes, vol 2(III), annex 565; Investigation Record, 24 April
1996, Annexes, vol 2(III), annex 566; Record of Investtion, 26 November 1992, Annexes, vol 2(III), annex 568;
Minutes of Exhumation, 24 May 1996, Annex 569; Minutes of Investigations dated 26 March 1992, 11 August 1992
and 30 November 1992, Annexes, vol 2(III), annexes 587, 588, 589; Record of the Performed Burial, 12 June 1992,
Annexes, vol 2(III), annex 570; Record of the Autopsy (Exhumation), 28 October 1995, Annexes, vol 2(III), annex 571;
Record of External Examinatioof Corpses, Annexes, vol 2(III), annex 585; Criminal chis,id.,annex 586.
781None of the 19 copies of the original witness statements contained in annexes contain signatures of persons
who allegedly gave those statements, while 18 out of 19 statements contained in annexes offered by the
Applicant were taken by the police organs.
285902. Even if witnesses are to be treated as reliab e,ltheir statements do not support the Applicant’s
claims. Thus, in relation to the allege d killings of six Croats in the Smil čić village, the
Applicant provided an investigta ion report (from the organs of the RSK), which confirms the
deaths of three victims, but not under which circumstances the victims died (annex 568).
Witness BA mentioned that Marinko and LjubicaArnabas were killed, but did not provide
any facts or direct knowledge about threa illeged killings (see annex no. 495).
903. Other locations: In relation to the alleged killings in the village of Lišane Ostrovi čke,
the Applicant submitted an exhumation report, but no information on under which
circumstances the people were killed. In relation to the village of Šopot, the Applicant’s
allegations on the killing of 8 Croats are based on the witness statements of KV
(annexes 501 and 502), which contains only hearsay evidence.
904. The Trial Chamber in the Martćicase discussed the events inthe Benkovac municipality and
found that 9 Croats were killed in Bruška. ThT erial Chamber found thatthe perpetrators also
killed Sveto Dra ča, a Serb who was wearing a JNA olive-drab uniform. 782
905. For the reasons explained above, the majority of the crimes alleged to have been
committed in municipality of Benkovac are not sufficiently supported by the evidence
submitted by the Applicant. In any event, th e Applicant has not shown that if crimes
were committed they were committed with geno cidal intent, or that the crimes or the
alleged genocidal intent can be attributed to the Respondent. For these reasons, the
Respondent submits that all of the Applicant’s allegations relating to the municipality of
Benkovac should be dismissed in their entirety.
ZADAR
(Memorial paras. 5.226 – 5.231)
906. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Zadar municipality the Applicant alleges that following occurred:
783
a) In Škabrnja and Nadin, the killing of 48 Croats ;
b) In other locations of Zadar munici pality, Zemunik Gornji and Donji,
the killing of six identified Croats.
782ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, paras. 267-268; see also ICTY, Stanišić
et al., IT-03-69, Third Ammended Indictment, 10 July 2008, para. 35.
783See Memorial, para. 5.229. This is the number of bodies that were delivered to Croatian Government
according to the Applicant.
286907. The evidence produced by the Applicant in support of these claims are witness
statements contained in annexes nos. 503 - 512, 784and six other documents of different
origin and nature. 785 Again, the witness statements do not fulfill the minimum
evidentiary requirements of affidavit 786 and are accordingly inadmissible.
908. Even if witnesses are to be treated as reliable, quod non, their statements do not support
the Applicant’s claims.
909. From the statements offered by the Applicant it can be seen that the fierce fighting
occurred before the Serb forces entered the village of Škabrnja (see annex 504) and that
they managed to inflict heavy losses to the Serbian forces and that some of the Croatian
fighters were in the civilian clothes (s ee annex no. 505). Furthermore, the fighting
started when the Firs t Lieutenant Stefanovi ć of the JNA unit was shot by the Croats
from Škabrnja (see annex no. 503). While th e ten Croat victims are identified by their
names, the circumstances of killing are not provided by the Applicant.
910. The Trial Chambers of the ICTY in the Marti ć case dealt with the events in Škabrnja
and Nadin on 18 and 19 November 1991. The Trial Chamber found that 14 Croats were
killed in Škabrnja on 18 November and that 6 Croats were kill ed in Nadin on 19
November 1991. 787 The Trial Chamber further found that an additional 26 Croats were
killed on 18 or 19 November in Škabrn ja, Nadin or Benkovac, while 11 Croatian
defenders were killed on 18 and 19 November 1991. 788 The Trial Chamber found that
between 18 November 1991 and 11 March 1992, 19 Croats were killed. 789Milan Martić
784
785Witness statement of DI (annex 506) is not refthed in the Memorial but itis attached as annex.
Extract from the Report of Helsinki Watch, 4 February 1992, Annexes, vol 2(III), annex 572; the book
“Mass killing and genocide in Croatia 1991/92”, pp. 140-144; Record of the Sanitation made on the spot in the
village of Škabrnja, Annexes, vol 2 (III), annex 575; Massacre of the Civilian Population from Škabrnja and Nadin
on 18 and 19 November 1991, Medical Center Zadar,The Pathology Department: Annexes, vol 2(III), annex576;
The Office of the Detained and Missing Persons of the Government of the Republic of Croatia: The list of the
exhumed and identified persons from Škabrnja, Annexes, vol 2 (III), annex 577; Record oEhumation; Record of
786nessing (the exhumation), Annexes, vol 2(III), annex578.
None of them contains either an oath or a solemn promise that the truth has been stated. The copies of the
original witness statements contained in annexes nos. 503, 504, 506, 507, 508, 509, 510, 511 and 512 do not
even contain signatures of persons who allegedly gave those statements. In annexes nos. 503, 504, 506, 507, 508,
509 and 510 there is no signature of person(s) who took those statements, while in annexes nos. 506, 509 and
510 it is even not visible who was a person or body who took the statements.
787ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, paras. 386-388; also in the Indictment
against Jovica Staniši ć in relation to Škabrnja the Prosecution alleged killing of at least 38 civilians, ICTY,
788nišić et al., IT-03-69, Third Ammended Indictment, 10 July 2008, para. 32.
789ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, paras. 389-390.
Ibid., para. 392.
287 was sentenced for persecution as a crime against humanity and was acquitted of
extermination, since the Trial Chamber conclude d that the element that the killings be
committed on a large scale has not been met. 790
911. While the majority of the Applicant’s claims on the crimes in the Zadar municipality
has been confirmed by the IC TY Judgment in the Marti ć case, the Applicant has failed
to show that any of the crimes were committe d with genocidal intent, or that the crimes
or the alleged genocidal intent can be attr ibuted to the Respondent. For these reasons,
the Respondent submits that all of the Applicant’s allegati ons relating to the
municipality of Zadar should be dismissed in their entirety.
SINJ
(Memorial paras. 5.232 – 5.234)
912. In support of its claims pertaining to theactus reusof the crime of genocide in relation to
Sinj, the Applicant alleges in relation to Peru ča an attempt to destruct the dam in Peruča.
913. The evidence produced by the Applicant in support of these claims are witness
statement contained in anne x no. 513, three estimates done by Croatian related organs
791
and one transcript of conversation.
914. The witness statement offered by the Applicant does not fulfill the minimum
evidentiary requirements of affidavit. It doe s not contain either an oath or a solemn
promise that the truth has been stated. The statement was taken by members of the
police, without the involvement of members of the judiciary. Such a statement is
accordingly inadmissible.
915. The Applicant’s allegations and estimations in relation to the Peru ča dam are based on
documents created by the organs of the Appl icant or persons working for the Croatian
official bodies and as such cannot be treated as reliable. Furthermore, the mentioned
790Ibid., para. 404.
791‘Facts and Estimates of the Consequences Resulting form Mining of the Perča Dam by Serbian Forces on
January 28, 1993’,Croatian Medical Journa,lVol. 34(4), 1993, pp. 280-4; ‘A chronological narrative on the events
at the dam from the occupation until th e mining’, Josip Macan, Croatian Nationa l Electricity (on file with the
Office for Cooperation with the ICTY and ICJ, Zagreb); ‘Consequences if tra dam was destroyed’, Zvonimir
Sever, Elektroprojekt; Conversation transcripćiNovaković, Memorial, Annexes, Vol. 2(III), annex 529.
288 documents were not even submitted with the Memorial. The allegations contained in
these documents must be corroborated by evidence from an independent source; the
documents alone cannot be treated as reliable evidence because they have been
generated by the Applicant.
916. The ICTY has neither indicted nor sentenced anyone with respect to the alleged attempt
to destruct the dam in Peruča.
917. In any event, the Applicant has not shown that the destruction of the dam was attempted
with genocidal intent, or that the attempt can be attributed to the Respondent. For these
reasons, the Respondent submits that all of the Applicant’s allegations relating to
municipality of Sinj should be dismissed in their entirety.
DUBROVNIK
(Memorial paras. 5.235 – 5.241)
918. In support of its claims pertaining to the actus reus of the crime of genocide in relation
to Dubrovnik the Applicant alleges killing of 161 Croats.
919. Evidence offered by the Applicant in support of these claims are witness statements
792
contained in annexes nos. 524 – 526 and several official records.
920. The witness statements offered by the Applicant do not fulfill the minimum evidentiary
requirements of affidavit. 793These documents are accordingly inadmissible.
921. The Applicant’s allegation co ncerning the killing of 161 civilians is based on the
records of the Police Station of the Dubrovni k – Neretva District. This document was,
however, not attached to the Memorial. The witness statements do not support the
792Republic of Croatia, Ministry of Culture, Board for Protection of the Cultural Heritage, War Damages of the
Immovable Cultural Monuments (by counties), Zagreb, September 2000; Official Record on the Operations of the
Aggressor, 28 October 1992, Annexes, vol 2(III), annex 590;Official Record on the Operations of the
Aggressor, 26 October 1991, Annexes, vol 2(III), annex 591; Official Record on the Operations of the
Aggressor, 17 December 1992, An nexes, vol 2(III), annex 592; Official Record, 11 November 1992, Annexes,
vol 2(III), annex 593; Official Record on the Operations of the Aggressor, 28 October 1999, Annexes, vol 2(III),
annex 594; Investigation Record, 11 November 1992, Annexes, vol 2(III), annex 595.
793None of the three copies of the original witness statements contained in annexes offered by the Applicant
contain signatures of persons who allegedly gave those statements. Furthermore, all three witness statements
were taken by the police organ without the involvement of the judiciary organ.
289 Applicant’s claims on the number of killi ngs in Dubrovnik area, but only provide
information about one disappearance, one r ecovery of a dead body and one killing due
to the beatings (see annexes nos. 525 and 526).
922. The allegations contained in the documents of the Croatian official bodies (War
Damages of the Immovable Cultural Monuments (by counties), Zagreb, September 2000
and records contained in annexes nos. 590 - 595) must be corroborated by evidence from
an independent source; these documents alone cannot be treated as reliable evidence,
because they have been generated by the Applicant.
923. The ICTY has dealt with the alleged crimes in Dubrovnik. The ICTY has convicted and
sentenced Miodrag Jokić to seven years of prison and Pa vle Strugar to seven and a half
years for the violations of the laws or customs of war in relation to Dubrovnik, and
794
more specifically for the shelling of the Old Town on 6 December 1991. According
to the Judgments, during the shelling on 6 December 1991 two civilians were killed and
three were wounded, while damage was sustained to cultural heritage. 795
924. The events in Dubrovnik were also incl uded in the Indictment against Slobodan
Milošević where the Prosecution alleged that 43 Croat civilians were killed during the
shelling campaign. 796 However, although the same numb er of victims was initially
alleged in the indictment against the JNA officers who commanded the attack on
Dubrovnik (Strugar and Joki ć), the Prosecution later wit hdrew most of the charges
797
except the charges for murder of two persons.
925. For the reasons explained above, the majority of the crimes alleged to have been
committed in Dubrovnik are not sufficiently supported by evidence submitted by the
Applicant. In any event, the Applicant ha s not shown that if crimes were committed
they were committed with genocidal intent, or that the crimes or the alleged genocidal
794
ICTY, Jokić, IT-01-42/1, Sentencing Judgment, 18 March 2004; see also ICTY, Strugar, IT-01-42, Appeals
Chamber Judgment, 17 July 2008 (Strugar was acquitted of the murder charges while Miodrag Joki ć pleaded
guilty for six counts of violations of the laws or customs of war perpetrated on 6 December 1991 including
795rges for murder).
See ICTY, Strugar, IT-01-42, Appeals Chamber Judgment, 17 July 2008.
796See ICTY, Milošević, IT-02-54-T, Indictment, para. 75.
797See ICTY, Strugar et al., IT-01-42, Initial Indictment, 22 February 2001 , para. 23 (both Pavle Strugar and
Miodrag Jokić were indicted); see also ICTY, Strugar, IT-01-42-PT, Third Amended Indictment, 10 December
2003; see also ICTY, Jokić, IT-01-42, Second Amended Indictment, 26 August 2003.
290 intent can be attributed to the Respondent . For these reasons, the Respondent submits
that all of the Applicant’s allegations relating to munici pality of Dubrovnik should be
dismissed in their entirety.
General observation in relation to the area of Dalmatia
926. Similar to other areas of Croatia, the alleged crimes in Dalmatia, even if taken as having
been proved, were committed over a long period of time, extending from 1991 until
1993, and on a random basis, which points to th e absence of any genocidal intent on
behalf of the perpetrators.
927. The events in Dalmatia were examin ed by the ICTY in the Milan Marti ć case. After
examining the alleged crimes, including those in the area of Dalmatia, the Tribunal
concluded that they did not fulfill the requirements of extermination as crimes against
humanity. Namely, the Trial Chamber noted that the element of crimes against
798
humanity requiring that the killings be committed on a large scale had not been met.
928. As to the possible involvement of the JNA in the alleged crimes, it was confirmed only
in relation to Dubrovnik. Regarding the other locations, the Applicant itself alleged that
in only three out of 41 listed locations the JNA was involved in some way (Škabrnja,
Nadin and Puljane).
929. However, even the witness statements o ffered by the Applicant show that the JNA
officers and soldiers tried to stop parami litaries who committed crimes in Škabrnja
and Nadin (see annexes 509, 573 and 574). In relation to the vill age of Puljane, even
though the Applicant al leges the involvement of the JNA in the a ttack on the village,
the actual crimes were perp etrated in 1993, long after th e JNA had withdrawn from
Croatia. 799
930. It is therefore respectfully submitted that the Respondent entails no responsibility for
the crimes allegedly committed in the area of Dalmatia as alleged by the Applicant.
798ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 404.
799Memorial, para. 5.207.
2917. Conclusion
931. On the basis of all of the above, it can be concluded that:
a) The evidence submitted by the Applicant is mostly comprised of
documents generated either by the A pplicant or organs close to the
Applicant. As such, this evidence is not reliable and its quality,
taken as a whole, is such that the Court cannot use it in reaching
any conclusion.
b) The witness statements and other documents are often inconsistent
with the allegations stated in the Memorial or with each other and
many of the Applicant’s allegati ons are not corroborated by any
evidence.
c) The majority of the claims of th e Applicant are not supported by the
judgments or even by the indictments of the ICTY.
d) The Applicant has failed to prove that many of the alleged crimes
occurred and, in any case, it has failed to prove that any of the
crimes were committed with genocidal intent, or that the crimes or
the alleged genocidal intent can be attributed to the Respondent.
292 CHAPTER VIII
THE CRIME OF GENOCIDE HAS NOT BEEN COMMITTED AGAINST
CROATS
932. In Chapter II the Respondent analyzed th e law on genocide through the practice of the
Court, as well as of the ad hoc Tribunals and other releva nt international bodies, and
recalled that the crucial requirement for the cr ime of genocide to be established is the
existence of the genocidal intent – the intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such. In this Chapter, the Respondent will show
that the Applicant failed to prove that th e crimes which were committed against Croats
were committed with that necessary intent.
1. The Crimes Were Not Committed with the Genocidal Intent
A. No Direct Evidence of the Alleged Genocidal Intent
933. The Applicant has failed to submit any direct evidence of the alleged intent to commit
genocide against Croats. In the first place, the Applicant has not offered any evidence
whatsoever of the existence of the alleged ge nocidal plan on the part of the authorities
of the Respondent or of the authorities of the Republika Srpska Krajina (RSK), for
whose actions the Applicant claims the Respondent is responsible.
934. The Applicant has, equally, failed to identify any statement of any person that could
engage the responsibility of the Respondent in which even a remote indication of the
genocidal intent can be found. For example, in para. 8.04 of its Memorial, when
summarizing the evidence of the alleged genocide, the Applicant referred to several
previously quoted statements of Se rbian politicians (Slobodan Miloševi ć, Mihajlo
Marković, Borislav Jović) or other persons (Jovan Ilić, Đoko Jovanić).
935. In the beginning, it should be noted that neither Mr. Jovan Ilić, the former president of the
Serbian Geographic Society, nor the (already at th at time) retired general Đoko Jovanić
293 could, in any way, engage the rs eponsibility of the Re spondent. But even if they could, what
they said does not even remo tely point out to the existence of the genocidal intent. 800
936. The same applies to the other three statements referred to in para. 8.04 of the Memorial.
Thus, in his speeches of March and April 1991, quoted in more detail in para. 2.98 of
the Memorial, Slobodan Miloševi ć simply spoke of the defens e of the interests of the
Serbian people in the SFRY and no reference whatsoever was made to the destruction of
other peoples in Yugoslavia, in particular of the Croatian people. The interest of the
Serbian people, according to Miloševi ć, was to “resist any act of dismantling our
homeland”, this homeland being the SFRY a nd not some “Greater Serbia” as the
Applicant claims. 801
937. The statement of Mr. Mihajlo Markovi ć, referred to more extens ively in para. 2.79 of
the Memorial, indeed spoke of the new borders in the SFRY, but it contains absolutely
nothing that could suggest the existence of the intent to destroy the Croatian people. 802
The same goes for the entry from Mr. Jovi ć’s memoirs, referred to in para. 3.36 of the
Memorial, which actually speak s about the changes in the JNA which occurred as the
result of the escalation of the conflict in the SFRY. 803
800
According to the quotation given by the Applicant in para. 2.103 of the Memorial, Mr. JovnaIildi the following:
“… I feel that it would be a just solution if a large part of Eastern Slavonia were to be united with Serbia and that
the Serbs from the [crisis] areas and Western Slavonia, who want to be citizens of the Third Yugoslavia, move
into that area. Vinkovci, Vukovar and Osijek, as important towns would be included in that part of Slavonia so
that the urban Serbs from Zagreb, Rijeka and other Croatian towns would have a place to move to…”
And also:
“…the part of Eastern Slavonia which remains a part of the Third Yugoslavia has to be considerably larger and to
include the municipalities of Slavonski Brod, Đakovo, Donji Miholjac, Valpovo, Našice and everything else that
lies east of that line. The Serbs from Western Slavonia, Croatian towns and the Diaspora would move into that area,
everyone who wants to, except the Serbs in the SAO Karjina, which remains a part of the Serbian nation.”
Retired General Djoko Jovathi, according to the Applicant (spara. 3.39 of the Memorial), “callethupon those present
[at the celebration of the 50 anniversary of the 1941 insurrectionin Croatia] to re-unite the JNA’s 6 Unit from Lika
Division with the aim to ‘finally bring to an endertsetd work – the liberatfr the vampire Ustashas’.”
801According to the quotation given by the Applicant in para. 2.98 of the Memorial, in March 1991 Miloševi ć
said the following:
“I have asked the Serbian government to carry out all pr eparations for the formation of additional forces whose
volume and strength would guarantee the protection of the interests of Serbia and the Serbian people … The
citizens of Serbia can be sure that the Republic of Serbia is capable of ensuring the protection of its own interests
and those of all its citizens and the entire Serbian people. The Republic of Serbia, the citizens of Serbia and the
Serbian people will resist any act of dismantling our homeland.”
In April, also according to the Applicant, Miloševi ć “told the Serbian Assembly that the reserve police were
being mobilised to: ‘enable us in every case to be secure, and to be able to defend the interests of our Republic
and, by God, the interests of the Serbian people outside Serbia’.”
802According to the Applicant’s quotation (see para. 2.79 of the Memorial), Mr. Marković said the following:
“Those nations, who want to leave, will do so, and those who prefer to stay, will stay in Yugoslavia. Yugoslavia
must determine its new borders… That new border must follow the line of the border determination between the
803bian and the Croatian people. The JNA must take control of the new border.”
The Applicant’s quotation (see para. 3.36 of the Memorial) of Mr. Jović’s memoirs reads:
294938. Having in mind that these statements were re ferred to in the Chapter that summarizes
the claims of the alleged genocide against Croats, the only conclusion is that they are the
strongest evidence the Applicant could come up with in order to prove the alleged
genocidal intent. But, not only do they fail to do so – they fail to prove even the
existence of a “simple” criminal intent.
B. No Evidence of a Pattern of Events Amounting to Genocide
939. Having failed to prove the existence of a pl an to commit genocide or offer any other
direct evidence of the alleged genocidal in tent, the Applicant proposed that the Court
infer specific intent from the “pattern of behaviour involving the prohibited acts and
804
targeted at a protected group”.
940. In Chapter II, the Respondent demonstrated that the practice of both the ICTY and the
Court require that the genocidal intent be convincingly s hown, and the Court’s
conclusion to that end from the Bosnia case is worth repeating here:
“Turning now to the Applicant’s conten tion that the very pattern of the
atrocities committed over many co mmunities, over a lengthy period,
focused on Bosnian Muslims and also Croats, demonstrates the
necessary intent, the Court cannot ag ree with such a broad proposition.
The dolus specialis, the specific intent to de stroy 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 pa ttern of conduct to be accepted as
evidence of its existence, it would ha ve to be such that it could only
805
point to the existence of such intent”.
“We really have no alternative but to intensively expel the Croats and Slovenes from the military, pull the
military back to the territory that we will definitely defend, and furiously purge it of HDZ forces. Anything else
is a rambling approach and a waste of time. Little by little, but slowly, this is in fact taking place.”
804Memorial, p. 339, para. 7.33.
805ICJ, Case concerning the Application of the Conventi on on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List No.
91, para. 373.
295941. The contention that a pattern of crimes, or a plurality of common crimes, can constitute
genocide is in this particular case further refuted by the practice ofthe ICTY. Namely, the
ICTY Prosecutor has, in the last 15 years, charged a number of formerhighest officials of
both Serbia and the RSK for crimes comm itted in Croatia. Among the accused are:
- Milan Martić, former President of the RSK and former Minister of
Interior and Minister of Defence of the same entity, charged with
crimes against humanity and violations of the laws and customs of
war with respect to the whole of the RSK, except Eastern and
Western Slavonia;
- Milan Babi ć, former President, Prime Minister and Minister of
Foreign Affairs of the RSK and the President of the Knin
Municipal Assembly, charged with crimes against humanity and
violations of the laws and customs of war with respect to the same
territory as Milan Martić;
- Goran Hadžić, another former President of the RSK, but also former
President of the Serbian Autonomous Region of Slavonia, Baranja
and Western Sirmium (SAO SBWS), charged with crimes against
humanity and violations of the laws and customs of war with
respect to the whole territory of Eastern Slavonia;
- Jovica Stanišić, former Head of the State Security Service of Serbia
(DB), and Franko Simatovi ć, former high official of the same
Service and alleged commander of that Service’s Special
Operations Unit, charged with crimes against humanity and
violations of the laws and custom s of war with re spect to certain
crimes on the territory of the whole RSK.
942. Most importantly, the list of indictees includes Slobodan Miloševi ć, former President of
806
Serbia and the alleged “key individual responsible for war crimes and genocide”, who
was charged with crimes against humanity, grave breaches of the Geneva conventions
and violations of the laws and customs of wa r with respect to the whole of the territory
of the RSK in Croatia.
806
Memorial, p. 3, para. 1.07.
296943. It is evident that the charges against the above mentioned accused relate to wider regions
of Croatia and, in the case of Miloševi ć, cover all of Croatia’s territory and all the
crimes alleged to have been committed th ere. Therefore, these cases do not involve
individual perpetrators accused of individua l crimes but, on the contrary, the highest
officials and leaders of Serbia and the RSK – the people whom one would have
expected to have had the genocidal intent if such an intent had existed.
944. In the Bosnia case, the Court found that the decisi on of the ICTY Prosecutor, either
initially or in an amendment to an indictment, not to include or to exclude a charge of
genocide may be significant to the Court when evaluating the case-law of the ICTY and
807
accepting its findings. And in the case of Croatia, it should be noted that, despite the
high level of the people who have been in dicted, the ICTY Pros ecutor did not charge
anyone for genocide.
945. The cases completed before the ICTY in connection to Croatia further show that,
although the crimes were established to have been committed, their gravity and legal
qualification was usually milder than originally charged by the Prosecutor. Thus, Milan
Martić, former President, Minister of Interior and Minister of Defence of the RSK, who
was charged with all the crimes that were committed in the regions of Banovina,
Kordun, Lika and Dalmatia (excluding Dubrovnik), was found guilty in the first
instance for the murder of 189 people an d sentenced to 35 years imprisonment. 808 This
809
sentence was, to the most part, confirmed by the Appeals Chamber.
946. The Trial Chamber found that Marti ć “ [w]as one of the most important and influential
political figures in the SAO Krajina and the RSK Government and that as Minister of
810
Interior he exercised absolute authority over the MUP”, while as the President of the
RSK he “held the highest political office and controlled the armed forces of the
RSK.” 811 Still, Marti ć was not even charged with ge nocide and, furthermore, he was
found not guilty of extermination, the crime which is, according to the International Law
807
See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List
No. 91, para. 223.
808ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007.
809Ibid., IT-95-11-A, Appeals Chamber Judgment, 8 October 2008.
810Ibid., IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 498.
811Ibid.
297 Commission, “closely related to the crime of genocide in that both crimes are directed
against a large number of victims”. 812 As a matter of fact, the Trial Chamber acquitted
Martić of extermination precisely because it f ound that “[t]he elemen t that the killings
813
be committed on large scale has not been met.”
C. Some Specific Factors on Which the A pplicant Wishes to Establish the Genocidal
Intent Do Not Prove the Existence of Such Intent
947. In para.8.16 of the Memorial, the Applicant ide tnfied 16 specific factors which, according to
the Applicant, “may be sufficient to demonsattre genocidal intent”. The Respondent will now
analyze each of those 16 factors and show thatnone of these factors proves the existence of
the alleged genocidal intent, whether theyeac ronsidered individually or collectively.
948. It is important to note, however, that thes e factors are listed in para.8.16 without any
explanation of the individua l factors in the main text of the Memorial. Some
explanations are contained in the correspond ing footnotes, but those footnotes mainly
consist of a number of cross-references to other chapters of the Memorial. This manner
of presentation of the most important evidence for the present case – the evidence which
is supposed to prove the existe nce of the alleged genocidal intent – is not only rather
unusual and quite unhelpful to the Court; it is also probably the result of the Applicant’s
deliberate intention to create a false picture of a large body of evidence on the existence
of the alleged genocidal intent, while, in f act, none of the evidence presented proves the
existence of such an intent. Furthermore, in many cases (as will be demonstrated below),
the presented evidence is partially or completely misinterpreted by the Applicant.
1. “The political doctrine of Serbian expansionism which created the climate for genocidal
policies aimed at destroying the Croatian pop ulation living in areas earmarked to
become part of ‘Greater Serbia’”
949. The evidence to which the Applicant refers in support of these claims are general
assertions concerning the Serbian A cademy of Arts and Sciences (SANU)
Memorandum and the proposals for redrawing the borders of the SFRY, presented in
812Draft Code of Crimes against the Peace and Security of Mankin d with commentaries, Yearbook of the
International Law Commission, 1996, Vol. II, Part Two, p. 48.
813ICTY, Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 404.
298 Chapter 2 of the Memorial. The Respondent already addressed these claims in Chapter
V 814and showed that neither the SANU Me morandum, nor the proposals for border
changes in the SFRY contained anything illega l, and that in any case they did not
contain even an indication of the intent to destroy the Croats.
950. In para.8.16, however, the Applicant attemp ts to link the SANU Memorandum and the
proposals for border changes with the events during the war in Croatia. The Applicant
does this in a manner which is typical of the entire Memorial – by making a general
overarching conclusion based on only two witn ess statements, both relating to the same
815
village (Tovarnik) and both of an extremely suspicious reliability. In this way the
Applicant actually demonstrated the full weakness of its claims, especially those
attempting to link the events of 1991 with the alleged “Serbian expansionism”.
2. “The statements of public officials, including systematic incitement on the part of State-
controlled media”
951. In the first place, it should be repeated that the Applicant failed to present any statement
of any of the persons capable of engaging the Respondent’s respon sibility that would
demonstrate the existence of the genocidal inte nt or could be qualified as incitement to
genocide. The Respondent has analyzed above (in paras.934-937) a few public
statements of Serbian officials to which the Applicant pointed out as examples of
genocidal intent and showed that neither of those statements contained even a criminal
intent, let alone a genocidal intent.
952. Aware of this, the Applicant turns to the media and persons who were outside of the state
structures of the Respondent in order to try to find some justification for its claims.
However, even there the App licant manages to find only a few examples and none of
them actually proves the existence of the genocidal intent. The Applicant, thus, refers to
the so called “Hate Speech” in the Serbian media but, in spite of the lengthy analysis
submitted in the appendices, failsto offer anything that would prove the genocidal intent.
814See supra, Chapter V, paras. 427-428.
815The statement of witness JV is particularly telling in this respect. Not only did she claim that a JNA reservist
had told her that their task had been to “kill and destroy everything Croatian”, she also claimed that the soldier
had told her that this task had been given to them directly by Mć (see para. 4.95 of the Memorial). The
probability of this being the truth is such that the Respondent does not even feel the need to try to challenge it.
299953. The Applicant also gives a lot of prominence to the speech of Mr. Milan Paroški from April
1991, when he said, while talking to Serbs in the village of Jagodn ajk in Baranja, that anyone
816
who claimed the land as theirs is a usurper w om they have the right to kill “like a dog”. At
the outset, the Respondent wishes to point ou ttat Mr. Paroški, altough indeed a member of
the Serbian Parliament in 1991, was an opposition l pitician who was never part of any of the
government structures in Serbia and whose infln uee on the political desiions made in Serbia
was marginal and reduced only to one vote thathe had in the Parliament of 250 deputies. In
any case, however, what he said in Jagodnja kas far from an incitement to genocide.
954. One statement to which the Applicant refers toin the “Hate Speech”Appendix, as well as
in the section of the Memorial deal ing with the incitement to genocide, 817is the alleged
statement of a leader of the party calle d Serbian National Renewal (Srpska Narodna
Obnova – SNO), who reportedly stated in an interview to an unknown newspaper: “I am
for genocide against the Croats”. However, the Applicant has never identified the person
who had allegedly made this statement nor has it ever submitted the copy of the original
interview. The only thing the Applicant di d was to quote a book by a late Serbian
journalist, Mr. Stojan Cerović, in which this statement wasretold. However, the quotation
offers no clue whatsoever as to how the au thor found out about the alleged statement of
the SNO leader, nor does it offer any referenc e to the newspaper (or any other media)
818
where the original interview was published. For these reasons, theApplicant’s claims in
connection to this statement are completely unsupported, but even if they had some basis
in the truth, a statement of a leader of a nationalistic opposition party, which had no
members in the Parliament and no influence on the political decision-making process in
Serbia, is not capable of engaging the responsibility ofthe Respondent in any way.
3. “The fact that the pattern of attacks on the Croat civilian population far exceeded any
legitimate military objectives necessary to secure control of the regions concerned”
955. The Applicant refers here to the battle for Vukovar, which is dealt with in more detail in
Chapter 4 of the Memorial. The Respondent already addressed the events concerning
Vukovar in Chapter VII and showed that the facts were much different than how the
816See Memorial, para. 2.56.
817See para. 50 of the “Hate Speech” Appendix, Appendices, Vol. 5, and para. 8.24 of the Memorial.
818See Appendices, Vol. 4, annex no. 28, where Mr. Cerović’s book was quoted.
300 Applicant seeks to portray them. The battle for Vukovar was, thus, a battle between two
opposing military forces, one trying to capture a town and the other one trying to defend
it, even when it became obvious that the defense was not possible. In this context, while
the use of force by the attacking forces may have exceeded the needs of a normal
military operation, and while it has certainly caused grave suffering to the civilian
819
population of Vukovar, regardless of that population’s ethnicity, there is nothing to
suggest that the attack on Vukovar was carried out with the intent to destroy the Croats
of Vukovar as such. This was, in a way, c onfirmed by the practice of the ICTY, whose
Prosecutor has indicted a number of people for the crimes committed in Vukovar, but
none of them for genocide.
4. “Contemporaneous videotaped ev idence of the genoc idal intent of those carrying out
the attacks”
956. The Applicant here refers again to the bat tle for Vukovar and to one statement of the
paramilitary leader Željko Ražnjatovi ć Arkan. In this case, th e Applicant again draws
general conclusions based on one single statement of one leader of a paramilitary unit.
But even this statement, quoted in para. 3.57 of the Memorial, concerns the armed
conflict between Serbian and Croatian forc es, while the “Ustashas”, referred to by
Arkan, are Croatian fighters who had barric aded themselves on first floors of the
buildings. The statement, accordingly, does not prove the existence of the genocidal
intent.
5. “The close co-operation between the JNA and the Serbian paramilitary groups
responsible for some of the worst atroci ties, implying close planning and logistical
support”
957. The question of the relationship between the JNA, the TO of the RSK and the
paramilitary units was addressed in Chapter VI of this Counter-Memorial and will be
further addressed in the next Chapter, together with the relevant law on the subject. Here
it suffices to say that, whatever that relati onship may have been, it cannot, in any way,
be considered as a proof of genocidal intent.
819
The Applicant constantly fails to mention that Serbs were present in Vukovar during the siege of the town as
well and that they suffered both from the JNA artilleryattacks and from the Croatian forces that ruled the town.
3016. “The systematic nature and the sheer scale of the attacks on Croatian civilians”
958. The systematic manner and the large scale of crimes is an element of crimes against
humanity. 820It is not, however, an element of the crime of genocide, where the existence
of the specific intent to destroy the group in whole or in part has to be convincingly
821
shown. In the particular case, even if it is established that the crimes committed
against Croats were systematic and/or comm itted on the large scale, these two elements
cannot substitute the necessary requirement that the crimes be committed with the
genocidal intent – the element which the Applicant failed to prove.
959. In fact, the Applicant’s request that the Court infer the genocidal intent from the alleged
systematic nature and the scale of the crimes is nothing but a repetition of the claims on
the existence of a pattern of criminal conduct that w ould amount to genocide on the
basis of accumulation of “simple crimes”. The erroneousness of this approach was
explained above, in paras.939-946.
7. “The fact that ethnic Croats were consistently singled out for attack whilst local Serbs
were excluded”
960. Again, the fact that most of the crimes co mmitted were indeed directed against ethnic
Croats and not against Serbs is not enough to prove the existence of the genocidal intent.
In the circumstances of a civil war between two ethnic groups, victims of the most of the
crimes committed by Serbs were ethnic Croats, as members of the opposing faction in
the civil war, just as most of the victims of the crimes committed by Croats were ethnic
Serbs. While this, of course, does not justify any of the crimes, and in particular those
crimes committed against civilian population, it still does not prove that the genocidal
intent existed. At the most, this can prove that the crimes were committed with the
discriminatory intent, which is not enough for the crime of genocide to be established.
961. To this effect, the Court concluded in the Bosnia case:
“In addition to those mental elements, Article II requires a further mental
element. It requires the establishment ofthe “intent to destroy, in whole or
820See e.g. Commentary on Article 17 of the Draft Code of Crimes against the Peace and Security of Mankind,
Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 47, paras. 3–4.
821See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List
No. 91, para. 373.
302 in part, … [the protected] group, as such”. It is not enough to establish, for
instance in terms of paragraph (a), that deliberate unlawful killings of
members of the group have occurred. The additional intent must also be
established, and is defined very precisely. It is often referred to as a
special or specific intent ordolus specialis; in the present Judgment it will
usually be referred to as the “specific intent (dolus specialis)”. It is not
enough that the members ofthe group are targeted because they belong to
that group, that is because the perpetrator has a discriminatory intent.
Something more is required. The acts listed in Article II must be done
with intent to destroy the group as such in whole or in part. The words “as
822
such” emphasize that intent to destroy the protected group.”
8. “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 home”
962. In the first place, it should benoted that the Applicant’s claims with respect to this element
of the alleged genocidal intent are based on the witness statements of a highly suspicious
823
reliability. But even if those witness statements were admissible and reliable (quod non),
they would only prove that the alleged practiceof identification of Croa ts and their property
was effected in three villages,and not as a general ru le throughout the whole territory of the
RSK. In any case, however, ifCroats were indeed required toidentify themselves and their
property in the mannersuggested bythe Applicant,this would still onlyprove the existence
of a discriminatory intent (and this only ifsome crimes were indeed committed against the
people who wore the ribb ons), but notthe existence of agenocidal intent.
9. “The number of Croats killed and missing as a proportion of the local population”
963. The Applicant here repeats the claim from the beginning of the Memorial that 10,572
persons were killed and 1,419 are still missi ng. The Applicant, however, does not offer
any proof that would confirm the alleged number of people ki lled, while the only
evidence on the number of the missing comes from the Applicant’s own government. 824
822Ibid., para. 187.
823See supra Chapter III, paras.153–158.
824See Memorial, p. 4, para. 1.09.
303964. According to the judgments and the indict ments of the ICTY, th e number of people
killed in crimes committed by Serbs during th e war in Croatia is significantly smaller
than claimed by the Applicant. For example, Slobodan Miloševi ć, who was charged
with all the crimes alleged to have been co mmitted in the territory of the Republic of
825
Croatia, was charged with the murder of 716 people, which is more than 14 times less
than the number of killings alleged by the Applicant.
965. Even the evidence submitted by the Applicant in the form of witness statements does
not support its claims on the number of peopl e killed. In this respect, some evidence
(regardless of its re liability) was presented only in connection to between 2,500 and
3,000 people killed and about 400 missing. 826
966. In legal terms, the number of people kill ed as a proportion to local population could
indeed be an element on which the genocidal intent could be inferred. 827 But then, the
facts of this case, even as presented by the Applicant, actually point out to the non-
existence of the genocidal intent.
967. Thus, with respect to the very first village mentioned in Chapter 4 of the Memorial, the
village of Tenja, the Applicant offered some evidence for the killing of 37 people. On
the other hand, the statistics provided by the Applicant and referred to in para.4.20 of the
Memorial, show that 2,813 Croats lived in Tenja before the war. It follows thus that the
number of people killed (even if the Applicant’s claims are accepted as true) stands for
828
1.31% of the Croatian population of Tenja.
968. With respect to the whole of Eastern Slavonia, the region in Croatia where, according to
the Applicant, most of the crimes were committed, some evidence was offered in
825In the Milošević Indictment, the number of deaths is not given as a single figure, but it can be calculated by
adding individual figures related to specific incidents. In this way, one comes to the figure of “at least” 716
people for whose murder Miloševi ć was charged. “At least” in this context means that the number of victims
could be higher, but that the Prosecutor only had sufficient proof for 716 victims. See ICTY, Milošević, IT-02-54,
Initial Indictment “Croatia”, 27 September 2001.
826
These numbers cannot be calculated precisely, since the witness statements (and the corresponding claims of
the Applicant) often overlap and sometimes do not give even an approximate number, while the Applicant never
827e an effort to state precisely how many people were allegedly killed in particular towns or villages.
828See e.g. ICTR, Kayishema and Ruzindana, ICTR-95-1-T, Judgment and Sentence, 21 May 1999, para. 93.
It should not be forgotten, however, that the ICTY has never indicted anyone for the crimes allegedly
committed in Tenja, while the Applicant claims on the crimes allegedly committed in Tenja are based on highly
unreliable evidence. For more details see Chapter VII, paras. 659–664.
304 connection to approximately 1,700 people killed. 829On the other hand, the statistical
data presented by the Applicant 830 (based on the 1991 census) shows that 420,359
Croats lived in Eastern Slavonia before the conflict. Thus, even if one accepts that all
1,700 people were killed as the Applicant suggests ( quod non), and that they were all
Croats (which was not the case even according to the Applicant), this would still amount
to no more than 0.4% of the Croatian population of Eastern Slavonia.
969. While every loss of life requi res regret and every crime re quires punishment, the above
percentage could hardly qualif y as a proof of the alleged genocidal intent. On the
contrary, it could only be a cl ear proof of the absence of such intent, since it shows that
the number of people killed (even according to the Applicant) was relatively small as a
proportion to the whole population, despite th e fact that the opportunity to kill much
more people undoubtedly existed.
10. “The nature and extent of the injuries inflic ted, including injuries with recognisably
ethnic characteristics”
970. The Applicant here refers to a couple of crimes which, if they had been committed as
the Applicant claims they were, would qualify as some of the most monstrous crimes in
the conflicts in the former Yugoslavia (even though they would, by themselves, still not
be able to prove the existence of the genocidal intent). However, the evidence which the
Applicant offered in support of its claims is completely insufficient to prove the crimes.
971. The Applicant, thus, refers to the alleged mutilation of a Croat in the village of Vo ćin,
elaborated in more details in para.5.33 of the Memorial. However, the only evidence
which the Applicant offered in support of its claim concerning the monstrous crime is a
book by an American physician of Croatian or igin, Dr. Jerry Blaskovich. However, if
one reads Dr. Blaskovich’s book, one may see that he was not present in Vo ćin when
this crime allegedly took place and that the only evidence he offered in respect of the
831
claims about the mutilation were unidentified witness statements. But if there were
829Once again it is difficult to establish the exact number of victims mentioned in the witness statements that the
Applicant submitted as evidence, since the statements often overlap or give only approximate numbers.
830Memorial, Annexes, Regional Files, Vol. 2, Part 1, p. 3.
831See Dr. Jerry Blaskovich, Anatomy of Deceit, pp. 37-41, available at
www.jblaskovich.com/PDF/AnatomyofDeceit.pdf
305 witnesses to this alleged atrocity, why has the Applicant not submitted any statement of
any of those witnesses, especially having in mind that all the other evidence which the
832
Applicant has submitted in connection to its claims on Vo ćin are witness statements?
Or why was this alleged mutilation never disc ussed before the ICTY, where charges for
crimes committed in Vo ćin were brought agai nst Slobodan Miloševi ć and Vojislav
Šešelj? In fact, this was the only reference the App licant made to the book of Dr.
Blaskovich, conveniently entitled Anatomy of Deceit.
972. Equally misleading is the claim that a pre gnant woman was mutilated post mortem in
Vukovar, referred to in somewhat more details in para.4.166 of the Memorial. The claim
concerning this horrific crime comes from a witness LjD, but her statement, notably
shorter than most of the other witness statements submitted by the Applicant 833, does not
offer any credible information about the alle ged crime. In fact, from the statement of
LjD it is impossible to concl ude either where or when the alleged crime took place, or
whether the witness saw the crime or heard ab out it from her son in law or from some
other person. Nobody else ever claimed that a crime like this had taken place, nor was
anything of the kind mentioned before the IC TY, where a number of people were tried
for crimes committed in Vukovar. Consequently, the inclusion of this witness statement
in the Memorial is a good example of both the unreliability of the evidence submitted by
the Applicant, and of the Applicant’s completely uncritical approach to evidence, which
834
serves no purpose to the Court.
973. Also unsupported are claims on Croats being crucified in Vukovar. In support of these
claims the Applicant offers only two statements and both of them relate to the murder of
the same person, called “Cigo”. 835 However, the first statement, that of a certain MD,
was not even submitted by the Applicant (alt hough it was referred to first in para.4.157
and then referred back in para.8.16) 836, while the other statement, that of the victim’s
832See Memorial, paras. 5.28–5.35.
833See Memorial, Annexes, Regional Files, Vol. 2, Part 1, annex no. 143.
834Interestingly, in the Hate Speech Apendix (at para. 55), the Applicant devotes a lot of attention to the case of
a Serbian photographer who fabricated a story on the slaughter of 41 Serbian children in Borovo Naselje near
Vukovar, giving this as an example of incitement to hatred against Croats. On the other hand, the Applicant uses
835ilar fabricated stories in the Memorial with no other purpose than to shock the Court.
836See Memorial, para. 4.157.
The Applicant did submit a statement of witness AD, who did mention the killing of a person called “Cigo”,
but it is completely unclear from the statement whether the witness saw the alleged killing or only heard about it.
See Memorial, Annexes, Regional Files, Vol. 2, Part 1, annex no. 132.
306 wife FJ, contains no direct evidence of the event. 837Once again, the evidence presented
by the Applicant is not only unreliable, but it was also used in a both uncritical and
misleading manner. Furthermore, it is completely unclear why would a crucifixion, even
if it happened, be an “injury with ethnic characteristics”, since Serbs and Croats are both
Christians, albeit of different denominations (Ser bs being Orthodox and Croats
Catholic).
11. “The use of ethnically derogatory language ineth course of acts ofkilling, torture and rape”
974. The Respondent has already pointed out to th e unreliability of the evidence submitted
by the Applicant and the evidence offered in support of the claims on the use of
ethnically derogatory language is not an exception. However, the Respondent is ready to
accept that some crimes that were committed against ethnic Croats were indeed
accompanied by the use of such language. Neve rtheless, these isolated incidents can, at
the most, be a proof of the existence of a discriminatory intent (and that only on the part
of the individual perpetrators), but they cannot prove the existence of a genocidal intent
to destroy the Croatian population. The difference between the discriminatory intent and
the genocidal intent has already been addressed above, in paras. 960–961.
12. “The forced displacement of the Croat population and the means adopted to that end”
975. The Respondent does not contest that a la rge part of the Croatian population was
displaced from the areas which formed part of the RSK. However, forcible transfer as
such is not an actus reus of genocide, as the Court noted in the Bosnia case (when
making the distinction between genocide and “ethnic cleansing”):
“It will be convenient at this point to consider what legal significance the
expression [‘ethnic cleans ing’] may have. It is in practice used, by
reference to a specific region or area, to mean ‘rendering an area
ethnically homogeneous by using force or intimidation to remove
persons of given groups from th e area’ (S/35374 (1993), para. 55,
Interim Report by the Commission of E xperts). It does not appear in the
Genocide Convention; indeed, a pr oposal during the drafting of the
837
See Memorial, Annexes, Regional Files, Vol. 2, Part 1, annex no. 129.
307 Convention to include in the definition ‘measures intended to oblige
members of a group to abandon their homes in order to escape the threat
of subsequent ill-treatment’ was not accepted (A/C.6/234). It can only be
a form of genocide within the m eaning of the Convention, if it
corresponds to or falls within one of the categories of acts prohibited by
Article II of the Convention. Neither th e intent, as a matter of policy, to
render an area ‘ethnically homogeneous’, nor the operations that may be
carried out to implement such policy, can as such be designated as
genocide: the intent that characteri zes genocide is ‘to destroy, in whole
or in part’ a particular group, and deportation or displacement of the
members of a group, even if effected by force, is not necessarily
equivalent to destruction of that group, nor is such destruction an
automatic consequence of the displacement.” 838
976. The “ethnic cleansing” may, how ever, constitute genocide, but only if it can be
characterized as “deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part” (Art. II (c) of the Convention),
and only if such action is carried out with the necessary specific intent (dolus specialis),
that is to say with a view to the destruction of the group, as distinct from its removal
839
from the region.
977. In the present case, the Applicant has failed to prove: a) that the displacement of Croats
from the territories under the control of Serbian forces can be characterized as
“deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part”; b) that the forc ible displacement (or any other
crime, for that matter) was carried out with the intent to destroy the Croatian population.
Therefore, in the case of forcible transfer of Croats neither the physical nor the mental
element of the crime of genocide have been met. Consequently, forcible transfer can
neither be genocide by itself nor can it serve as inferential evidence on the existence of
the genocidal intent which the Applicant failed to prove otherwise.
838ICJ, Case concerning the Application of the Conventi on on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 190.
839Ibid.
30813. “The systematic looting and destruction of Croatian cultural and religious monuments”
978. The Respondent does not contest that some of the Croatian cultural and religious
monuments were looted, damaged and, in some cases, destroyed during the war.
However, unlike forcible transfer of the population, which can, under certain
circumstances, be considered as “deliber ately inflicting on the group conditions of life
calculated to bring about its physical destruc tion in whole or in pa rt”, destruction of
historical, cultural or religious property can never be considered as one of the genocidal
acts within the meaning of the Genocide Convention. 840In light of that, destruction of
historical, cultural or religious property can even less serv e as inferential evidence on
the existence of the genocidal intent wh en no other convincing evidence on the
existence of such intent has been offered.
14. “The suppression of Croatian culture and religious practices among the remaining
population”
979. The evidence to which the Applicant refers in support of its claims on the “suppression of
Croatian culture” is a ve ry illustrative example of the Appilcant’s maliciousand misleading
use of the evidence, where general and erroneous conclusions are drawn based on single,
often tendentiously inte rpreted witness statement. Actually, none of the witnesses to which
the Applicant referred to in the footnote 68 on page 385 of the Memorial confirmed the
Applicant’s allegations, and th e differences between what was said by some witnesses and
what the Applicant seeks to drawout of it are so striking that they cannot be interpreted as
841
anything else but example ofmala fideson the part of the Applicant.
980. In any case, the Applicant failed to prove the existence of a policy of suppression of the
Croatian language and culture, but even if the allegations were true ( quod non), that
would still not be a proof on the existence of the genocidal intent, nor could the alleged
practices qualify as any of the acts falling under Article II of the Genocide Convention.
840See ibid., para. 344.
841For example, the Applicant referred to the witness stat ement of ML, as a proof of “the forced use of Cyrillic
in Tompojevci”. In fact, Ms. ML’s statement contains no such allegation, even if it is accepted as fully accurate.
What she actually said was that during an interrogation by the local Serb leader, that person shouted at her telling
her that “Latin letters won’t be written in this village anymore”. Neither Ms. ML nor any other witness provided
evidence that this was actually put into practice and it isobvious that the witness statement does not prove, as the
Applicant alleges, that the use of Cyrillic was forced in Tompojevci.
309981. Additionally, it is important to note that the Applicant puts a lot of negative emphasis on
the use of Cyrillic script in the areas which formed part of the RS K, but offers no real
evidence that the use of Latin script was ind eed forbidden in those areas. On the other
hand, one of the constitutional changes that the Croatian government adopted in the new
Constitution of December 1990 was exactly the abolishment of the constitutional
842
guarantee on the use of the Serbian language and the Cyrillic script.
16. “The consequent, permanent and eviden tly intended demographic changes in the
regions concerned”
982. This is essentially a repetition of the claims on the forcible displacement of the Croatian
population. These claims were addressed above, in paras. 975-977.
17. “The failure to punish genocidal acts”
983. The Applicant’s claims on the alleged failu re to punish genocidal acts are addressed
below (in Chapter IX).
D. Conclusion
984. On the basis of the arguments set above, it can be concluded that:
a) The Applicant has, in the first place, failed to offer credible proof that
many of the alleged crimes were committed or that they were
committed in the way it was claimed by the Applicant;
b) More importantly, the Applicant has failed to prove that the crimes
that were committed in Croatia were committed with the intent to
destroy the Croats, either in whole or in part;
c) The Applicant has offered no proof on the existence of the plan to
commit genocide against Croats, nor has it offered any other
credible proof on the existence of the genocidal intent on the part
of either the authorities of the Respondent or on the part of the
authorities of the RSK, for whose actions the Applicant claims the
Respondent is responsible;
842
See supra, Chapter V, para. 463.
310 d) The Applicant’s claims on the existence of the pattern of acts that
would prove the existe nce of the genocidal intent are equally
erroneous and are legally not supp orted by the practice of either
the Court or the ICTY;
e) Some specific allegations from which the Applicant seeks to infer the
genocidal intent are not sufficien t, either taken individually or
collectively, to establish the existence of such intent;
f) The only possible conclusion is that the crime of genocide was not
committed against the Croats by either the Respondent or by the
Serbs from Croatia.
2. The Crimes of Conspiracy, Incitement, Attempt and Complicity
were not Committed either
985. In the previous paragraphs of this Chapter, the Respondent demonstrated that the crime
of genocide was not committed against Croats. In the following paragraphs, the
Respondent will show that the other offences , prohibited by Article III of the Genocide
Convention, were not committed either.
A. Conspiracy
986. In Chapter II of this Counter-Memorial, th e Respondent analyzed the findings of the
843
Court concerning conspiracy, as well as other relevant case law on the subject.
Accordingly, the crime of conspiracy to co mmit genocide, which is usually defined as
“an agreement between two or more persons to commit the crime of genocide”, 844 can,
in the view of the Court, be committed either simultaneously with genocide, or
independently, if genocide was not committe d, but, in terms of state responsibility,
becomes relevant only in the latter case, sinc e it is otherwise absorbed by the crime of
845
genocide itself.
843See Chapter II, paras. 92–95.
844ICTR, Musema, ICTR-96-13-A, Judgment and Sentence, 27 January 2000, para. 191.
845See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List.
No. 91, para. 380.
311987. In its Memorial, the Applicant claims th at the act of genocide itself has been
committed 846and offers no particular proof on the existence of the preceding conspiracy
to commit that alleged genocide. The evidence that the Applicant offers in support of its
claims on conspiracy is, actually, nothing but a repetition of previously stated arguments
with which the Applicant seeks to prove th e existence of the genocidal intent. The
Applicant therefore claims that:
“The systematic and co-ordinated nature of these crimes was achieved –
and could only have been achieved – through the adoption of a policy on
the part of the FRY and Serbian leadership, the JNA and paramilitary
commanders of committing, or delibera tely authorizing and facilitating
the commission of, the crimes concerned.” 847
988. The Applicant, however, offers no evidence whatsoever that the alleged policy was
adopted, but what it actually does is simply repeat the contention that the genocidal
intent should be inferred from a certain pattern of behavior, without offering any
convincing evidence on the existence of such intent. The erroneousness of this
contention was already explained earlier in this Chapter.
989. The Applicant also refers to the alleged fa ilure of the FRY to punish the individuals
allegedly responsible for genocidal acts, the public speeches of some Serbian opposition
politicians and “the honours bestowed upon the members of the JNA involved in the
acts” 84. In para. 22 of this Chapter, the Respondent already addressed the speech of Mr.
Paroški and showed that neither could his speech be qualified as an incitement to
genocide nor is Mr. Paroški capable of engaging the responsibility of the Respondent in
any way. The same applies for the speech of Mr. Šešelj, which is addressed in more
849
details in Chapter V of this Counter-Memorial. The allegations concerning the alleged
honors for the members of the JNA involved in the alleged genocidal acts are addressed
850
in Chapter IX, while the claims on the failure to punish are addr essed further in
Chapter IX, paras. 1051–1057. None of these cl aims, however, is even theoretically
846See Memorial, para. 8.20.
847Ibid.
848Ibid.
849See Chapter VI, paras. 642–645.
850See Chapter IX, paras. 1035–1037.
312 capable of proving conspiracy to commit genocide, since they contain absolutely
nothing that could prove the existence of an agreement between two or more persons to
commit the crime of genocide against Croats.
990. It follows, thus, that the Applicant has faile d to offer any evidence on the existence of a
plan or of any type of agreement, between any of the persons capab le of engaging the
responsibility of the Respondent, that would ev en remotely resemble the conspiracy to
commit genocide. In as much as the claims presented by the Applicant on the existence
of conspiracy actually relate to the allege d genocide itself, they have already been
addressed in various sections of this Counter-Memorial.
B. Incitement
991. What is apparent from the section in which the Applicant attempts to address the alleged
incitement to genocide is that it contains absolutely no reference to any speech or a
similar public statement of any of the officials of either the Respondent or the SFRY or
the JNA or even the RSK. Instead, the Appl icant refers to the “hate speech” in the
Serbian media and quotes again the speech of Mr. Paroški from April 1991. This speech,
which was given by a marginal politician w ho was never part of any of the government
structures in Serbia, is, in turn, used by the Applicant as a “proof” for the crime of
genocide itself, conspiracy to commit genocide and incitement to genocide. 851This is
the best illustration of how weak the Applicant’s case actually is.
992. The other examples from the Hate speech Appendix equally offer nothing that would
prove the incitement to commit genoci de, while one example that could, on a prima
facie basis, look as if it contains an incite ment to commit genocide, was actually not
proved by the Applicant. This particular statement of a l eader of an extreme-right
opposition party allegedly saying in an interv iew that he was for genocide against the
Croats was addressed above in para. 954. The Respondent showed that the Applicant did
not prove in a reliable manner that the alleged statement wa s indeed given and that, in
any case, the person who had allegedly give n that statement could not engage the
responsibility of the Respondent.
851
See Memorial, paras. 8.16, 8.20 & 8.24.
313993. Finally, the Applicant referred to an order which was given by a paramilitary leader
Željko Ražnjatović Arkan during the battle of Vukovar, and which was also captured on
video. This order was addresse d above in para. 956, where it was demonstrated that it
contained nothing that would prove the genocidal intent, even if Arkan’s action could be
attributed to the Respondent ( quod non). At this point, it should also be noted that this
statement could not even legally qualify as incitement to genocide, since the statement
was not public in terms of the Genocide Convention and the subsequent interpretation of
852
the word “public”.
C. Attempt
994. The Applicant devotes only one paragraph of itsMemorial to the allegation that attempt to
commit genocide was also committed by the Res pondent. This is, of course, for the reason
that the Applicant claims thatgenocide itself was committed,in which case the claims on
the attempted genocide would be unnecessary and, as the Court put it in the Bosnia case,
853
“untenable both logically and legally”. Still, the Applicant does not follow this logic to
the end, since it claims that in some parts of Croatia, such as Dubrovnik, “genocide was
854
attempted but not completed”. This claim of the Applicant, however, is quite illogical
from the legal point of view and in comple te disagreement with other parts of the
Memorial, since it implies that not one ge nocide was committed or attempted against
Croats, but that there was a series of “mini-ge nocides” in various parts of Croatia, some of
which were completed and some only attempted.
995. Nevertheless, whatever is the position of the Applicant on this issue, it is ultimately of
no significance for the outcome of the case. In Chapter II, 855 the Respondent analyzed
the existing law on the attempted genocide and showed that attempt to commit genocide
requires the same intent as genocide itself – th e intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such. The Applicant has failed to prove
that any of the crimes against Croats was committed or attempted with such intent and
has, thus, failed to prove that either genocide or attempted genocide were committed.
852See Chapter II, para. 99.
853ICJ, Case concerning the Application of the Conventi on on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 380.
854See Memorial, para. 8.27.
855See Chapter II, paras. 102–104.
314D. Complicity
996. The Applicant claims that the Respondent is also responsible for complicity in genocide,
although it does not elaborate the subject in much detail, since it essentially claims that
the Respondent itself committed genocide.
997. In light of the Cour t’s decision in the Bosniacase, 856the question of the Respondent’s
responsibility for complicity ingenocide could arise if the Cour t finds that genocide against
Croats was indeed committed, but that it wasm comitted by (for example) the RSK and not by
the Respondent and that the actions of the RSK could not be attributed to the Respondent.
While the Respondent fully agreesthat the second condition hasbeen met, namely that the
857
actions of the RSK cannot beta tributed to the Respondent, the first and the more important
condition has not – genocide was not committed aa ginst Croats and, as a result, the question
of the Respondent’s responsibility for cmoplicity cannot ariseeven theoretically.
998. In addition, the Court’s reasoning from the Bosniacase would require athird condition to be
met in order for the Re spondent to be held responsible for complicity in genocide – the
858
Respondent would have tobe aware of the genocidal inte nt of the principal perpetrator, in
this case the RSK. The Applicant has, how ever, failed to offe r any proof that the
Respondent was aware of the existence of th e genocidal intent on the part of the RSK
authorities, which, admittedly,would in any case be impossibe l to prove since the Applicant
failed to offer any proof onthe existence of the genocidalintent in the first place.
E. Conclusion
999. For the reasons set above, it can be concluded that:
a) The Applicant has failed to prove the existence of a plan or of
any type of agreement, between any of the persons capable of
engaging the responsibility of the Respondent, that could
qualify as conspiracy to commit genocide;
856For more detailed legal analysis of the subject see Chapter II, paras. 105–114.
857The question of attribution is addressed in Chapter IX of this Counter-Memorial.
858See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List.
No. 91, para. 421.
315 b) The Applicant has failed to prove that any of the persons
capable of engaging therespon sibility of the Respondent
incited the commission of genocide;
c) The Applicant has failed to prove that the crime of attempt to
commit genocide was committed since it has failed to prove
that any crime against the Croats was committed or attempted
with the genocidal intent;
d) The Applicant has failed to prove the Respondent’s
responsibility for complicity in genocide, since it has failed to
prove that genocide was committed in the first place, or if
genocide was committed ( quod non), it has failed to prove
that the Respondent was aware of the genocidal intent of the
principal perpetrator.
316 CHAPTER IX
THE QUESTION OF ATTRIBUTION
1. The Applicable Law
1000.The responsibility of the Respondent for the breaches of the Genocide Convention
alleged by the Applicant depends on whether su ch acts, to the extent they are proved
and to the extent the Genocide Convention is applicable as a matter of treaty law, can be
attributed to the Respondent under the rules of customary international law of State
responsibility. As the Court stated in the Bosnia case,
“First, it needs to be determined whether the acts of genocide could be
attributed to the Respondent under the rules of customary international law
of State responsibility; this means ascertaining whether the acts were
committed by persons or organs whose conduct is attributable, specifically in
the case of the events at Srebrenica, to the Re spondent. Second, the Court
will need to ascertain whether acts of the kind referred to in Article III of the
Convention, other than genocide itself, were committed by persons or organs
whose conduct is attributab le to the Respondent under those same rules of
State responsibility: that is to say, the acts referred to in Article III,
paragraphs (b) to (e), one of these being complicity in genocide.” 859
1001. On this basis, the Court proceeded to consider issues of attribution in the Bosnia case
and in that context applied Ar ticle 4, as well as Article 8, of the ILC Articles on State
Responsibility. 860According to these provisions, conduct is attributable to a State if (a)
it is the conduct of any State or gan (Article 4), or (b) it is the conduct of the person or
group of persons acting on the instructions of , or under the directi on or control of, the
State in question (Article 8). The Court confirmed that these two rules reflect customary
861
international law.
859
ICJ, Case concerning the Application of the Conventi on on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 379.
860ICJ, Case concerning the Application of the Conventi on on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
paras. 385 & 398.
861Ibid.
3171002. The Applicant and Respondent are in agreemen t that these two rule s are relevant and
862
may be applied in the present case. This is also the case with the principle contained
in Article 11 of the ILC Articles on Stat e Responsibility which provides that the
conduct, which is otherwise not attributable to the State, if acknowledged and adopted
by the State as its own shall be considered an act of that State. 863
1003. However, the Respondent does not agree with the Applicant’s erroneous claim that
Article 10, paragraph 2, of the ILC Articles on State Responsibility is also applicable in
the present case. 864 According to this provision, the conduct of an insurrectional or
other movement which subsequently succeed s in establishing a new State shall be
considered an act of that new State under in ternational law. As already discussed, the
principle contained in Article 10, paragraph 2, does not re flect a rule of customary
international law and, as such, it cannot be ap plied in the present case. It has also been
demonstrated that the said provision is not applicable considering its own terms and the
circumstances of the present case. Conseque ntly, Article 10, para graph 2, of the ILC
865
Articles on State Responsibility is not applicable in the present case.
2. The Principles of Attribution Applied in the Present Case
A. GenerR alemarks
1004.Starting from the legally and factually erroneous assumption that the FRY could be held
responsible for all acts of the SFRY organs since mid-1991, the Applicant claims that
“the FRY is accordingly responsible for th e conduct of its organs and officials as
regards any breaches of the Convention committed by them, or by persons under their
direction or control, at a ny time after May 1991. Evidently this covers the conduct of
the Serbian political leadership, namely President Milošević and others.” 866
1005. As already demonstrated, this thesis is deeply flawed. It does not hold as a matter of
fact and it does not hold as a matter of law. There is simply no legal or factual basis to
link the FRY with the conduct of the SFRY au thorities in the way the Applicant does.
Moreover, since the FRY did not even exis t before 27 April 1992, th ere is even less
862
See Memorial, para. 8.33 (a)-(b).
863See Memorial, para. 8.33 (d).
864See Memorial, para. 8.33 (c).
865See supra Chapter IV, para. 365 (2).
866Memorial, para. 8.46.
318 basis to regard the SFRY organs as the FRY organs, as the Applicant misleadingly
does (“the FRY is accordingly responsible for the conduct of its organs and officials...
at any time after May 1991 ” (emphasis added)). The SFRY existed as a subject of
international law in 1991 and in early 1992, and consequently the conduct of the SFRY
organs must be attributed to the SFRY and not to the FRY. This conclusion is equally
valid for the conduct of all SFRY organs, in cluding those belonging to “the Serbian
political leadership namely President Miloševi ć and others.” Only once the FRY was
created on 27 April 1992 could it have its own organs and en tail responsibility for the
conduct of these organs (including those belonging to the Serbian political leadership).
1006. That the FRY cannot entail responsibility fo r the conduct of SFRY organs is a crucial
consideration for questions of responsibil ity that arise in the present case. It
necessitates making a clear di stinction between the conduct of the SFRY organs and
other acts that may be attributed to the SFRY, on the one hand, and the conduct of the
FRY organs and other acts th at are attributable to the FRY, on the other. This
distinction must be applied to the facts in the present case and must lead to a dismissal
of the Applicant’s claims related to the po ssible responsibility of the SFRY, for which
the Court does not have jurisdiction and which cannot be attributed to the FRY.
B. Alleged Acts of State Organs
1007.In accordance with the preceding discussion, th e conduct of the State organs alleged by
the Applicant in the present case must be divided into two gr oups: (a) conduct of the
SFRY State organs, and (b) conduct of the FRY State organs. It is clearly erroneous and
misleading to merge them into one category as the Applicant has purported to do (“Acts
of the Armed Forces (JNA/VJ)” 867).
1008.Most of the events that are claimed to be “genocidal activities” by the Applicant relate
to a period of time (the year 1991 in its en tirety and early 1992) in which the alleged
conduct could, as a matter of principle, only be attributed to the SFRY and not to the
FRY. Thus, out of approximately 120 incide nts described in the Memorial, only 8 are
alleged to have taken place after April 1992. I ndeed, a vast majority of the incidents
described in the Memorial took place in 1991.
867
See Memorial, at p. 397.
3191009.With respect to all the events that took place before the FRY came into existence, on 27
April 1992, no question of possible international responsibility of the FRY can arise as a
matter of principle. With respect to the incidents mentioned in the Memorial that took
place after 27 April 1992, it is submitted th at none of these were committed by FRY
organs, nor can be attributed to the FRY on any other basis.
1010.While the responsibility of the SFRY is not andcannot be the subject-matter of the present
case, it should nevertheless benoted for the record that in relation to many events that took
place before 27 April 1992 the Applicant has not provid ed evidence showing that the
conduct alleged was indeed the conduct of the SFR Y organs. According to the account
given in the Memorial, only 38 out of a total of 120 of these events actually involved the
JNA, and in many cases it is not even claimd ethat the JNA committedthe crimes alleged.
1011.Further, the Applicant claims that “Ar ticle 4 [of the ILC Draft Articles on State
Responsibility] also governs the attribution to the FRY of the acts of Serb and Serbian
paramilitary groups in Croatia, to the extent that they were in fact treated as part of the
armed forces of the FRY.” 868
1012.The Respondent denies that any of the paramilitary groups in Croatia were in fact part of
the armed forces of the FRY. Moreover, it sh ould be noted that the quoted statement is
misleading as it clearly confuses the possible responsibility of the SFRY with that of the
FRY. The present case can only concern claims relating to the possible responsibility of
the FRY for events that occurred after itcame into existence on 27 April 1992.
1013.It should be emphasized that the Appli cant’s statement purports to introduce an
incorrect standard of attribution when it claims that State responsibility should be
incurred for acts of paramilitary groups “to the extent they were in fact treated as part
of the armed forces of the FRY. ” This claim does not conf orm to the high standard
applied by the Court for attributing conduct of de facto organs to a State:
“to equate persons or entities with State organs when they do not have
that status under internal law must be exceptional, for it requires proof of
a particularly great degree of Stat e control over them, a relationship
which the Court’s [ Nicaragua] Judgment quoted above expressly
869
described as ’complete dependence’.”
868Memorial, para. 8.48.
869ICJ,Case concerning the Application otfhe Convention on the Preventionuishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Monteneg)dgment, 26 February 2007, neral List No. 91, para. 393.
3201014.It is therefore clear that attribution in such cases is “exceptional” and the required
standard of attribution is not, as Croatia erroneously suggests, “[being] in fact treated as
part of the armed forces”, but rather, the stri ct requirement of being in a relationship of
“complete dependence” with the State.
1015.Further, the Memorial uses the term “paramilitary groups” in a general and deliberately
confusing fashion, without distinguishing betw een different units or groups that were
involved in the armed conflict in Croatia and that were fighting against the forces of the
Croatian republican government. 870Apart from the SFRY organs, these included armed
forces (TO and MUP units) of the SAO Krajin a and other Serb regi ons in Croatia, the
army of the RSK, as well as different volunteer groups.
1016.As has been discussed in Chapter VI, the local TO and MUP units or parts thereof on the
territory of municipalities in Croatia that had a majority or a substantial minority of the
Serb population started to operate as TO and MUP units of the emerging Serb regions in
Croatia, with the spreading of the conflict in 1991. As the SAO Krajina and other Serb
autonomous regions in Croatia were established at the end of 1990 and during the course
of 1991, and subsequently when the RSK wa s established on 19 December 1991, these
units were created and organized according to the laws of these regions and then of the
RSK, and not under the inte rnal law of either the SF RY or the FRY or Croatia.
Consequently, the armed forces of the SAO Krajina and other Serb regions in Croatia, as
well as the RSK, were notde jureorgans of either the SFRY or the FRY. 871
1017.The TO units of the SAO Krajina and other et hnic Serb regions in Croatia, as well as
the MUP units of the SAO Krajina, fought in dependently or in c ooperation with the
JNA. At times these units were subordinate d to the JNA, which was done on the basis
of a decision of the relevant author ity of the RSK/Serb region in Croatia. 872Moreover,
the cases of such subordination could occu r only during the period of the 1991-1992
conflict in Croatia, when the JNA was there, and in this regard only the responsibility of
the SFRY, and not of the FRY, is at issue. Although the potential responsibility of the
FRY does not even arise for events that occurr ed during the said period, for the sake of
870See Chapter VI.
871See supra Chapter VI, paras. 621–633.
872See supra Chapter VI, para. 634.
321 completeness a number of observations will be made concerning the lack of proof for
establishing the respons ibility of the SFRY fo r these events. In order to attribute the
conduct of the TO and MUP units of the RSK/ Serb regions in Croatia to the SFRY, the
Applicant would need to prove, in each specific case, not only that the TO or MUP unit
was actually fighting together with the JNA, but would also have to specify the nature
of their relationship (coordination, subordina tion etc.). Only then could one possibly
discuss whether those units were perh aps, on these occasions, acting as de facto organs
of the SFRY, or were under its direction or control, and thus whether the responsibility
of the SFRY could have arisen.
1018.However, the Applicant does nothing of the so rt. Its Memorial discusses questions of
attribution only in very gene ral terms without providing more specific proof. This is in
sharp contrast with the standard of proof that is required for proving that certain persons
or groups were de facto organs of a State. As already quoted above, the Court stated that
873
this “requires proof of a particularly great degree of State control over them...”
Moreover, in cases involving charges of ex ceptional gravity, such as genocide, these
charges must be proved by eviden ce that is fully conclusive. 874The Applicant utterly
fails to meet the required standard.
1019.Moreover, as will be discu ssed in the next section, the Applicant fails to provide
particulars of the cases in which it alleges that the SFRY organs exercised direction or
control over the TO or MUP un its of the SAO Krajina and ot her ethnic Serb regions in
Croatia.
1020.Another claim made by the Applicant is that “a number of the paramilitary groups were
formally integrated into the JNA as ‘volunt eers’ pursuant to the Order adopted on [13]
September 1991.” 875However, this order alone si mply does not provide any proof
concerning the responsibility of the SFRY fo r the specific even ts alleged in the
Memorial.
873ICJ, Case concerning the Application of the Conventi on on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 393.
874ICJ, Case concerning the Application of the Conventi on on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 209.
875Memorial, para. 8.48 (footnote omitted).
3221021.As is clear from the Order of 13 September 1991, volunteers were individually
integrated into the JNA. 876There is even an individual application form appended to the
Order. Volunteers were accepted into the JNA by a decision of an appropriate military
officer, and were then assigned to a JNA un it, having equal rights as other military
877
personnel.
1022.In order to attribute certain conduct to the SFRY, the Applicant would have to show that
the acts alleged were committed by individual volunteers, who were in fact accepted
into the JNA. However, in line with the general approach taken in the Memorial, the
Applicant deliberately fails to distinguish between the acts committed by volunteers that
were accepted into the JNA, and the conduc t of persons that acted outside the JNA
structure. Without making this distinction and without determining whether certain acts
were indeed committed by the volunteers who were accepted into the JNA, the
Applicant simply cannot attribute these acts to the SFRY, and even less can it attribute
all acts of the so-called ”paramilitaries” to the SFRY. In any case, it should be recalled
that the FRY is in no way responsible for events that occurred before it came into
existence, which includes conduct attributable to the SFRY.
C. Acts Allegedly Performed under the Direction and Control of State Organs
1023.The Applicant also alleges that the Res pondent is responsible on the basis that
perpetrators of “genocidal acts” acted under its direction and control. In this regard, the
Applicant relies on the rule contained in the present Article 8 of the ILC Draft Articles
on State responsibility. This rule provides that
“[t]he conduct of a person or a group of persons shall be considered an
act of a State under international law if the person or group of persons
was in fact acting on the instructi ons of, or under the direction and
control of, that State in carrying out the conduct.”
876See Memorial, Annexes, Vol. 4, annex no. 73, article 2.
877Ibid., articles 3, 6, 10 & 11.
3231024.As the Court emphasized in the Bosnia case, “[t]his provision must be understood in the
light of the Court’s jurisp rudence on the subject”, 878 in particular its 1986 judgment in
the Nicaragua case, which stated:
“For this conduct to give rise to le gal responsibility of the United States,
it would in principle have to be pr oved that that State had effective
control of the military or paramilitary operations in the course of which
879
the alleged violations were committed.”
1025.In the Bosnia case, the Court further clarified that
“it has to be proved that they acted in accordan ce with that State’s
instructions or under its ‘effective c ontrol’. It must however be shown
that this ‘effective control’ was exerci sed, or that the State’s instructions
were given, in respect of each operation in which the alle ged violations
occurred, not generally in respect of the overall actions taken by the
880
person or groups of persons having committed the violations.”
1026.Therefore, in order to attrib ute a conduct to a state – be it the SFRY or the FRY – the
Applicant would have to show with respec t to each particular operation in which the
alleged violations occurred, either (a) the exercise of the State’s “effective control” over
the person or groups of persons committing th e violation or (b) the existence of the
State’s instructions to them to commit the violation.
1027.According to the Applicant,
“The evidence set forth in this Memorial – including in particular witness
statements of persons directly in volved and corroborating independent
reports – discloses the direct participation or involvement of the JNA side
878
ICJ, Case concerning the Application of the Conventi on on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 399.
879ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 65, para. 115.
880ICJ, Case concerning the Application of the Conventi on on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 400 (emphasis added).
324 by side with Serb and Serbian paramilitary groupswhen the most extreme
violence was inflicted. It is clear th at the JNA military commanders not
only failed to intervene to prevent paramilitary genocidal acts, but actively
cooperated with paramilitary groups and provided logistical and direct
military support. In many instances , there is clear evidence that
paramilitary organisations were involved in joint planni ng with the JNA
881
and VJ. In most instances, operations were jointly carried out.”
1028.Surprisingly, the above statement constitutes almost everything that the Memorial had
to say in support of the contention that the Respondent had directed or controlled the
conduct of “paramilitary groups” in an arme d conflict that involved hundreds if not
thousands of individual opera tions and concomitant “genoc idal acts” alleged by the
Applicant. Moreover, this statement contains a series of propositions, none of which is
supported by evidence.
1029.The Applicant’s first proposition is that the JNA military commanders “failed to
intervene to prevent paramilitary genocidal acts”, which is not only unsupported by any
reference or evidence but also completely irre levant for the discussion of attribution on
the basis of direction and control.
1030.Secondly, according to the Applicant, th e JNA military commanders “actively
cooperated with paramilitary groups and provided logistical and direct military
support”. This is also irrelevant for the pr esent discussion, because, as seen above, the
required standard is the existence of “effec tive control” or instru ctions, and not mere
cooperation or support.
1031.Thirdly, the Applicant alleges that “the re is clear evidence that paramilitary
organisations were involved in joint planning with the JNA and VJ.” However, it fails
to provide such evidence. Also, as a matter of law, joint planning in no way implies
“effective control”. Indeed, it contradict s the idea of the St ate organs giving
“instructions” to persons or groups of pers ons, which would entail its responsibility on
the basis of Article 8 of the ILC Articles on State Responsibility.
881
Memorial, para. 8.51 (footnotes omitted).
3251032.Finally, the Applicant alleges that “[i]n most instances, operations were jointly carried
out” and that there was “the direct participa tion or involvement of the JNA side by side
with Serb and Serbian paramilitary groups when the most extreme violence was
inflicted.” Again, this does not as such enta il a State’s responsibility on the basis of
direction or control for which proof of “effective control” or “instructions” of the State
organs to the “paramilitaries” is required. Th e Applicant fails to present this necessary
proof. Of course, the State remains responsible for the conduct of its organs, but this is
different from the issue of direction and control over other persons or groups of persons.
Finally, virtually all the operations that are sa id to have been “joi ntly carried out” took
882
place in 1991, while the SFRY still existed, and it is thus only the potential
responsibility of the SFRY, and not the FRY, that is called into question.
1033.Considering how little the Applicant has to say about the attribution of acts on the basis
of direction and control, it is not surprising that in this section of its Memorial the
Applicant suddenly turns to th e question of responsibility on the basis of failure to
883
punish breaches of the Genocide Convention. This question is discussed in Chapter X
of this Counter-Memorial.
D. Subsequent Adoption and Ratification
1034.As an alternative, the Applicant also alleges the Respondent’s responsibility on the basis
that it subsequently acknowledged and a dopted individual “genocidal acts”. 884This
proposition must be rejected because it is without basis in law and fact.
1035.First, according to the Applicant, the adoption and ratification of the genocidal acts is
reflected
“in the honours and decorations bestow ed by the Serbian leadership and
the JNA (and then the Yugoslav Army [ sic]) on many of those persons
involved in the genocidal campaign, including those involved in the
885
attacks on the Croat and other populations of Vukovar.”
882See Memorial, para. 8.51, note 127.
883Memorial, para. 8.52.
884Ibid. para. 8.53.
885Ibid.
3261036.The sole reference provided here by the Applicant is to congratulations conveyed to the
JNA forces by the SFRY Minister of Defense, General Kadijevi ć, after they captured
Vukovar. At the outset, it should be recalle d that the congratulations were conveyed by
an organ of the SFRY on 21 November 1991, and cannot in any way be attributed to the
Respondent. Also, the congratulations relate d to the actions of the JNA in Vukovar
which were a fortiori acts of a SFRY organ that di d not need to be adopted or
acknowledged by another SFRY organ in order to be attributed to the SFRY, so Article
11 of the ILC Articles of State Responsibility is inapplicable in this context.
1037.Finally, the congratulations were made with respect to th e capture of Vukovar, which,
regardless of how one may look at it from th e political or military point of view, was a
military action and not a genocidal act. No co ngratulations were made or honors given with
regard to any acts that may have been contr ry to international law,including genocide.
1038.Secondly, the Applicant alleges responsibility of the FRY on the following basis:
“Any doubt as to the attribution of this plan to the FRY is resolved by the
subsequent conduct of the FRY leadersh ip in its establishment, direction
and control of the Serb authorities on the territories concerned and the
attempt to integrate those territories into the ‘administrative, military,
educational, transportation and co mmunication systems of the Federal
Republic of Yugoslavia (Serbia and Montenegro).’” 886
1039.According to the Applicant, this conduct is analogous to the c onduct of the Islamic
Republic of Iran in the second stage of the hostage crisis, considered by the Court in the
case concerning United States Diplomatic and Consular Staff in Tehran. 887
1040. According to the ILC commentary on Article 11,
“In international controversies, States often take positions which amount
to ‘approval’ or ‘endorsement’ of co nduct in some general sense but do
not involve any assumption of responsibility. The language of ‘adoption’,
886Memorial, para. 8.54.
887Ibid., quoting ICJ,United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 198,0p. 35,
para. 74.
327 on the other hand, carries with it the idea that the conduct is
acknowledged by the State as, in effect, its own conduct. Indeed, provided
the State’s intention to accept responsibility for otherwise non-
attributable conduct is clearly indicated, article 11 may cover cases where
a State has accepted responsibility for conduct of which it did not
approve, which it had sought to prevent and which it deeply regretted.
However such acceptance may be phrased in the particular case, the term
‘acknowledges and adopts’ in ar ticle 11 makes it clear that what is
required is something more than a general acknowledgement of a factual
situation, but rather that the Stat e identifies the conduct in question and
888
makes it its own.”
1041.It clearly follows that Article 11 co ncerns particular “conduct” and its
acknowledgement and adoption by a State “as, in effect, its own conduct”. The said rule
does not apply to the State’s “acknowledgement of a factual situa tion”. Therefore, the
fact that the FRY acknowledged the existen ce of the RSK and cooperated with it, does
not amount to “acknowledgment and adoption” in the sense of Article 11, unless the
FRY “acknowledged and adopted” some specifi c conduct of the RSK “as, in effect, its
own conduct”. The Applicant does not provide any evidence for this.
1042.Further, the Applicant does not in fact iden tify the specific conduct that may have been
“acknowledged and adopted” by the FRY, which is a necessary precondition for the
application of Article 11 of the ILC Draft Ar ticles. Perhaps one coul d construe that in
the Applicant’s view this “conduct” consisted of the very existence and operation of the
“Serb authorities” and the RSK on the territories concerned, but this would be irrelevant
for the purpose of the present proceedings which solely concern obligations under the
Genocide Convention.
1043. This also shows that the Applicant’s reference to the United States Diplomatic and
Consular Staff in Tehran in inapposite. In that case, the acts of militants (occupation of
the United States Embassy and de tention of its inmates) were per se illegal under
international law and once they were adopted by the State, this gave rise to State
888
See Draft articles on Responsibility of States for Inte rnationally Wrongful Acts, with commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 53 (emphasis added).
328 responsibility. In the present case, even if one were to accep t the factual allegations of
the Applicant (which are denied), the underl ying acts whose adopti on is alleged, such
as the establishment and maintenance of the Serb authorities on the territory of Croatia,
do not incur any breach of obligations under the Genocide Convention. Finally, such
acts and their alleged “endorsing and s upporting” cannot provide support to the
889
conjecture that the FRY ordered “genoc idal activities” in the first place, for which
the Applicant does not offer even a shred of evidence.
3. Conclusion
1044.On the basis of the arguments set out above, it can be concluded that:
(a) Responsibility in the present case must be determined on the basis
of rules of international customary law;
(b) Article 10, paragraph 2, of the ILC Articles on State Responsibility
does not reflect international customary law; further, this provision
cannot be applied in th e present case considering its terms and the
circumstances of the case;
(c) The SFRY existed as a subject of international law in 1991 and
early 1992;
(d) Consequently, there is no legal or factual basis to attribute to the
Respondent the responsibi lity for events that occurred before 27
April 1992, the date on which the Respondent came into existence;
(e) As far as the events that took place after 27 April 1992 are
concerned, none of them were committed by the FRY organs, nor
can they be attributed to the FRY on any other basis;
(f) As far as the events that took place before 27 April 1992 are
concerned, these concern the re sponsibility of the SFRY, and
cannot therefore be addressed by the Court in the present case;
(g) In any event, it should be noted that, in relation to most events that
took place before 27 April 1992, the Applicant has not proved that
the conduct alleged was actually the conduct of the SFRY organs;
889
Memorial, para. 8.55.
329 (h) The TO units of the SAO Krajina and other regions with an ethnic
Serb population in Croatia, the Army of the RSK, the MUP units of
SAO Krajina/RSK, as well as paramilitary formations, were neither
de jure nor de facto organs of either the SFRY (before 27 April
1992) or the FRY (after 27 April 1992);
(i) Consequently, the conduct of these formations in individual
operations may be attributed to either the SFRY (before 27 April
1992) or the FRY (after 27 April 19 92) only on the basis that they
exercised “effective control” or gave instructions to commit
violations in respect to a par ticular operation, for which, however,
the Applicant does not provide any evidence;
(j) The breaches of the Genocide Co nvention that are alleged by the
Applicant cannot be attributed to the Respondent on the basis that it
subsequently adopted them as its own, because the Applicant’s
claims in this regard relate either to the conduct of the SFRY
organs or to the alleged adoption of acts that are not breaches of the
Genocide Convention.
4. The Respondent has not Violated Its Ob ligations to Prevent and to Punish the
Crime of Genocide
1045.The legal elements of the obligations, under the Genocide Convention, to prevent and to
punish the crime of genocide have been analyzed in Chapter II. 890In the following
paragraphs, the Respondent will sh ow that it has not violated its obligations to prevent
and to punish genocide.
A. Obligation to Prevent
1046.In accordance with the Court’s judgment in the Bosnia case, the question of the
Respondent’s violation of the obligation to pr event genocide can arise only if the Court
finds that: (a) genocide has been committed against Croats, (b) it was not committed by
organs or persons or groups whose conduct is attributable to th e Respondent, (c) the
890
See Chapter II, paras. 115–130.
330 Respondent is not responsible for complicity in genocide, (d) the Respondent was aware
of the possibility that genocide would be co mmitted but failed to take reasonable action
to prevent it, and (e) the Respondent was in a position to influence the actions of the
principal perpetrator.
1047.Having in mind that the existence of the viol ation of the obligation to prevent genocide
primarily depends on the fulfillment of the first of the above-listed conditions, the actual
commission of genocide, and having in mi nd that in Chapter VIII the Respondent
convincingly demonstrated that neither ge nocide nor any other act prohibited by the
Genocide Convention was committed against Croats, the only possible conclusion is
that the Respondent has, accordingly, not violated its obligation to prevent genocide,
since there was nothing to prevent in the first place.
1048.Nevertheless, the Respondent will, ex abundanti cautela , address some specific
allegations on the alleged failure to prev ent genocide, contained in paras. 8.57–8.63 of
the Memorial. The Applicant, thus, claims that:
“The Serbian leadership, the Republic s of Serbia and Montenegro, and
the FRY are responsible under Article I of the Genocide Convention for
failing to control the JNA (and thos e with whom it was collaborating)
and for failing to prevent the direct participation of the JNA – and the
paramilitaries over which the Serbian leadership had “effective control”
891
– in the planning and execution of the genocide which occurred”.
1049.Firstly, it should be noted that the App licant here actually confirmed what is
explained by the Respondent in this Chapter, namely that neither the Serbian
leadership, nor the Republics of Serbia and Montenegro, nor the FRY had control
over the JNA. However, none of the three entities referred to by the Applicant
had even the obligation to control the JNA, since it was the SFRY which was in
command of the JNA, and the FRY did not even exist at the same time when the
JNA existed.
891
Memorial, para. 8.62.
3311050.Finally, the Applicant’s contention that th e Respondent violated its obligation to
prevent genocide by failing to prevent the actions of the paramilitaries “over
which the Serbian leadership had effective control” is logically untenable, since
the alleged existence of effective c ontrol would involve the Respondent’s
responsibility for the commission of genocid e itself, and not for the failure to
prevent it. In any case, however, genocide was not committed and, for that
reason, the Respondent cannot be held responsible for the failure to prevent it.
A. Obligation to Punish
1051.The Applicant also alleges that the Re spondent has violated its obligation to
punish genocide. The Applicant’s allega tions are unfounded for the reasons that
will be addressed in the following paragraphs.
1052.In the first place, for a State to be held responsible for failing to punish genocide,
that crime or any of the acts enumer ated in Article III of the Genocide
Convention have to be committed. In Chap ter VIII, the Respondent showed that
neither genocide nor any other act prohibited by the Convention had been
committed and for that reason the question of the Respondent’s responsibility for
the failure to punish does not even arise.
1053.Nevertheless, even if the Court would find that some of the acts prohibited by the
Genocide Convention have been committed ( quod non), the Respondent would
still not be responsible for failure to punish them. Namely, according to the
Court’s findings, a State can be held responsible for the violation of the obligation
to punish genocide or any of the acts prohibited by the Convention: a) if the crime
was committed in its own territory, or b) when a person is charged with genocide,
or any other act enumerated in Article III of the Convention, by such an
international penal tribunal as may have jurisdiction with respect to those states
892
which have accepted its jurisdiction.
892
See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List.
No. 91, paras. 442-443.
3321054.In the present case, the alleged genocide was not committed in the territory of the
Respondent and for that reason the Respondent was not obliged to try or to punish
anyone for the commission of that alleged ge nocide or any other act prohibited by the
Convention.
1055.The Respondent is, on the other hand, obliged to cooperate with the ICTY, which,
in this case, can be qualified as “an in ternational penal tribunal as may have
jurisdiction with respect to those states which have accepte d its jurisdiction”.
However, as already pointe d out on several oc casions in this Counter-Memorial,
the ICTY has not charged anyone for ge nocide committed against the Croats in
Croatia and, accordingly, any possible failure of the Respondent to arrest any of
the persons accused for crimes in Cr oatia by the ICTY could not even
theoretically qualify as a violation of the obligation to punish.
1056.Nevertheless, even if no one was charge d by the ICTY with genocide against the
Croats, the Respondent did cooperate with that Tribunal in the course of the past years
and many persons accused by the Tribunal for cr imes in Croatia have been transferred
to the ICTY. That include s the former President of Serbia, Slobodan Miloševi ć, the
person charged for all the crimes allegedly committed against the Croats during the war
in that country.
1057.The only conclusion, thus, is that the Respondent has not violated its obligation to
punish genocide, just as it has not violated any other obligation imposed on it by
the Genocide Convention.
333334 CHAPTER X
SUBMISSIONS MADE BY THE APPLICANT
1. Introduction
1058.This chapter will deal with the Applicant’s formal submissions made in the Memorial, 893
as well as with its discussion of obligations of cessation and reparation. 894During the
preliminary objections proceedings, the Respondent submitted as a preliminary objection
the argument that some of the submissions made in the Memorial concerning the putting
on trial of certain persons within the jurisd iction of Serbia, providing information about
missing Croatian citizens, and the return ofcultural property, were beyond the jurisdiction
of the Court and inadmissible. 895The Court rejected th is preliminary objection. 896The
Respondent will therefore in the present chapter address these three claims, as well as the
Applicant’s general approach towards the issue of reparation and its various forms. The
discussion will deal withthe following topics:
a) first, the Applicant’s general approach towards the issue of reparation;
b) second, the alleged continuing violat ions of the Genocide Convention
that concern the failure to punish the perpetrators of genocide and
provide information on the whereabouts of missing persons;
c) third, the Applicant’s submission c oncerning the return of cultural
property.
1059.From the outset, however, it should be reiterat ed that the discussion of reparation in the
current case is wholly hypothetical since none of the necessary preconditions for the
responsibility of the Respondent are presen t: there was neither genocide committed
against Croats; nor are acts alleged by the Applicant attributable to Serbia.
893Memorial, pp. 413-414.
894
895Ibid., para. 8.71 et seq.
ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118 ,
896a. 131.; Preliminary Objections, para. 5.1 et seq.
ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118 ,
para. 146(5).
3352. The Applicant’s General Approach towards the Issue of Reparation
1060.In the Memorial, Croatia has chosen not to provide a full argument about the question
of reparation in the present case but “merel y outlines the various heads under which the
principles of reparation fall to be determined.” 897 For this reason, Serbia will not at this
stage address this topic in detail, apart from certain specific submissions of the
Applicant that have already been discussed at the preliminary objections stage of the
proceedings. However, certain general comments are warranted.
1061.The general principle concerning reparation is enunciated in Article 31 of the ILC
Articles on State Responsibility which states as follows:
“1. The responsible State is under an obligation to make full reparation
for the injury caused by the international wrongful act.
2. Injury includes any damage, whether material or moral, caused by the
internationally wrongful act of a State.”
1062.The ILC Commentary to this provision ma kes clear that “... the subject matter of
reparation is, globally, the injury resulting from and ascribable to the wrongful act,
rather than any and all consequences flowing from an internationally wrongful act.” 898
1063.Clearly, the injury which must be remedied by reparation is the one “resulting from and
ascribable to the wrongful act” and not just any of its consequen ces. Also, the injury
must be caused by the wrongful act, which in the circumst ances of the present case,
means that it must be caused by a violation of the Genocide Convention.
1064.However, the Applicant’s approach is differe nt. First, it claims reparation not only for
the injuries caused by alleged violations of the Convention, but for “those acts which
are connected to the Serbian genocidal campaign”. 899 This clearly includes not only acts
that could constitute the actus reus elements of genocide but also acts such as
900
imprisonment and the destruction of cultural property, which do not fall under the
897
Memorial, para. 8.76.
898Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,Yearbook of
the International Law Commission,2001, Vol. II, Part Two, p. 92, para. 9 of the commentary to Article 31.
899Memorial, para. 8.79 (emphasis added).
900Ibid.
336 scope of the Genocide Convention. The obvious problem with the Applicant’s approach
is that it tries to extend the reach of the present clai ms to include alleged wrongful acts
that cannot constitute violat ions of the Genocide Conventio n, and to claim reparation
for these acts.
1065. Secondly, the Applicant claimsrestitution in kind which includes“the return of all property
and goods stolen in connection with th e genocidal acts for which the FRY is
901
responsible.” Here, as well, the Applicant is trying toextend its claim tocover acts which
cannot constitute violations of the Genocide C novention (stealing of prperty and goods).
1066.Further, where damage is not repaired by restitution in kind, the Applicant claims
compensation from Serbia for violations ofe thGenocide Convention. While this may, at first
sight, look like a properly tailored claim under the Genocide Convention, it immediately
becomes clear that it is not, because in view of the Applicant, such damage includes “damage
to the territory of Croatia and to its property, including cultural property”, “damage to the
cultural and natural heritage of Croatia”, “dam age to the economy of Croatia”, “damage and
losses to the citizens of Croati,aincluding damage to property”a,nd “all damage caused to the
902
physical and moral integrity and we -leing of the citiens of Croatia”.
1067.It is obvious that what the Applicant is claiming is not reparation for damages caused by
violations of the Genocide Convention, but ra ther reparations for all possible damages
that may have been caused by the war in Croatia. The Applicant’s approach in this
regard is completely unjustified and contrary to the established rules of international
law. As already discussed, reparation must be given only for the injury “resulting from
and ascribable to the wrongful act” and not for any and all possible and imagined
consequences of the wrongful act, as the Applicant would in reality like to achieve.
1068.In fact, the Applicant’s claim fo r damages follows the same lineas the Memorial in general
– what is presented is a case concerning Serbia’s purported responsibility for the armed
conflict in Croatia and whatis claimed are war damages fromSerbia. However, neither are
Croatia’s argumentsand claims justified, nor do they fall to be determined by the Court
whose jurisdiction exclusively co ncerns possible violations ofthe Genocide Convention.
901
902Ibid., para. 8.80.
Memorial, paras. 8.81 and 8.82.
3373. Alleged Continuing Violations of the Genocide Convention
1069.The Applicant further claims that the Responde nt has violated and continues to violate
its obligations under the Genocide Convention by failing a) to punish perpetrators of
alleged genocidal acts, and b) to provide whereabouts of Cr oatian citizens that went
903
missing in the alleged genocide. These two claims will be discussed in turn.
A. Obligation to Punish the Perpetrators of the Alleged Genocide
1070.The Applicant claims that the Respondent is res onsible for its failure to submit to trial those
suspected of committing genocide in Croatia. Ashas already been discussed in Chapter IX,
the Genocide Convention requires the contracn tig parties to try andpunish persons charged
with genocide and other acts enumeratedin Article III of the Convention committedon its
own territory. It also provides that such persons may be tried by “such international penal
tribunal as may have jurisdiction with resp ect to those states which have accepted its
jurisdiction”. The latter obligation implies thatthe States parties which are subject to the
jurisdiction of such internation latribunal have the obligation tcooperate with it, which in the
circumstances of the present case meanse thobligation to cooperate with the ICTY. 904
1071.Even if a genocide was committed in Croatia against Croats ( quod non), as alleged by
the Applicant, it is obvious that such a genoc ide did not take part on the territory of the
Respondent. Consequently, th e Respondent would not have the obligation under the
Genocide Convention to try and punish the perpet rators of this alleged genocide. It is
for these reasons that the central point made by the Applicant – that its case “is
concerned with those persons who have not be en surrendered for trial in Croatia or to
905
the ICTY” – is untenable and irrelevant.
1072.As far as the obligation to c ooperate with the ICTY is con cerned, it is also uncontested
that the ICTY has not indicted any persons for genocide committed against Croats on
the territory of Croatia, and the issue of th e Respondent’s obligation to cooperate with
the ICTY, as required by the Genocide Convention, does not even arise.
903Memorial, para. 8.78 and pp. 413-414, at paras. 1(d) and 2(a) & (b).
904See supra Chapter IX, paras.1055; and ICJ, Case concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (B osnia and Herzegovina v. Serbia and Montenegro) ,
Judgment, 26 February 2007, General List No. 91, paras. 442–447.
905Written Statement, paras. 4.3 & 4.11.
3381073.In any case, it should be notedthat the Respondent fully cooperates with the ICTY and, in
particular, it has transferred, ocrooperated in the transfer, o1 f2 out of the 13 persons indicted
906
by the ICTY for war crimes and crimes against humanity in Croatia. The one remaining
indictee, Mr. Goran Hadzić, is in hiding and is being actively pursued by the Serbian law
907
enforcement agencies. As soon as he is apprehende d by the Respondent, he will be
transferred to the ICTY. Furthermore, it is impor nttato note that Serbia’s judicial organs have
initiated a number of proceedinga sgainst individuals charged w ti crimes other than genocide
in relation to the armed conflitcin Croatia, some of whom ha ve already been convicted. The
same is the case with Croatia, which has started to try and punish persons responsible for
crimes against Serbs, such as in the cases ofOsijek and the Medak Pocket. Further, there is
ongoing cooperation between Serbia and Croati a in the prosecution of violations of
908
international humanitarian law committed during the armed conflict in Croatia.
1074.For all of the foregoing reasons, it is submitted that there is no basis in law or in fact for
the Applicant’s claims concerning the alle ged continuing violation of the Genocide
Convention by the Respondent for its failure to try and to punish perpetrators of
909
genocide. Consequently, the Court should reject the Applicant’s submission 2(a).
B. Obligation to Provide Information on Missing Persons
910
1075.The Memorial contends that as the resu lt of “Serbia’s genocidal campaign” 1,419
Croatian citizens remain missing and that there is an obligation for Serbia “to take all
steps at its disposal to provide an i mmediate and full account to Croatia of the
911
whereabouts of each and every one of these missing persons”.
906See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Oral Pleadings, CR 2008/9, p. 23, paras. 52–53 (Zimmermann).
907
According to the report of the ICTY to the Security Council and the General Assembly:
“The most critical aspect of Serbia’s cooperation remains the apprehension of the fugitives, Ratko Mladić
and Goran Hadžić. During the reporting period, the Office of the Prosecutor closely followed the work of
the Serbian authorities to locate these fugitives and was regularly briefed on their activities. During the
reporting period, Serbia’s National Security Council and Action Team in charge of tracking the fugitives
led complex and widespread search operations ainst the two accused and their support networks.”
Sixteenth annual report of the International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991,
31 July 2009, UN Doc. A/64/205-S/2009/394, para. 62.
908For data, see http://www.tuzilastvorz.org.rs/html_trz/PREDMETI_ENG.htm
909Memorial, pp. 413–414, paras. 1 (d) & 2 (a).
910
Memorial, para. 8.78. In the pre liminary objections pro ceedings, Croatia reduced this number to 1,185
missing persons, see Case Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croatia v. Serbia), Oral Pleadings, CR 2008/10, p. 15, para. 35 (Šimonovi ć). The current
situation is that Croatia requests from Serbia information about 1,042 missing persons (Annex 35).
911Memorial, para. 8.78; see, also, ibid., p. 414, para. 2(b).
3391076.The Respondent submits that the provision of information about missing persons does
not fall within the scope of the obligations set forth in the Genocide Convention. This
also means that a possible failure to provide information of the kind referred to above
cannot, as a matter of principle, amount to a continuing violation of the Genocide
Convention, as the Applican t claims in the Memorial. 912 Indeed, in the formal
submissions it makes in the Memorial, the Applicant does not re quest the Court to
declare that the failure to provide the info rmation in question amounts to a violation of
913
the Genocide Convention, but rather that this be ordered as a form of reparation.
1077.The Court has made it clear that the Ge nocide Convention does not specifically
914
prescribe a duty to provide information of this kind. In its written statement in
response to Serbia’s preliminary objections , the Applicant accepte d that position and
claimed that the provision of informati on about the whereabouts of missing persons
915
could be a remedy stemming from violations of the Genocide Convention.
1078.Although the Respondent accepts that the provisio onf information about persons missing as a
result of violations of theGenocide Convention could, as a ma tter of principle, be a remedy
for violations of the Genocide Convention, this is not so in the circumstances of the present
case. First, there was no genocide against the Croas s the issue of reparations (including this
particular claim of the Applicatn ) does not arise atall in the present case. Second, Serbia has
in fact provided, and continues to provide, Cr oatia with information about those persons
missing in connection with the armed conflict inCroatia. Third, the parties have agreed to
pursue this matter through avenues of bila teral cooperation and not through judicial
proceedings. Finally, and in any event, theprovision of information about missing persons
would not be an appropriate remedy itn he circumstances of the present case.
1079.The Court has already been provided with de tails about the cooperation between Serbia
and Croatia on the issue of missing persons asa result of the conflict in Croatia, and they
916
will not be repeated here. It should be added, however, that on 30 July 2009 the entities
912
913See Memorial, para. 8.78.
914See Memorial, pp. 413–414.
ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118 ,
para. 138. See, also, Preliminary Objections, para. 5.7.
915Written Statement, para. 4.15.
916Preliminary Objections, paras. 5.7–5.10 and accompanying annexes; Case Concerning Application of the
Convention on the Prevention and Pu nishment of the Crime of Genocide (Croatia v. Serbia), Oral Pleadings, ,
CR 2008/9, pp. 25–27, paras. 64–71 (Zimmermann).
340 of both sides dealing with the issue of missing persons held yet another regular meeting
with the participation of relevant internati onal organizations. On that occasion, the two
sides expressed their satisfaction with the fulfillment of the obligations undertaken at the
previous meeting held on 13–14 March 2007. 917 While the record of the 30 July 2009
meeting shows that there are certain questions that remain open, it should be noted that
such questions were raised by both sides: Croatia and Serbia. Currently, Croatia requests
from Serbia information about1,042 missing persons, whilstSerbia requests from Croatia
information about 1,226 persons. 918 In any event, progress in securing information is
apparent. For example, the number of missing persons soughtby Croatia was reduced by
919
one third in recent years, from1,419 in 2001 to1,042 in 2009.
1080.In its final submissions in the Memorial, the Applicant requests the Court to adjudge
and declare that the Respondent is under an obligation “to provide forthwith to the
Applicant all information within its possess ion or control” about the missing persons
920
and “generally to cooperate” with Croatia in that regard. Clearly, the latter request is
moot as it is obvious that general cooperation between Serb ia and Croatia exists with
respect to the issue of missing persons. The former request is also moot, because Serbia
has already undertaken bona fide efforts to provide Croatia with all the information it
has about missing persons. While it is uncontested that certain requests made by Croatia
have not yet been fulfilled, it is also clear that the provision of such information in some
cases requires extensive time and resources. In any case, at a recent meeting concerning
missing persons, Croatia has expressed its satisfaction as to the fulfillment of
921
obligations previously undertaken by Serbia. The Applicant’s submission, therefore,
would amount to asking the C ourt to order Serbia to fulf ill an obligation that the
Applicant itself considers as being satisfactory fulfilled, and for that reason it is moot.
1081.Further, as Serbia has already demonstrated during the preliminary objections phase of
this case, agreements between the parties demonstrate that their intention was to resolve
the problem of missing persons and the provision of information about their whereabouts
through direct bilateral cooperation and throughthe work of their respective commissions
917
See Annex 35.
918Ibid. This number includes Serbia’s request for information about 823 missing ethnic Serbs from Croatia.
919Compare Memorial, para. 8.78 and Annex 35 to the present Counter-Memorial.
920Memorial, p. 414, “Submissions”, para. 2(b).
921Annex 35.
341 922
on missing persons, and not before th e International Court of Justice. Their 1996
agreement on normalization of relations already contained an unconditional obligation of
923
both parties to provide all available information about missing persons. This obligation
924
was reaffirmed in the subsequent Protocol concluded on 17 April 1996. These
agreements are unlimited in duration, unconditional and were concluded before Croatia
submitted its Application inthe present case in 1999.
1082. The Applicant contends that these agreements do not render moot the relevant aspect of
the proceedings before the C ourt and cites in support the Fisheries Jurisdiction case
925
between Iceland and the United Kingdom. However, as Serbia demonstrated in the
preliminary objections proceedings, the inte rim agreement between the parties in the
Fisheries Jurisdiction case cannot be compared with the agreements entered into by the
parties in the present case. 926In the former case, the agreement was concluded while the
case was already sub judice, it was of a provisional nature and contained an express
saving clause, whereas in the present case none of these factors are present. Rather, it is
clear that the parties have decided to resolve the issue through bilateral cooperation.
1083.The Applicant states that the 1996 protocol between the parties is limited to providing
“available information” and does not commit Serbia to ascertain the whereabouts of the
missing persons pursuant to obligations under the Genocide Convention. In response, it
should first be recalled thatthere are no such obligations under the Genocide Convention.
Secondly, the provision of “available information” requ ired under exis ting agreements
between the parties is almost identical to theprovision of “all informai ton within [Serbia’s]
possession or contro l” requested by Croatia inits formal submissions. In other words, the
object of Serbia’s and Croatia ’s obligations relating to missing pe rsons under existing
agreements is identical to the objeco t f Croatia’s clai in question.
922
See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Oral Pleadings, CR 2008/9, pp. 27–28, paras. 73–82 (Zimmermann).
923See Annex 10 to Preliminary Objections, Agreement on Normalization of Relations between the FRY and the
Republic of Croatia, Article 6.
924See Annex 53 to Preliminary Objections, Protocol on Cooperation between the Commission of the
Government of the Federal Republic of Yugoslavia for Humanitarian Issues and Missing Persons and the
Commission of the Government of the Republic of Croatia for Imprisoned and Missing Persons of 17 April
9256, Article 2, paragraph 1.
926Written Statement, para. 4.17.
See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Oral Pleadings,, CR 2008/9, pp. 27–28, paras. 75–79. (Zimmermann).
927See Memorial, p. 414, “Submissions”, para. 2(b).
3421084. This means that the Applicant’s claim in question would be inappropriate as a modality
of satisfaction in the present case, as its object would be the same as the object of
existing obligations of the Respondent, whic h, in addition, the A pplicant’s competent
body considers as being satisfactory fulfilled.
1085.Finally, it should be noted that both sides request information about approximately the
same number of missing persons (Croatia: 1,042; Serbia: 1,226). In such circumstances,
the Respondent submits that singling out only those missing persons whose
whereabouts are sought by Croatia would be unfair, in partic ular in a situation where
there is steady progress being made in mutual cooperation between the parties. For this
reason, it is submitted that, in any event, th e remedy sought by Croatia in this regard
would not be an appropriate modality of satis faction in the circumstances of the present
case, as required by Article 37, para graph 2, of the ILC Articles on State
Responsibility. 928
1086.In conclusion, the Applican t respectfully submits that the Court shoul d reject the
submission 2(b) made by the Applicant.
4. The Submission Concerning the Return of Cultural Property
1087. The Applicant’s submission under 2(c) asks th e Court to adjudge and declare that, as a
consequence of the Respondent’s alleged re sponsibility for breaches of the Genocide
Convention, the Respondent is under an ob ligation to return “any items of cultural
property within its jurisdiction or control which were seized in the course of the
929
genocidal acts for which it is responsible.” While this submission is formulated as a
form of remedy in the present case, the A pplicant has elsewhere argued that genocide
may be committed through the destruction of a group’s cultural identity and that the
Respondent has the obligati on, under the Genocide Convent ion, to return all missing
artifacts.930This contention was plainly reject ed by the Court in its judgment on
jurisdiction in the present case, where it reaffirmed the position taken in the Bosnia case
928Draft Articles on Responsibility of States for Intationally Wrongful Acts, w ith commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 106, para. 5 of the commentary to
Article 37.
929Memorial, p. 414, para. 2(c).
930See Written Statement, paras. 4.26 & 4.30.
343 that even “a ‘deliberate destru ction of the historical, cultur al and religious heritage of
the... group [protected by the Convention]’ … ‘... does not fall within the categories of
931
acts of genocide set out in Article II of the Convention.’” In conclusion, the return of
cultural property is not an obligation under the Genocide Convention and, as such, does
not fall within the scope of the present case.
1088. A wholly different issue is the return of items of cultural property as a remedy in cases
of breach of the Genocide Convention. However, this issue could arise only if the Court
were to found in the present case that genocide had been committed against Croats, and
was attributable to the Respondent (quod non).
1089. As a remedy, the return of items of cultura l property would be a modality of restitution
regulated by Article 35 of the ILC Articles on State Responsibility. As is well known,
restitution is a form of reparation for an injury caused by an internationally wrongful
act, which entails the re-establishment of the situation which existed before the
wrongful act was committed. 932 However, as will be demonstrated below, restitution in
the case of genocide would not include the return of cultural property.
1090.As already mentioned, according to the ge neral principle enunciated by Article 31 of
the ILC Articles on State Responsibility, the responsible State’s obligation to make full
reparation relates to the injury caused by it s “internationally wrongf ul act”. In other
words, the injury is only such injury that was caused by the illegal act, or in the words
933
of the ILC, “the injury resulting from and ascribable to the wrongful act”. The issue
of possible restitution in the case of violations of the Genocide Convention must be
approached with this in mind.
1091.At the present stage, where the Applicant has merely provided an outline of its
argument in this regard, 934 it suffices to note that the inju ry caused by violations of the
931
ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118 ,
932a. 141.
Responsibility of States for Internationally Wrongful Acts , Articles 34 & 35, Yearbook of the International
Law Commission, 2001, Vol. II, Part Two.
933Draft Articles on Responsibility of States for Interationally Wrongful Acts, w ith commentaries (2001),
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 92, para. 9 of the commentary to
Article 31.
934See Memorial, para. 8.76.
344 Genocide Convention is the one “resulting fr om and ascribable to” the wrongful acts
under the Convention, in particular those acts ou tlined in its Articles II and III. In this
regard, it should be recalled th at the destruction or removal of cultural property are not
acts which are prohibited by the Genocide Convention. Th e injuries resulting or
ascribable to acts that are wrongful under the Convention (e.g. killing or causing serious
bodily or mental harm to members of the group) do not relate to cultural property. Since
the restitution as a form of reparation is by necessity closely related to the injury, it
appears that the restitution in the case of such injuries c ould not include the return of
cultural property.
1092. Finally, the facts show that there is not even a dispute between the parties to the effect
that cultural property relocated in connection with the armed conflict in Croatia must be
returned, regardless of the different legal qualifications given to the underlying conflict
by the parties. Both parties have concluded an agreement on cooperation in the field of
culture and education, which provides that cultural property of one party shall be
returned to the other party in accordance with the relevant international agreements. The
parties have also established an intergove rnmental commission for the restitution of
935
cultural property. Both before and after this agreement was concluded, cultural
property originating from the territory of Croatia has to a large extent been returned to
the Applicant. 936This means that apart from not falling within the scope of the present
case, which is limited to the interpretation and application of the Genocide Convention,
the above Applicant’s request is also moot.
1093. Further, even if one were to assume arguendo that the return of cultural property could
constitute a form of remedy for alleged violations of the Genocide Convention ( quod
non), it should be noted that a number of the cultural items s ought by Croatia do not
originate from the protected group in the presen t case, i.e. ethnic Croats, as they belong
to the Serbian Orthodox Church and form part of the Serbian cultural identity. These
cultural objects were taken from a number of Serbian orthodox churches in Croatia and
brought to Serbia, as these Orthodox church es were destroyed, damaged or abandoned.
935See Agreement on Co-operation in th e Field of Culture and Education, Narodne novine, Me đunarodni
ugovori [Official Gazette, International Treaties], no. 15/2002Službeni list SRJ – Me đunarodni ugovori
[Official Gazette of the FRY – International Treaties], no. 12/2002, Articles 10 & 16, para. 2.
936For more details, see PO Serbia, paras. 5.12 et seq. and Case Concerning Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Croatia v. Se),ral Pleadings, CR 2008/9, pp. 29–30,
paras. 84–95 (Zimmermann).
345 The return of these items of property cannot even prima facie constitute a remedy in the
case of the alleged genocide against Croats . Notwithstanding this legal clarification,
such items of cultural property are still in the process of being returned to Croatia on the
basis of the aforementioned bilateral agreement.
5. Conclusion
1094. Serbia submits that there was no genocide against Croats and that, in any case, there are
no grounds to establish the responsibility of the Respondent under the Genocide
Convention. Consequently, the submissions made by the Applicant in the present
proceedings are unfounded.
1095. Furthermore, it has been demonstrated that
a) Croatia’s claims for reparation are not in accordance with established
rules of international law, since they also concern injuries allegedly
caused by acts other than those prohibited under the Genocide
Convention, which acts are not th e subject-matter of the present
case; or that it seeks reparation for injuries not caused by acts
prohibited under the Genocide Convention;
b) Croatia’s claim relating to Serb ia’s alleged failure to punish
perpetrators of the alleged genocide in Croatia is unfounded, as this
obligation under the Genocide Convention only requires Serbia to
exercise territorial jurisdiction, an d to cooperate with a relevant
international tribunal;
c) Croatia’s claim relating to the provision of information about missing
persons does not constitute an appropriate remedy in the
circumstances of the present case;
d) Croatia’s claim relating to the return of cultural property cannot be a
remedy in the circumstances of the present case.
346PART III
347348 CHAPTER XI
JURISDICTION TO AND ADMISSIBILITY OF
SERBIA’S COUNTER-CLAIM
1. Introduction
1096.In its Preliminary Objection dated Se ptember 2002, the Respondent had “expressly
reserve[d] its right to bring counter-claim s against the Applicant, regarding acts of
genocide committed by the Applicant on the terri tory of the former Socialist Federal
Republic of Yugoslavia (hereinafter “SFRY”)”. 937
1097.In light of the Court’s finding that it has juriction to deal with the application brought by
Croatia against the FRY (now Serbia) under Article IX of the Genocide Convention, the
Respondent, exercising its rights under Article 80 of th e Rules of Court, now brings
counter-claims againstCroatia for acts of genocide for which Croatia isresponsible.
1098.The relevant acts, forming the subject-matter of Serbia’s counter-claims, were
committed in 1995 during the operation Storm. During that military operation and
thereafter, Croatian armed forces and police units deliberately drove around 200,000
persons of Serb ethnicity out of their homes and expelled them from the area. Their
houses and property were looted and bur ned, and around 2000 members of the ethnic
Serb population of Krajina were killed by the Croatian Governmental forces, with intent
to destroy a substantial and significant part of the Serb national group in Croatia.38
2. Jurisdiction of the Court (Article 80, paragraph 1, of the Rules of Court)
1099.Jurisdiction over the counter-claimsubmitted by Serbia is based on Art. IX of the Genocide
Convention. As the Court is wl el aware, Art. IX of the Gnocide Convention provides:
“Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention, including those
937Preliminary Objections, para. 1.7.
938For details see infra Chapter XIII.
349 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 the dispute.”
939
1100.In its decision on jurisdiction in the case at hand , the Court rejected the view of Serbia that
it lacks jurisdiction withregard to Art. IX of the Genocide Convention as between the parties.
Rather, it found that a jurisdictional link hadbeen established between Croatia on the one
hand and the FRY (now: Serbia) on theh oetr at least from 27 April 1992 onwards 940, and that
the Court was thus, as a matter of principle, entitled to exercise its jurisdiction as to the
alleged violations of the Genocide Conventio for which Serbia is allegedly responsible.
1101.It is on the basis of this jurisdictional finding by the Court that Serbia submits that
Croatia has violated the Genocide Conve ntion, in connection with operation Storm by
committing acts of genocide within the meaning of Articles II and III of the Convention
by acts of its organs and by not punishing individuals bear ing responsibility for these
genocidal acts committed on the territory of Croatia.
1102.All relevant acts formin g part of operation Storm were committed well after 27 April
1992, i.e. the date at which the Respondent came into existence as a State under
international law, which constitutes the earl iest point in time at which the Genocide
Convention could have entered into force between the parties.
1103.Accordingly, Serbia’s counter-claim clearly co mes within the jurisdiction of the Court,
as required by Article. 80, para. 1, of the Rules of Court.
3. The Counter-Claim is Directly Connected with the Subject-Matter of Croatia’s
Claim, Both in Law and in Fact
1104.The legal considerations and the facts upon wh ich Serbia’s counter-claim is based are
intimately connected with the original claim put forward by Croatia, both in law and in
fact.
939Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Yugoslavia), (Preliminary Objections), Judgment of 18 November 2008.
940Ibid., para. 146.
350A. Both Parties Pursue the Same Legal Aims
1105. With regard to both Croatia’s application, as well as Serbia’s counter-claim hereinafter
presented, Article IX of the Genocide Convent ion is the only provi sion on the basis of
which the Court may exercise its jurisdicti on. Accordingly, the extent and scope of the
Court’s jurisdiction is identical with respect to both the claim and the counter-claim.
1106. Moreover, both the original claim put forw ard by Croatia, as well as Serbia’s counter-
claim, raise virtually identical legal issues related to the interpretation of the Genocide
Convention, including the interpretation of the notion of genocide itself, as well as
related issues of State responsibility arising under the Convention and general
international law.
1107.Accordingly, each party seeks to establ ish the other’s responsibility based on a
violation of the very same norms of intern ational law and thus pursues the same legal
aims, as required by Article 80, para. 1, of the Rules of Court.
B. Both Claims Form Part of the Same Factual Complex
1108. Croatia’s case and Serbia’s counter-claim ar e also closely interconnected as far as the
respective factual circumstances are concerne d. The disputed facts of Croatia’s claim
and Serbia’s counter-claim relate to one single conflict, i.e. the armed conflict that took
place on the territory of Croatia. These f acts have a common terr itorial and temporal
setting, they are based on th e same historical background, a nd they took place within
the framework of the same overall political process.
1109. More specifically, they both relate to the same geographical areacommonly referred to as
the Krajina region of Croatia.Moreover, the acts Croatia alleges, as wellas those forming
the background of Serbia’s counter-claim, also relate to the same armed conflictinvolving
the same armed entities, name ly the Croatian armed forces on the onehand, and the armed
forces belonging to theRepublika Srpska Krajina on the other. This conflict had begun in
mid-1991 and culminated in operation Stormundertaken by the Croatian armed forces in
August 1995. Moreover, this arme d conflict also formed partof one single political process
that arose from the dissolution of the former Yugoslavia.
3511110.Accordingly, both claims relate to facts of the very same nature, namely acts of
genocide, and concern a conflict continuously in existence in the area in various forms
from 1991 to 1995 when operation Storm took place.
1111. As a matter of fact, Croatia itself has recognized this close interrelationship. In both its
original Application, as well as in its Memorial, Croatia itself, treated operation Storm
as an integral part of the overall militar y conflict that took place in Croatia from 1991
onwards. Indeed, it even went so far as to consider the events surrounding operation
Storm as constituting acts of genocide comm itted by and attributable to the FRY/
941
Republic of Serbia.
1112. Moreover, and again from Croatia’s own stan dpoint, even the conf licts in Croatia on
the one hand, and the one in Bosnia and Herzegovina on the other, were similar in
nature and character 942and formed part of a single theatre of war. 943Various phases of
the very same conflict involving the same armed groups taking place on the very same
territory of the same State must then even more clearly be considered to form part of the
same factual complex.
1113. Finally, the acts described in Croatia’s memo rial, portrayed by Croatia as constituting
acts of genocide allegedly committed by the Respondent, are also relevant for
identifying the motives and intentions that led Croatia to undertake operation Storm. As
a matter of fact, Croatia itself has acknowledge d that the ethnic Serb population of the
Republika Srpska Krajina had left their homes for “fear of reprisals” 944which again
confirms the close factual interrelationship between the alleged ge nocidal acts: Croatia
claims Serbia is responsible for on the one hand, and the crimes committed by Croatia
during operation Storm on the other.
C. Conclusion
1114. In light of the foregoing, Serbia’s counter -claim satisfies the conditions set forth in
Article 80, paragraph 1, of the Rules of Court.
941See Application instituting proceedings, paras. 2 & 33.
942See CR 2007/10, p. 19 et seq., para. 8 et seq. (Metelko-Zgombić).
943CR 2007/10, p. 10 et seq., para. 11 et seq. (Šimonović).
944Memorial, para. 1.06.
352 CHAPTER XII
FACTUAL BACKGROUND:
CROATIA AND THE SERBS IN THE RSK 1992-1995
1. Introduction
1115.This chapter will cover the period between 1992 and 1995, from the deployment of
UNPROFOR in the spring and summer of 1992 to the operationStormin August 1995. Its
purpose is to provide factual background to the counterclaims submitted against Croatia for its
conduct in the operationStorm. In particular, the present chapter will discuss the attitude and
actions of the Croatian Government towards the Serbs in the RSK, which comprised UNPAs
Krajina, Eastern Slavonia and prat of UNPA Western SlavoniaH . owever, the present chapter
will not deal with the events in late 1991 and early 1992 leading to the deployment of
UNPROFOR, nor with vioa ltions of human rights of Serbswho were not directly connected
with the fighting, which have already beedniscussed in more detail in Chapter V.5
1116. At the outset, however, it should be noted that in the period between 1992 and 1995, the
general discriminatory and in tolerant attitude of the gove rnment of President Tudjman
towards the Serbs in Croatia, accompanied with the rehabilitation of the Independent
State of Croatia,946was continued and aggravated by wa r crimes and serious violations
of human rights. This lead to their massive exodus, as evidenced by the fact that in 1993
there were 254,000 Serb refugees and displa ced persons that fled Croatia, which
equaled the number of the Croats that fled the Serb-held areas of the country. 947
2. Croatia and the RSK 1992-1995
A. The Deployment of UNPROFOR and Related Issues (1992)
1117. As already discussed, the fact that from the beginning of 1992 all parties to the conflict
in Croatia generally respected the cease-fire, as well as the acceptance of the Vance plan
by all relevant actors, led to the deployment of UNPROFOR and the creation of three
945See supra Chapter V, paras. 540–551.
946See supra Chapter V, paras. 552–558; see also Annexes 9–12.
947See Fifth periodic report on the situation of human rights in the territory of the former Yugoslavia submitted
by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 32
of Commission resolution 1993/7 of 23 February 1993, 17 November 1993, UN Doc. E/CN.4/1994/47, para. 99.
353 UNPAs in Croatia. The UNPAs were created in the areas in which the Serbs constituted
the majority or a substantia l minority of the population and “where inter-communal
tensions have led to armed conflict in the recent past.” There were three UNPAs:
Krajina, covering Sector South (Lika and Dalmatia) and Sector North (Banija and
Kordun); Western Slavonia, covering Sector West; and Eastern Slavonia, covering
Sector East. The UNPAs were to be fully demilitarized and all armed forces in them
948
were to be either withdrawn or disbanded.
1. The “Pink Zones”
1118. Certain areas in Croatia whichwere largely populated by Serb s, and which were under the
control of the RSK and not of the Croatian government, remained outside the agreed UNPA
949
boundaries. These areas came to be known as “pink zones”. In these areas, local Serb
authorities resisted the reestablishment of Croatian authority, while Croatia resisted the
950
change in UNPA boundaries that would encompass the “pink zones”. This posed a
significant challenge to UNPROFOR, in particular with regard to its deployment in the
951
Sectors North and South (UNPA Krajina). Eventually, on 30 June 1992, the Security
Council approved the Secretary-General’s propo asto extend UNPROFOR’s mandate to the
“pink zones” where, inter alia, UNPROFOR military observers and civilian police would
952
undertake monitoring and patrolling, whil vearious armed forces would withdraw.
2. The Miljevci Plateau attack
1119. Previously, on 21 June 1992, Croatian forces attacked positions of the RSK at Miljevci
Plateau, in the “pink zone” neaD r rniš, south of Sector South, and made an advance of several
kilometers. This violation of the cease-fire was conducte d in a well-planned manner,
according to UNPROFOR. 953The Security Council urged Croatia to withdraw its army to
954
previous positions but Croatia did not comply.
948See Map no. 6.
949For more on this, see Further Report of the Secretar y-General pursuant to Security Council resolution 752
(1992), 26 June 1992, UN Doc. S/24188.
950Ibid., para. 2.
951See ibid. para. 5.
952
Security Council resolution 762 (1992), paras. 5-7 & Further Report of the Secretary-General pursuant to
953urity Council Resolution 752 (1992), 26 June 1992, UN Doc. S/24188, para. 16.
Further Report of the Secretary-General pursuant to Security Council Resolution 752 (1992), 26 June 1992,
UN Doc. S/24188, para. 7.
954See Security Council resolution 762 (1992), para. 3.
3541120. According to information collected by non- governmental organization “Veritas”, forty
members of the RSK TO were killed or di sappeared during the Croatian attack at
955
Miljevci Plateau. Eye-witness statements indicate that a number of Serb soldiers
were not killed in combat but as prison ers of war. Others were tortured and
956
maltreated.
3. Demilitarization
1121. As already mentioned, the UNPAs were to be demilitarized according to the Vance
plan. Most of the JNA forces withdrew from UNPAs in the spring of 1992.957 As far as
the RSK TO was concerned, a number of its members were transferred to the RSK
police units. This was considered a violation of the Vance Plan, but the RSK authorities
argued that their population ha d to be protected from a possible Croatian attack.958
Evidently, the above described events at Mi ljevci Plateau only conf irmed these fears.
According to the Secretary-General,
“[t]he Serb local authorities have taken the position that official and
public threats by the Croatian authorities to resort to force, frequent
cease-fire violations and repeated armed incursions have made it
959
impossible for them to implement full demilitarization.”
1122.This would remain the position of the RSK, despite repeated calls for demilitarization
960
from the United Nations. As will be seen below, 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.
955See List of members of the TO RSK killed or disappea red at Miljevci Plateau (Annex 46), available at
http://www.veritas.org.rs/publikacije/Miljevci/Tekstovi/miljevci.htm).
956See Annex 47;http://www.veritas.org.rs/publikacije/Miljevci/Tekstovi/miljevci.htm.
957See Further Report of the Secretary-General pursuant to Security Council Resolution 752 (1992), UN Doc.
9584188, para. 4.
See Further Report of the Secretary-General pursuant to Security Council Resolutions 743 (1992) and 762
(1992), 28 September 1992, UN Doc. S/24600, paras. 4 & 7; Further Report of the Secretary-General pursuant to
959urity Council Resolution 743 (1992), 10 February 1993, UN Doc. S/25264, para. 12.
Further Report of the Secretary-General pursuant to Security Council Resolution 743 (1992), 10 February
1993, UN Doc. S/25264, para. 12.
960See, e.g., Security Council resolution 802 (1993), para. 4 and resolution 871 (1993), para. 4.
355B. The Resumption of Hostilities - 1993
1. The Maslenica Attack
1123.Despite problems, the situation in the UNPAs had stabilized and even started to
961
improve in the course of the second part of 1992. Even with respect to the very
difficult human rights situation in the RSK, which was characterized by discrimination,
abuse and numerous crimes against non-Serb s (but not genocide), the United Nations
was able to conclude that improvements had been made:
“... from November 1992 onwards, thesituation improved in all but a few
areas. The maintenance oflaw and order was gradually enhanced through
the reorganization and redeployment of the local police. The carrying of
‘long arms’, in breach of the agre ed plan, greatly diminished, and by
January 1993 such arms we re being carried only by the ‘border militia’.
The Serb authorities had informed UNPROFOR that these, too, would be
withdrawn once they were sure th at UNPROFOR could exercise full
962
protection against Croatian incursions across the lineof confrontation.”
1124.However, the improvement of th e situation in late1992 came to an abrupt halt when, on 22
January 1993, the Croatian forces launched anoffensive and attacked Maslenica and other
locations in the southern part of Sector South and the adjace nt “pink zones”. Two
963
UNPROFOR soldiers were killed and four more injured in this offensive. On 27 January
1993, the Croatian forc es captured the Peru ća dam. The RSK Serbs responded by removing
their stored weapons, in cluding heavy ones, from UNcontrolled storage areas. 964
1125.The Croatian offensive led to the destruction of the villages Smoković, Islam Grčki, and
Kašić. 965 Over 11,000 Serbs were displaced as the result of the Croatian attack and
found refuge in other parts of the RSK. 966
961
See Further Report of the Secretary-General pursuant to Security Council Resolution 743 (1992), 10 February
9623, UN Doc. S/25264, paras. 12–13.
963Ibid., para. 13.
Ibid., para. 14.
964Ibid.
965See http://www.veritas.org.rs/publikacije/Maslenica/Tekstovi/maslenica.htm.
3561126.After the events at Maslenica, the painstan kgily achieved progress in the disarmament process
was shattered, since the RSK lost confidencein UNPROFOR’s ability to protect the Serb
967
population. Croatian forces never retreated to the positions they held before the Maslenica
attack, despite having been called upon to do so by the Security Council. 968 Moreover,
President Tuđman threatened publicly that Croatia w ould attack the UNPAs if it considered
that UNPROFOR was unable to fulfill its mandate. This threat was to be fulfilled in the
coming period through several attacks that succev ssly cleansed the captured UNPAs or parts
of them from the Serb population and finally lead to the operaS tionrmin Krajina in 1995.
1127.The Croatian attack at Maslenica led to the resumption of armed clashes between
Croatia and the RSK with heavy fighting ar ound Zadar in Dalmatia during January and
February 1993. 970The situation was described as follows:
“The HV operation at Maslenica not only revived fighting in Dalmatia
but also brought a remobilization of Croatian and Serb forces throughout
the country. As the armies took up their old positions and the SVK
withdrew its heavy weapons from UN control, clashes began anew at
many of the same old hot spots, despite the continued presence of UN at
outposts all along the frontline. Serb artillery and mort ar fire erupted
throughout UN Sectors North and S outh, covering Banija, Lika and
Northern Dalmatia regions, and the Croatians responded in kind.” 971
1128. Afterwards, the hostilities continued, although tehw erould be no major go rund operations until
September 1993. On 15 May 1993, th e Secretary-General reported that “[t]he continuance of
hostilities despite resolution 802 (1993), includinrg epeated shelling, by both sides, of purely
civilian targets, and reports ofurther imminent incursions, havceaused tensions in the UNPAs
972
to rise to a degree not previously enco tened since the estalishment of UNPROFOR.”
966See Fifth periodic report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr.
Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 32 of
Commission resolution 1993/7 of 23 February 1993, 17 November 1993, UN Doc. E/CN.4/1994/47 (1993), para. 149.
967
Further Report of the Secretary-General pursuant to Security Council Resolution 743 (1992), 10 February 1993,
968Doc. S/25264, para. 16.
969Security Council resolution 802 (1993), para. 1.
Further Report of the Secretary-General pursuant to Security Council Resolution 743 (1992), 10 February
9703, UN Doc. S/25264, para. 24.
Central Intelligence Agency (CIA, alkan Battlegrounds: A Military H istory of the Yugoslav Conflict 1990–1995
(2002), Vol. I, p. 268 (Peace Palace Library).
971Ibid.
972Further Report of the Secretary-General pursuant to Security Council Resolution 815 (1993), 15 May 1993,
UN Doc. S/25777, para. 13.
3571129. At the same time, efforts undertaken by UNP ROFOR and within the framework of the
International Conference on the Former Yugos lavia to bring about a cease-fire and a
restoration of status quo ante by UNPROFOR were not su ccessful despite intensive
negotiations. 973
2. TMhedPakcket
1130. On 9 September 1993, the Croatian forces at tacked the area of Medak Pocket which
was located in the “pink zone” near Sector South. 974 The RSK retaliated by shelling
Croat frontline and urban targets. 975After capturing the villages of Divoselo, Čitluk and
part of Po čitelj, the Croatian advance halted. Fo llowing internationa l mediation, an
agreement between the Croatian and RSK side was signed on 15 September 1993, under
which a cease-fire was to take effect on 15 September, while the Croatian forces would
976
simultaneously withdraw from the territory entered on 9 September 1993. The
Croatian forces actually wit hdrew on 17 September, but be fore that they attacked
UNPROFOR’s Canadian battalion when it tried to enter the area, which led to a virtual
977
armed battle on 15–16 September.
1131. It is likely that the Croatian forces were actually preventing the entry of UNPROFOR
into the area whilst trying to complete the ethnic cleansing. This is how the Canadian
account of this event describes what UNP ROFOR’s Canadian ba ttalion found in the
area from which the Croatian forces had withdrawn:
“The sheer magnitude of the deva station they found, and the eerie
silence after the noise of explosions and shootings in the morning, was
crushing. They had arrived too late to help the Serbs in the Medak
Pocket, but they had forced their wa y in before the Croatian Special
Police could complete their clean-up. Every building had been burned or
flattened by mines. Now they under stood the truckloads of wood they
973
See Further Report of the Secr etary-General pursuant to Security Council Resolution 743 (1992),
974September 1993, UN Doc. S/26470, paras. 6–7.
Ibid., para. 9 & Fifth periodic report on the situation of human rights in the territory of the former Yugoslavia
submitted by Mr. Tadeusz Mazowiecki, Special Rapporte ur of the Commission on Human Rights, pursuant to
paragraph 32 of Commission resolution 1993/7 of 23 February 1993, 17 November 1993, UN Doc.
E/CN.4/1994/47, para. 100 et seq.
975Central Intelligence Agency (CI, alkan Battlegrounds: A Military H istory of the Yugoslav Conflict 1990–1995
(2002), Vol. I, p. 269.
976ICTY, Ademi and Norac, IT-01-46 & IT-04-76, Consolidated Indictment, paras. 44–45.
977For more on this event, see http://www.army.forces.gc.ca/2PPCLI/RH-United_Nations.asp.
358 had seen the Croats trucking in - ti nder to light the sturdy stone and
mortar farmhouses of the Medak. Ev erywhere there were shell casings,
accompanied by a similar number of di sposable latex gloves, indicating
that the Croats had been moving bodies to hide evidence. Grisly, burned
corpses were found, 29 in all. Hundreds of Serbs went missing, and were
never to return. Thousands had been displaced from their homes, which
were systematically razed. Even the farm animals that could not be taken
had been shot. There was no life in the Medak Pocket.” 978
1132. The Special Rapporteur of the UN Commission for Human Rights also reported that the
Croatian attack in the Medak Pocket was accompanied by ethnic cleansing and the
arbitrary execution of members of the Serb population in the villages of Divoselo, Čitluk
and Počitelj, situated in the Medak Pocket. 979 Further, the UN Rapporteur determined that
the following hamlets in the Medak Pocket – Sitnik, Driji ći, Vuksani, Donje Selo, Uzelci,
Raičevići, Rogići, Budići, Lički Čitluk and Krajinovići – were either entirely destroyed or
sustained heavy damage. The destruction was effected not only by shelling, but also by
the systematic destruction with explosives carried out by Croatian forces upon entering
980
the villages. It should also be noted that seven elderly persons of Serb origin were
found dead near the village of Mirlovi ć Polje in the region of Sector South, after an earlier
attack on the village by the Croa tian forces on 6 September 1993. 981
1133. The ICTY Prosecutor indicted Croatian gene rals Ademi and Norac in relation to the
982
events in the Medak Pocket. This is how the ICTY Indictment described the crimes
in the Medak Pocket:
“46. During the Croatian military operation in the Medak Pocket, at
least 29 local Serb civilians were unla wfully killed and others sustained
serious injury. Many of the killed and wounded civilians were women
and elderly people. Croatian forces also killed at least five Serb soldiers
who had been captured and/or wounded. (...)
978
979See ibid.
Fifth periodic report on the situation of human rights inthe territory of the formerYugoslavia submitted by Mr.
Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 32 of
Commission resolution 1993/7 of 23 February 1993, 17 November 1993, UN Doc. E/CN.4/1994/47 (1993), para. 100.
980Ibid., para. 104.
981Ibid., para. 106.
982ICTY, Ademi and Norac, IT-01-46 & IT-04-76, Consolidated Indictment.
359 47. Approximately 164 homes and 14 8 barns and outbuildings, being
a majority of buildings in the villages within the Medak Pocket were
destroyed, mostly by fire and explos ives, after the Croatian forces had
taken effective control. A substantia l portion of this destruction took
place between the cease-fire on 15 September 1993 and the completion
of the Croatian withdrawal at 1800 hours on 17 September 1993.
48. Between 9 and 17 September 1993 , property belonging to Serb
civilians was plundered by the Croatian forces, or by persons in civilian
clothes under the supervision of th e Croatian forces, for anything of
value. These included personal be longings, household goods, furniture,
housing items, farm animals, farm machinery and other equipment.
49. Serb-owned civilian property that was not subjected to plunder as
described above was burned or otherw ise destroyed. Household goods and
furniture were destroyed, farm machinery was damaged or destroyed with
bullets, farm animals were killed and wells were polluted.
50. As a result of these widespr ead and systematic unlawful acts
during the Croatian military operation, the Medak Pocket became
uninhabitable. The villages of the Po cket were completely destroyed,
thereby depriving the Serbian civi lian population of their homes and
livelihood. “
1134. The ICTY transferred the No rac and Ademi case for trial before Croatian courts in
983
2005. Norac was found guilty of war crimes a nd sentenced to 7 years imprisonment,
while Ademi was acquitted. 984
C. The Cease-Fire and Gradual Stabilization (1993–1994)
1135. As already mentioned, a cease-fire concluded on 15 September 1993 brought to an end
the fighting in the Medak Pocket. A series of local cease-fires was in place in all
UNPAs by the end of 1993. 985This was accompanied by talks within the framework of
983ICTY, Ademi and Norac, IT-01-46 & IT-04-76, Decision for Referr al to the Authorities of the Republic of
Croatia pursuant to Rule 11bis.
984See http://www.trial-ch.org/en/trial-watch/profile/db/legal-procedures/mirk….
985See Report of the Secret ary-General pursuant to Security Council Resolution 871 (1993), 1 December 1993,
UN Doc. S/26828, para. 10.
360 the International Conference on the Former Yugoslavia with the aim to achieve a
comprehensive cease-fire and to initiate discussion on confidence-building steps. 986 The
talks were conducted on the basi s of a three-step strategy: fi rst, discussion of a cease-
fire, second, of economic reconstructi on, and finally, of political questions. 987 During
November 1993, the two parties held talks at which they discussed a cease-fire
agreement and economic matters, in particular issues related to infrastructure and
communications, energy and water supply. Th e parties also agre ed to establish a
military joint commission to take on practical work on details of a cease-fire. 988
1136. While from 1992 onwards the United Nati ons had repeatedly expressed their
dissatisfaction with the fulfillment of UNPROFOR’s mandate, 989 it seems that the three-
step strategy, after difficult negotiations , did yield progress. On 29 March 1994, the
Croatian and RSK representatives signed a general cease-fire agreement which was
aimed to achieve and ensure a lasting cessation of hostilities. 990 In the subsequent
period, both parties generally observed the cease-fire. 991
1137. The international negotiators then focuse d on an economic cooperation agreement
between the parties and, afte r months of negotiations, th e parties finally made the
992
agreement on economic issu es on 2 December 1994. It envisaged cooperation with
respect to the supply of water and electricity, the opening of the Adriatic oil pipeline and
993
the highway. Shortly afterwards, on 21 December1994, the highway Zagreb-Belgrade
was opened in Sectors East and West and other provisions of the agreement started to be
implemented. 994 This led the Secretary-General to express cautious optimism as to the
possibilities of further progress in th e fulfillment ofUNPROFOR’s mandate. 995
986
987See ibid., para. 2 et seq.
988Ibid., para. 4.
989Ibid., paras. 4–8.
See, e.g., Security Council resolution 871 (1993), preambular para. 5; Security Council resolution 947 (1994),
preambular para. 6; see, also, Report of the Secretary-General pursuant to Resolution 871 (1993), 16 March
1994, UN Doc. S/1994/300, para. 8.
990For the text, see Letter dated 30 March 1994 from th e Secretary-General addressed to the President of the
Security-Council, 30 March 1994, UN Doc. S/1994/367.
991
Report of the Secretary-General pursuant to Resolution 908 (1994), 17 September 1994, UN Doc.
S/1994/1067, para. 3; Report of the Secretary-General pursuant to Paragraph 4 of Security Council Resolution
947 (1994), 14 January 1995, UN Doc. S/1995/38, para. 6.
992See Letter dated 2 December 1994 from the Secretary- General addressed to the Pr esident of the Security
Council, 2 December 1994, UN Doc. S/1994/1375.
993For the text of the agreement, see ibid., Appendix 1.
994Report of the Secretary-General pursuant to Paragraph 4 of Security Council Resolution 947 (1994), 14
995uary 1995, UN Doc. S/1995/38, paras. 12 & 14–17.
Ibid., paras. 26–27.
3611138. However, on 12 January 1995, President Tu đman and the Croatian government
declared that Croatia would not agree to a further extension of UNPROFOR’s
996
mandate, which caused grave concern for the Secretary-General about the risk of
997
renewed hostilities, should UNPROFOR be withdrawn from Croatia. In fact, already
998
at that time, Croatia was preparing to take over the Serb-held areas by armed force. In
hindsight, 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.
1139. A subsequent report of the S ecretary-General states that th ere had been “a significant
escalation in military activity and tension between the two sides” following President
999
Tudjman’s announcement. While on 26 January 1995 the Adriatic pipeline was
opened through Sector North, on 8 February 19 95 the Assembly of the RSK decided to
postpone further negotiations and implementation of the economic agreement, except
with respect to the highway and the pipeline, until UNPROFOR’s future presence was
1000
assured. The uncertainty over the extension of UNPROFOR’s mandate also affected
further negotiations on a political agr eement. On 30 January 1995, international
mediators, the “Zagreb-4” ambassadors, pres ented a “Draft agreement on the Krajina,
Slavonia, Southern Baranj a and Western Sirmium” to both sides. The Croatian
government accepted the draft as a basis for negotiations, but expressed reservations
about it, with some in the government considering that the agreement was utterly
1001
unacceptable as it amounted to the creation of a bi-national federation in the country.
The RSK officials refused to receive the draft until UNPROFOR’s mandate was
1002
renewed. In the opinion of the Secretary-General, the events following President
Tudjman’s announcement that Croatia would not agree on a further extension of
1003
UNPROFOR’s mandate led the parties to the brink of a major war.
996
997Ibid., para. 4.
998Ibid., para. 5.
J. Bobetko, All My Battles (Sve moje bitke), Zagreb, 1996, pp.400 & 407 (Annex 50).
999Report of the Secretary-General pursuant to Security Council Resolution 947 (1994), 22 March 1995, UN
Doc. S/1995/222, para. 3.
1000Ibid., paras. 7–8.
1001See M. Klemencic & C. Schofield, ”An UNhappy Birt hday in former Yugoslavia: A Croatian Border War”,
IBRU Boundary and Security Bulletin Summer 1995, p. 50, available at
1002p://www.dur.ac.uk/resources/ibru/publications/full/bsb3-2_klemencic.pdf
Report of the Secretary-General pursuant to Security Council Resolution 947 (1994), 22 March 1995, UN
1003 S/1995/222, para. 11.
Ibid., para. 60.
3621140. Eventually, after energetic efforts on the part of international mediators, Croatia
accepted that UN peacekeepers could sta y. A new UN force, known as UNCRO, was
created by Security Council resolution 981 (1995). UNCRO mandate differed from that
of UNPROFOR, and included performing the functions envisaged in the cease-fire
agreement of 29 March 1994, facilitating implementation of the economic agreement of
2 December 1994, and of all relevant Secur ity Council resolutions, and assisting in
1004
border control.
1141. However, soon after it agreed to the ex tension of the UN peacekeepers’ mandate and
the establishment of UNCRO, Croatia would grossly violate its international obligations
by conducting an all-out armed attack agai nst the Serb-held part of UNPA Western
Slavonia.
D. Operation Flash
1. Operation Flash and the Reaction of the Security Council
1142. On 1 May 1995, about 2,500 Croatian army a nd police with heavy equipment and air
support entered Sector West (Western Slavon ia) from both directions of the Zagreb-
Belgrade highway. The explanation given was that this was a police action to restore
security on the highway which was closed af ter inter-ethnic incidents that had taken
place in the previous days, notably the stabbing of a Serb on 28 April which was
followed by a retaliatory killing of three Croats by Serbs on 30 April. 1005Soon it
became clear that the Croatian government intended to secure complete control over
Sector West, which was accomplished within days. The RSK responded by firing
missiles on 2 and 3 May on Zagreb and the Pleso airfield, as well as shelling Karlovac
1006
and Sisak. The Croatian forces also made so me advances in S ectors North, South
1007
and East. Operation Flash ended around 4 May 1995, with the RSK losing control
over Western Slavonia,while the area was practically emptied of its Serb population.
1004
Security Council resolution 981 (1995), para. 3.
100Report of the Secretary-General Submitted pursuant to Security Council Resolution 994 (1995), 9 June 1995,
UN Doc. S/1995/467, para. 5.
1006Ibid. Seven persons were killed in the shelling of Zagreb, with over two hundred people injured. ICTY,
Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, paras. 308 & 313.
100Report of the Secretary-General Submitted pursuant to Security Council Resolution 994 (1995), 9 June 1995,
UN Doc. S/1995/467, para. 7.
3631143. There is evidence that the operation Flash had been planned long before the incidents
that served as a pretext fo r its launch took place. According to General Janko Bobetko,
Chief of the Main Staff of the Croatian Ar my during the operation, the initial operation
was planned as early as 5 December 1994, as part of the overall plan of preparations for
the final operations of the Croatian army for taking of Serb-held areas by force. 1008 This
means that Croatia was preparing the forcible takeover of the Serb-held areas at the time
when it concluded the economic agreement with the RSK and when a political solution
for the crisis was discussed with the help of international mediators.
1144.The Security Council immediately responded to the Croatian attack on the Western
Slavonia, demanding on 1 May 1995 “... that the Government of the Republic of Croatia
put an end immediately to the m ilitary offensive launched by its forces in the area of
Western Slavonia known as Sector West which started on the morning of 1 May 1995 in
1009
violation of the cease-fire agreement of 29 March 1994.”
1145. On 4 May 1995, the Security Council inter alia reaffirmed its previous statement,
demanded immediate compliance by the part ies and condemned the bombardment of
Zagreb and other places by the RSK forces. The Security Council also stated that it was
“deeply concerned by reports th at the human rights of th e Serb population of Western
Slavonia are being violated” and demanded from the Croatian government full respect
1010
of their rights. These presidential statements were reaffirmed by Security Council
resolution 994 (1995) of 17 May 1995, in cluding the demand to the Croatian
1011
government to “respect fully the rights of the Serb population”.
2. Exodus of the Serb Population and Violations of Humanitarian Law
1146. The Croatian takeover of Westen r Slavonia led to the exodus ofits Serb population. In July
1995, the Special Rapporteur on human rights inthe former Yugoslavia estimated that no
more than 1,000 Serbs remained in the area. In the first two days of the operation 10,000
Serbs left, and were followed by two thoa usd more in the weeks that followed. 1012
1008
ICTY,Martić, IT-95-11-T, Trial Chamber Judgment, 12 June 2007, para. 302, note 941, referring to Mr. Bobetko’s
1009Sve moje bitke[All my battles]. The relevant excerpts are reproduced in Annex 50 to this Counter-Memorial.
Statement by the President of the Security Council, 1 May 1995, UN Doc. S/PRST/1995/23, para. 2.
1010Statement by the President of the Security Council, 4 May 1995, UN Doc. S/PRST/1995/26, paras. 2, 4 & 6.
1011Security Council resolution 994 (1995), paras. 1 & 6.
1012Periodic 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. 28–29.
3641147. The Western Slavonia’s Serb population that wa s fleeing the Croatian attack across the
river Sava into Bosnia and Herzegovina wa s targeted by the Cr oatian forces who
committed numerous violations of humanita rian law. According to the UN Special
Rapporteur on human rights in the former Yugoslavia:
“The road from Okucani to the crossing into this territory [Bosnia and
Herzegovina] at the Sava River br idge sustained heavy shelling by
Croatian forces during this period, and Croatian warplanes bombarded
both sides of the river. To date it ha s not been possible to establish the
exact number of civilians killed in the course of these events. According
to Croatian government sources, some 20 ‘RSK’ civilians were killed in
the Sector during the entire operation; however, reports from refugees
who succeeded in crossing the river indicate the number along the
Okucani-Sava River road alone may have been considerably higher.” 1013
1148. At another location, withdrawing United Nations troops on 2 August 1995 “reported
seeing numerous bodies of civilians scattered along the road between the river and Novi
Varos, south of Okucani”. In the village of Nova Varoš, they saw “as many as 30 dead
1014
civilians in vehicles clustered in a group”. Further north on the same road, Croatian
1015
forces killed as many as 10 refugees.
1149. Witnesses provided disturbing accounts of the crimes committed in Nova Varoš on 2
August 1995, where Croatian forces attacked refugee column some kilometers long,
consisting mainly of passenger vehicles and tractors. The attackers also used mortar and
artillery fire, killing and woundi ng civilians in their vehicles or as they were trying to
flee.016
1150. Killings of Serb civilians were also reported elsewhere in Oku čani and Pakrac areas in
Western Slavonia. 1017
1013
1014Ibid., para. 7.
1015Ibid., para. 8
1016Ibid.
1017See Witness Statement of Petar Božić (Annex 48) and Witness Statement of Savo Počuča (Annex 49).
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. 9–12 & 14.
3651151. As in the case of the Medak Pocket operati on, the Croatian forces apparently tried to
remove evidence of their crimes. According to the UN Special Rapporteur,
“Between 2 and 4 May 1995, the Croatian military reportedly conducted
an intensive clean-up operation in the areas around Okucani, west
towards Novska and south towards th e 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 Okucani
along the main highway towards Za greb. By the time international
observers were permitted entry to the area after 4 May 1995, no signs of
possible breaches of humanitarian law were visible.” 1018
1152. There is conflicting information about the number of persons killed during operation
Flash. The Croatian authorities were reported to estimate the number of Serbs dead at
188, but this information was doubted by the UN Special Rapporteur, who considered
1019
that the number of dead exceeded the Government figures. According to “Veritas”, a
non-governmental organization, the number of the dead and missing Serbs is at least
1020
281.
1153. After operation Flash, Western Slavonia was for all prac tical purposes cleansed of its
Serb population. The Croatian Prime Minister at the time, Mr. Nikica Valenti ć, boasted
after the operation: “The Serb problem in Western Slavonia has been solved. There’s no
more than a thousand of them including ol d women and the elderly, and there are no
more than 300 to 400 people who are political factors.” 1021
1154. Similarly, Tudjman’s chief advisor at the time, Mr. Hrvoje Šarini ć, noted that “we
should be inspired by the way it is in We stern Slavonia. It was very positive for us,
because no one came back.” 1022
1018
1019Ibid., para. 12.
1020Ibid., paras. 15 & 53.
1021See http://www.veritas.org.rs/publikacije/Bljesak/Tekstovi/bljesak.htm
As quoted in Prosecutor’s pre-trial brief in ICTY,Gotovina et al. , IT-06-90-PT, Submission of Public
Version of Prosecution Pre-Trial Brief, 23 March 2007, para. 20.
1022As quoted in ibid., para. 26.
3663. Aftermath of Operation Flash
1155. Operation Flash once again confirmed to Serbs in the RSK that the UN peacekeepers
were not able to protect them from a Croatian attack. As the Secretary-General reported
on 9 June 1995,
“On the Serb side, there is contin ued anger and hostility at UNCRO’s
inability to prevent the Croatian o ffensive or fulfil its role under the
cessation-of-hostilities agreement of 3 May 1995. In meetings with my
Special Representative, Krajina Serb leaders have emphasized that this
was the fourth major military offensive by Croatia (following on those at
the Milavjeci [Miljevci] Plateau in June 1992, around Maslenica in
January 1993 and in the Medak pocket in September 1993) since United
1023
Nations peace-keeping forces were deployed.”
1156. Following operation Flash, the tensions between the parties remained high, with nearly
1024
continuous small-scale violations of the cease-fire agreement by both sides. While
the RSK forces were fighting in the Biha ć pocket, in Bosnia and Herzegovina,
supporting Mr. Fikret Abdić forces against the Bosnian Government, the Croatian army
1025
continued its gradual advance into th e Sector South in June and July 1995. The
Security Council, in a pres idential statement issued on 19 June 1995, called upon “the
parties, and in particular th e Government of Croatia, to ce ase all military action in and
1026
around Sector South.” However, the Croatian forces continued with their advance in
disregard of the Security Council presidential statement and despite assurances given by
1027
the Croatian government. This was to be one of the la st steps in the preparation of
1028
the final military action against the RSK, operation Storm.
1023
Report of the Secretary-General Submitted pursuant to Security Council Resolution 994 (1995), 9 June
1995. UN Doc. S/1995/467, para. 18.
1024Report of the Secretary-General Submitted pursuant to Security Council Resolution 981 (1995), 3 August
1995, UN Doc. S/1995/650, para. 4.
1025Ibid., paras. 5& 9. See also Report of the Secretary-General submitted pursuant to Security Council
resolution 994 (1995), 9 June 1995, UN Doc. S/1995/467, para. 9 and Map no. 8.
1026
1027Statement by the President of the Security Council, 19 June 1995, UN Doc. S/PRST/1995/30, para. 2.
Report of the Secretary-General Submitted pursuant to Security Council Resolution 981 (1995), 3 August
1028, UN Doc. S/1995/650, para. 5.
See infra Chapter XIII, paras. 1178–1179.
3671157. Simultaneously, international mediators made utmost efforts to stop the escalation of
the crisis by their activ ities both on the ground and under the auspices of the
International Conference on the Former Yugosla via. As will be seen in Chapter XIII,
these efforts ultimately proved unsuccessful. 1029 In this context, it is important to recall
that the draft political agreement (usually re ferred to as Z[agreb]-4 plan) was presented
to the parties in January 1995. The Croatian government accepted the plan as a basis for
negotiations, but expressed reservations, w ith certain elements in the government
considering that it was utterly unacceptable as it amounted to the creation of a bi-
national federation in Croatia. 1030The RSK refused to receive the draft until the UN
peacekeepers’ mandate was renewed. Subseq uently, some RSK leaders were more
amenable to the plan, while others rejected it. It is a fact, however, that on 2 August
1031
1995, Milan Babić, as Prime Minister of the RSK, accepted the Z-4 plan.
1158. The next day, at a meeting held on 3 A ugust 1995 in Geneva, on the eve of operation
Storm, Mr. Stoltenberg, the Co-Chairman of the International Conference on the Former
Yugoslavia, presented the parties with a seve n-point proposal designed to preclude the
Croatian military action and resolve th e crisis peacefully. It envisaged, inter alia ,
negotiations on a final settlement on the basis of the “Z-4” plan and the reopening of the
Zagreb-Knin-Split railway and the oil pipeline, which was very similar to the set of
conditions Croatia expected the Serbs to fulfi ll and that President Tu đman had shortly
before presented to the Secretary-General’s Special Representative Yasushi Akashi. 1032
1159. However, while the RSK delegation was inclined to accept the Stoltenberg proposal,
subject to clearance by its political lead ership, the Croatian delegation rejected it
straight away. 1033Operation Storm commenced the next day in the early morning.
3. Conclusion
1160. The preceding overview of the relations between the Croatian government and the
Serbs in the UNPAs, which formed the RSK, is by no means exhaustive and does not
1029
1030See Chapter XIII, para. 1181.
See M. Klemencic & C. Schofield, ”An UNhappy Birt hday 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….
1031Ibid., para. 158.
1032These were presented by President Tu đman to Mr. Akashi on 29 July 1995, see Letter dated 7 August 1995
from the Secretary-General addressed to the President of the Security Council, UN Doc. S/1995/666, p. 2.
1033Ibid.
368 attempt to discuss all the details of almost 4 years of tensions, armed clashes, and
negotiations between the parties. As already noted, UNPROFOR had difficulties in
fulfilling its mandate from the very beginni ng of its deployment in spring 1992. This
was to a considerable extent due to the attitude of the RSK authorities. In that regard, of
particular importance was the RSK’s failure to fully demilitarize the UNPAs, and the
refusal until 1995 to consider options involving reintegrati on of these terr itories into
Croatia, despite the clear commitment of the Security Council that Croatia’s sovereignty
and territorial integrit y should be respected. 1034At the same time, the RSK concerns
found their justification in the attitude of the Croatian government, which not only
1035
threatened from the very outset that it would integrate the UNPAs by force, but on
four occasions before the operation Storm actually undertook large military operations
for that very purpose. As the above overv iew demonstrates, it was Croatia’s major
military actions that halted progress made at the negotiating table or on the ground, as
was the case with the Maslenica Attack in January 1993 and operation Flash in 1995.
1161. It seems that the Secretary-General’s repor t to the Security C ouncil of 16 March 1994
fairly summarized the situation from the deployment of UNPROFOR in 1992 to 1994:
“The only major success achieved in relation to UNPROFOR’s basic
mandate in Croatia has been the withdrawal of JNA forces from
Croatian territory. In the absen ce of a comprehensive political
settlement, however, both sides ha ve sought to use UNPROFOR to
achieve their political goals. The Se rb side has taken advantage of the
presence of UNPROFOR in its effo rts to freeze the status quo, under
UNPROFOR ‘protection’, while establ ishing a self-proclaimed ‘State’
of the ‘Republic of Serb Krajina’ in UNPROFOR’s area of
responsibility. The Government of Croa tia has in turn insisted on the
reintegration of these areas into Croatia according to its internationally
recognized borders and demanded that refugees and displaced persons
be returned to their homes in the UNPAs. On four occasions, it has
launched military incursions in pursuit of these goals, which has further
intensified Serb hostility. Such actions, compounded by the lack of
103See e.g. Security Council resolution 815 (1993), preambular para. 2.
103See e.g. Further Report of the Secretary-General pursuant to Security Council Resolution 743 (1992),
10 February 1993, UN Doc. S/25264, para. 24.
369 cooperation from the local Serb author ities, who still maintain effective
military control over most of the areas occupied by them during the war
of 1991, have made UNPROFOR’s mandates in Croatia all but
impossible to fulfill.” 1036
1162. The rapprochement of the parties made in the course of 1994, and the cease-fire and
economic agreements concluded by them, gave rise to a cautious optimism by the
Secretary-General. However, regardless of the political progress being made, Croatia
decided to solve the RSK problem by resorting to the use of military force and not by
peaceful and gradual economic and political integration, which was the approach taken
by the international community and also verbally accepted by the Croatian government.
Croatia’s real position at the time is reveal ed in the Memorial: “the Republic of Croatia
resolved to address the problem directly through the use of military force and in 1995
Croatian forces, in two key operations, regained control of the UN Protected Areas.” 1037
1163. Evidence shows that the decision to use military force in retaking the UNPAs was
1038
already made by the end of 1994 at the latest. From that time onwards, Croatia was
preparing an all out military takeover of the UNPAs, regardless of the progress made in
the negotiations. As General Bobetko testified in his memoirs, operation Flash was one
element of a total plan of preparations by the Croatian army to take over the UNPAs.
According to him, “[t]he ‘Flash’ was introduction into the ‘Storm’”. 1039
1164. The operations taken in pursu ance of this plan, first Flash and then Storm, were much
larger than previous Croatian incursions at Miljevci Plateau, Maslenica and Medak
Pocket. But these previous operations also in volved gross violati ons of international
humanitarian law and the territories taken by the Croatian forces were emptied of the
Serbs and even made uninhabitable, such as in the case of the Medak Pocket. It was
therefore clear that, as an alternative to a peaceful and gradual integration of the UNPAs
into Croatia pursued by the international community, the military takeover of these
territories and their integrat ion by force necessarily meant that the Serbs living there
would not stay to await the destiny already suffered by the inhabitants of Miljevci
1036Report of the Secretary-General pursuant to Roti 871 (1993), 16 March 1994, UN Doc. S/1994/300, para. 8.
1037Memorial, para. 2.149.
1038See supra para. 1138.
1039See J. Bobetko, Sve moje bitke [All My Battles], p. 407 (Annex 50).
370 Plateau, Maslenica and the Medak Pocket. It also meant that the Croatian forces, as was
clear from their conduct in operation Flash, would not hesitate in indiscriminately
targeting all those who were not able to l eave the territory of Croatia in time. As
Bobetko testifies, the operations were to be conducted “with the cleansing of that whole
1040
territory.”
1040
Ibid. According to Bobetko, “It worked out all the assignments to the minutest detail; it was practically
constantly 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 CroatianArmy that subsequently turned into “Storm” with the
cleansing of the whole territory .” The original text reads as follows: “U njoj su razra đeni svi zadaci do detalja,
gotovo od 1994. do samoga izvo đenja stalno je usavršavana, jer je ul azila u ukupan plan priprema završnih
operacija Hrvatske vojske, koje će se posle pretočiti u “Oluju”, uz čišćenje tog celog teritorija.”
371372 CHAPTER XIII
OPERATION STORM AS THE NEW GENOCIDE AGAINST SERBS IN CROATIA
1. Introduction
1165.Chapter XIII will deal with events which oc curred in August 1995 and subsequent months
and will provide the Court with a factual basi s that will be used to further argue that
genocide was committed against part of the Serbian population in Croatia, namely Serbs
living in the territory of Krajina (Krajina Serbs). Term Krajina will be used throughout the
text as reference to territorieof UNPAs Sectors South and No rth as well as the surrounding
“pink zones”. 1041Sector South covered ge ographical areas of Li ka and Dalmatia while
Sector North covered area s of Banija and Kordun. 1042”Pink zones“represent territories
under Serb control, parts of different municipalities with Serbian population which were
also under UN protection desp ite the fact that they weresituated outside of the UNPAs. 1043
1166.As reported in the 1991 census 580.000 Serbs live d in Croatia and as such constituted
1044
around 12% of the population of the Republic of Croatia. As will be shown infra,
Krajina Serbs made up a substantial percen tage of Serbs in Croatia in 1995 when
genocide was committed against that part of the group.
1167.Serbs resided in Krajina since the establishment of the Military Krajina, a border district
1045
dividing the Ottoman and the Habsburg Empire, in XVI century. Because of the
1041See supra Chapter V, paras. 566-569, also see supra Chapter XII, paras. 1117–1118.
1042Sector South geographically encompassed areas of Northern Dalmatia (municipalities Knin, Benkovac and
Obrovac) and Lika (municipalities Gčac, Donji Lapac and Korenia) and Sector North geographically encompassed
areas of Banija (municipalities Dvor, Glina, Kostajncia and Petrinja) and Kordun (municipalities Vojnći, Vrginmost,
Slunj); see Report of the Secretary-General pursuant to Security Council resolution 721 (1991), 11 December 1991,
UN Doc. S/23280, Annex III; for the division of themunicipalities in Sectors South and North see Ni, Srpska
pobuna u Hrvatskoj 1991–1995, Zagreb, 2005, pp. 172–174, see also Hrvatski informacioni centar (HIC)UNPA,
Sector South available at:http://www.hic.hr/ratni-zlocini/hrvatska/dalmacija/u, UNPA Sector North available
1043ttp://www.hic.hr/ratni-zlocivatska/banovina/unpasjever.ht; See also Map no.6.
See supra Chapter V, paras. 566–569; see also Further Report of the Secretary General submitted pursuant to
Security Council Resolution 752 (1992), 26 June 1992, UN Doc. S/24188.
1044R. Petrović , ‘The national composition of Yugoslavia’s population 1, ugoslav survey, 1992, No. 1, p. 12.
1045P.H. Liotta, The Wreckage Reconsidered: Five Oxymorons from Balkan Deconstruction, Lanham, Maryland:
Lexington Books, 1999, p. 38; some authors also use the term “Military Frontier – the Vojna Krajina”, see T.
Judah, The Serbs : History, Myth and the Destruction of Yugoslavia , New Haven: Yale University Press, 1997,
p. 13; the term “Military Border” is also used, see J. R. ndmpe,Yugoslavia as History : Twice There was a
Country, Cambridge: Cambridge University Press, 2000, 2 ed., p. 30; D. Pavli čević (ed.), Vojna Krajina,
Povijesni pregled- historiografija-rasprave , Sveu čilišna naknada Liber, Zagreb, 1984, F. Mačanin, Vojna
Krajina do kantonskog uredjenja 1787, p. 23; See also Map no.1.
373 specific historical characteristics of this area, namely it being a border between two
great empires, the Military Frontier was a specific geographical territory populated by
people with specific social development, different from that of the rest of the population
in Croatia. Krajina was for Serbs living in that territory through cen turies a center of
cultural, religious and political life.46
1168.This Chapter will be structured as follows. Firstly, it will be demonstrated how the
Croatian military leadership prepared for the final strike against the Krajina Serbs by
conducting preparatory military operations.
1169.Secondly, the Court will be pres ented with the relevant pa rts of the Brioni meeting
during which, as will be submitted, a ge nocidal plan was envisaged among the top
Croatian political and military leadership. This section also shows how the final
agreement and final details of the operation Storm were agreed.
1170.Thirdly, the operation Storm will be described, as well as its effects on the Krajina
Serbs.
1171.Fourthly, the Applicant will submit the number of Serbian victims and provide a
timeline of when their killings were perpetra ted. This section will deal first with the
killing of the Serbs that t ook place when they were evacu ating in refugee columns and
then with the subsequent killings of the Serbs that remained in former Sectors South and
North.
1172.The fifth section will deal with the destruc tion of Serbian property that occurred both
during and after operation Storm.
1173.The sixth section will show th e after-effects of operation Storm. This section will also
explain the measures implemented by the Cr oatian Government which targeted Serbs,
their aim being to prevent Serbs from ever reestablishing their community in Krajina. In
this context, the discussion will also mention the criminal impunity enjoyed by the
Croatian perpetrators of most heinous crimes against Serbs.
1046
See infra Chapter XIV, paras. 1381–1382.
3742. Military Actions Conducted in Preparation of Operation Storm
1174.As explained previously, Croatia started pr eparations for the military takeover of the
1047
UNPAs long before operation Storm started. In particular, the target of these military
1048
operations was Krajina as defined supra.
1175.From the end of 1994 Croatia started conducti ng tactical military operations in the
territory of Bosnia and Her zegovina (BiH) with the goal of creating conditions for an
efficient attack against the Kr ajina and more specifically on the city of Knin that was
1049
positioned close to the border between BiH and Croatia.
1176.One of the leading Croatian commanders An te Gotovina led the operation “Zima 94”
from November 1994 onwards, the goal of which was to seize the Livno valley in BiH.
According to the CIA analysis of the events in Croatia, the operation was designed first
to relieve pressure on the Biha ć pocket that was controlled by the Bosnian Army V
Corps that was in conflict with Muslim forces loyal to Fikret Abdi ć, who were in
alliance with Serbs. This being a short-term goal, the second was to position HV forces
1050
for a later advance to Knin. The forces led by Gotovina (which included Bosnian
Croat forces, under the command of Major General Tihomir Blaški ć, and the HVO
Main Staff) employed in the “Zima 94” operation counted as many as 3,000 to 4,000
1051
troops for the main attack force, with more in reserve. The Operation was successful
1052
and lasted for 27 days.
1177.As in the case of the operation “Zima 94”, other Croatian operations that were planned
and subsequently carried out, threatened th e UNPA Sector South and again the city of
Knin, the main symbol of the Krajina Serb s. Operation “Skok -1” was carried out in
early April 1995 and was preceded by attacks and the seizure of key tactical points of
VRS/SVK units by General Gotovina’s for ces. Operation “Skok-1” began on 7 April
1047See supra Chapter XII.
1048See Map no. 6
1049See Map no. 8
1050Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990-
1995 (2002), Vol. I, p. 250 (Peace Pal ace Library); see also A.Gotovina, Offence Battles and Operations of HV
1051HVO (Napadni bojevi i operacije HV i HVO), Zapovijedništvo zbornog područja Split, Knin, 1996, p. 25.
1052Ibid.
A.Gotovina, Offence Battles and Operations of HV and HVO (Napadni bojevi i operacije HV i HVO) ,
Zapovijedništvo zbornog područja Split, Knin, 1996, p. 32.
375 1053
1995 covering the border area at Mount Dinara, extending into the RSK. The goals
1054
of the operation were fulfilled in one day.
1178.Part of the UNPA Sector Sout h territory was attacked at the beginning of June 1995
during the operation “Skok-2”. According to the analysis of the CIA the primary
objective of the operation was to secure th e main pass out of the Livno Valley and key
mountains above Glamo č, which would put HV troops in a position to take over
Bosansko Grahovo and Glamo č. The operation began on 4 June 1995 and lasted one
1055
week and Croatian forces managed to take over more then 450 square kilometers of
1056
the area under Serbian control.
1179.With the completion of the “Skok-2”, the HV was ready to take Bosansko Grahovo and
then Knin. 1057The international community also recognized the danger that after the
military successes of the Croatian Army in Sector West, the Croatianauthorities would be
motivated to conduct a similar campaign in e Sctor South, notwithstanding assurances by the
Croatian Government that it would not pursue further military objectives. The Secretary-
General’s report to theSecurity Council noted two Croatia n army attacks on 4 and 6 June
when the Kenyan battalion campat Civljane sustained sh elling from the Croat army. 1058
1180.The placing of UNCRO forces at risk, the military actions of the Croatian Army on the
territory of Bosnia and Herze govina, and an obvious threat to the Sector South by the
Croatian army, prompted the President of th e Security Council to issue the following
warning to Croatia:
“The Security Council looks to th e parties to cooperate fully and
unconditionally with UNCRO in the performance of its mandate and to
ensure the safety, security and freed om of movement of its personnel.
1053Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990 –1995 (2002), Vol. I, p. 296 (Peace Palace Library).
1054A.Gotovina, Offence Battles and Operations of HV and HVO (Napadni bojevi i operacije HV i HVO) ,
Zapovijedništvo zbornog područja Split, Knin, 1996, p. 40.
1055Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990-
1995 (2002), Vol. I, p. 300 (Peace Pa lace Library); see also A.Gotovina, Offence Battles and Operations of HV
1056HVO (Napadni bojevi i operacije HV i HVO), Zapovijedništvo zbornog područja Split, Knin, 1996, p. 45.
A.Gotovina, Offence Battles and Operations of HV and HVO (Napadni bojevi i operacije HV i HVO) ,
1057vijedništvo zbornog područja, Split, Knin, 1996, p. 50.
Ibid.; see also A.Gotovina, Offence Battles and Operations of HV and HVO (Napadni bojevi i operacije HV i
1058, Zapovijedništvo zbornog područja Split, Knin, 1996, p. 45.
Report of the Secretary-General submitted pursuant to Security Council Resolution 994 (1995), 9 June 1995,
UN Doc. S/1995/467, para. 9.
376 The Council demands that they fulfill 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
1059
conflict across this border…”
1181.However, despite these warnings the UN bodies were unable to prevent Croatia carrying
out its plans to destroy the Krajina. UN Secretary General noted that:
“Despite assurances by the Croatian Government that it would not pursue
military objectives before the end of the present UNCRO mandate period
and in disregard of the statement by the President of the Security Council
on 16 June 1995 (S/PRST/1995/30), the co mbined attack of the Bosnian
Croat forces and the Croatian Ar my, launched on 4 June 1995 in the
Dinara mountains area, has continued and has resulted in the seizure and
occupation of positions inside areas covered by the cease-fire agreement.
It also indicates a possible decision by the Government to use force to
reintegrate the Serb Krajina region…” 1060
1182.Moreover, Croatia ignored all warnings while pursuing its plan to eradicate Krajina. It
used time to regroup its forces and to enter into the Spl it agreement on 22 July 1991
which was concluded between Croatian President Franjo Tudjman, Bosnia and
Herzegovina President Alija Izetbegović and representative of Bosnian Croats Krešimir
1061
Zubak. Even though the official explanation fo r concluding this agreement was the
lending of military support to the Bosnian Army, it is now obvious that for the Croatian
1059
1060tatement by the President of the Security Council, 19 June 1995, UN Doc. S/PRST/1995/30 (emphasis added).
Report of the Secretary-General submitted pursuant to Security Counc il Resolution 981 (1995), 3 August
1995, UN Doc. S/1995/650, p. 2, para 5.
106Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990– 1995 (2002), Vol. I, p. 364 (Peace Palace Library).
377 Government this agreement was only another step towards achieving their primary goal
– the takeover of the Krajina by force. As noted in the CIA analysis:
“In making common cause with the Bosnians against the Serbs of Bosnia
and Yugoslavia, however, President Tudjman intended also to make an
opportunity of the crisis aimed to achieving the Croatia’s consummate
1062
political objective- the destruction ofthe Republic of Serbian Krajina.”
1183.At the same time, the RSK, pressured by Croatian military actions, conducted – together
with Muslim forces loyal to Mr. Fikret Abdi ć – military action against the Bosnian
Army V Corps in the Bihać pocket. Combat activity in Biha ć was used by the Croatian
1063
Government as a pretext for operation Storm.
1184.The Croatian plan required onefinal step before their forceswould storm Krajina and that
step was gainingcontrol over Glamoč and Grahovo in Bosnia and Herzegovina. Operation
“Ljeto – 95” was conducted be tween 25-28 July 1995 in cooperation with the Bosnian
Croat forces. According to Ante Gotovina, oneof the goals of the operation was to create
conditions for the subsequent takeover of Knin an d the areas that were in Northern
Dalmatia and Lika under the control of the Serbs. 1064 The strategic importance of the
operation for the final attackon Serbs in Krajina was notedby the UN Secretary General:
“Bosnian Croat forces, apparently supported by Croatian Army elements,
have also continued their attacks in the Livansko Polje area adjacent to the
Croatian border in Bosnia and Herzegovina, capturing Bosansko Grahovo and
Glamoc, putting their forces in a position tto hreaten Knin directly and cutting
the main supply route from Knin to Banja Luka. These forces have now
moved closer to the international bord er and established a blocking position
near Strmica. Between 25 June and 30 July, approximately 2,861 Croatian
army troops as well as vehicles andequipment have been observed crossing
into Bosnia and Herzegovina at Kamensko. As a result of this fighting, 12,000
to 14,000 Serb refugees are now movinig n the direction of Banja Luka.” 1065
1062
1063Ibid.
Letter dated 7 August 1995 from the Secretary-General addressed to the President of the Security Council,
7 August 1995, UN Doc. S/1995/666, p. 1.
1064A.Gotovina, Offence Battles and Operations of HV and HVO (Napadni bojevi i operacije HV i HVO) ,
Zapovijedništvo zbornog područja Split, Knin, 1996, p. 58.
1065Report of the Secretary-General submitted pursuant to Security Counc il Resolution 981 (1995), 3 August
1995, UN Doc. S/1995/650, p. 2, para. 6.
3781185.At the same time, on its own territory Croatian Army continued a major build-up of
troops around Sectors North and South. 1066According to the CIA analysis: “…The HV
in fact began to mobilize its forces and mo ve units into position for this strategic
offensive – already dubbed ‘Oluja’ – even as it was launching “Ljeto 95”….” 1067
1186.Following such military actions the intern ational community tried once more to
negotiate a peaceful solution. Negotiati ons between President Tudjman and UN
Secretary General Special Representative, Mr. Yasushi Akashi, had shown that at that
point in time Croatia was by no means rea dy to accept a peaceful solution. In his Letter
dated 7 August 1995, the UN Secretary-Genera l explains Tudjman’s attitude and
referred to warnings he had been given about further actions:
“Meanwhile, on 29 July, my Special Representative, Mr. Yasushi
Akashi, had met with President Tudjman to forestall what appeared to be
an imminent military confrontation. President Tudjman expressed his
Government’s willingness to participat e in political and military talks
with Knin, but stressed that progress on the ground must necessarily
follow. If such progress was not achi eved in a matter of days, Croatia
would take whatever measures it deemed necessary to redress the
situation. Specifically th e President insisted on the reopening of the
Adriatic oil pipeline within 24 hour s, rapid agreement on the opening of
the Zagreb-Knin-Split railway and immediate progress on political re-
integration of the Serbs on the basis of Croatia’s Constitution and Law on
Minorities. President Tudjman did, however, agree to send
representatives to Geneva for the meeting sponsored by the International
1068
Conference on 3 August.”
1187.On 30 July emergency talks were held between Akashi and the RSK leaders in Knin.
These talks secured a six-point commitment including a guarantee that Serbian forces
1066
Letter dated 7 August 1995 from the Secretary-General addressed to the President of the Security Council,
7 August 1995, UN Doc. S/1995/666; see also ICTY, Gotovina et al., IT-060-90, testimony of witness
Alain Robert Forand, 3 June 2008, Transcript 4108.
106Central Intelligence Agency (CIA),Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990– 1995 (2002), Vol. I, p. 365 (Peace Palace Library).
106Letter dated 7 August 1995 from the Secretary-General addressed to the President of the Security Council,
7 August 1995, UN Doc. S/1995/666, p. 2, para 3.
379 would withdraw fully from the Biha ć pocket and desist from further cross-border
1069
interference. CIA analysis found that:
“On 30 July, President Martić and General Mrkšić met with UN Special
Representative Yasushi Akashi and agreed to withdraw from Bihac as part
of six-part accord that, from the UN’spoint of view, mightavert the danger
of wider war posed bythe sudden threat of aCroatian offensive.” 1070
1071
1188.Despite the fact that Serb forces started to withdraw from Bihać on the same day, the
Croatian Government was not even contemplating abandoning its plan to attack Krajina.
President Tudjman kept setting new conditions. As stated by the Secretary General:
“However, the Croatian Government considered these commitments
insufficient. In a written reply, President Tudjman rejected the
agreement, on the grounds that it did not meet the terms he had presented
to my Special Representative (see a nnex II). The Croatian Government
did, however, reaffirm its readiness to participate in the talks at
1072
Geneva.”
1073
1189. On 3 August 1995, at the mee ting chaired by Mr. Stoltenberg between the Croatian
Government and the Serb delegation, the Croatian delegation took the position that the
Croatian Serb leadership had to immediatel y accept reintegration into Croatia. On the
other hand, the Serb delegation requested th at there first be a cessation of hostilities.
This is how the Secretary-General describes what happened next:
“After a series of bilateral meetings, the Co-Chairman presented to the
two delegations a list of seven poi nts 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
1069Ibid., see Annex 1 of the Letter (text of the 30 July Agreement).
1070Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990 –1995 (2002), Vol. I, p. 367 (Peace Palace Library).
1071
1072Ibid.
Letter dated 7 August 1995 from the Secretary-General addressed to the President of the Security Council,
1073gust 1995, UN Doc. S/1995/666, p. 2, para. 4.
Mr. Stoltenberg was the Co-Chairme n of the International Conference’s on Former Yugoslavia Steering
Committee.
380 Croatian Serb delegation was inclined to accept the paper as a useful
basis for progress, subject to clearan ce by its political leadership, but the
Croatian Government delegation’s view was that the paper did not
address its fundamental concern for th e Krajina Serbs to be reintegrated
1074
under the Croatian Constitution and Laws.”
1190.The next day, on 4 August 1995, early in the morning, the Croatian Army launched a
major offensive against Krajina. 1075The timing of the event confirms that the Croatian
side only participated in the negotiations for tactical reasons, while at the same time it
had already decided to destroy Krajina Serbs by the use of military force.
3. Plan and Preparation for Operation Storm
A. Introduction
1191.The plan for operation Storm was finalized during the Brioni meeting but the decision to
use military force in retaking the UNPAs wa s made much earlier, by the end of 1994 at
1076
the latest. The efforts to strengthen the Croatia n army had been continuously going
on since 1992. As explained by the Croatian official:
“during 1992, and in 1993 in particul ar, training courses for the Staff
commanding officers and non-commissioned officers were intensified at
all levels in an attempt to create a valid basis for further studies of the
entire military system in order to get prepared for the forthcoming events
and operations that were before us and eventually did take place”. 1077
1192.According to one of the Applicant’s highest army officials at the time, General Bobetko,
the signed Vance plan represented a mere “pause” 1078which required the improvement
of Croatian Army combat readiness th rough carefully developed educational
1074
Letter dated 7 August 1995 from the Secretary-General addressed to the President of the Security Council,
1075gust 1995, UN Doc. S/1995/666, p. 2, para. 5.
1076Ibid.
1077See supra Chapter XII, para. 1163.
ICTY, Gotovina et al, IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 27.
1078J. Bobetko, All my battles, (Sve moje bitke), Zagreb, 1996, p. 502.
381 1079 1080
programs, the improvement of operational capacity and mobility, reorganization
1081
and staffing, and the improvement of anti-armor combat and engineering support
1082
systems, among other things. Steps taken to that effect werefurther supplemented with
engagement of the private military contractors from the US, Military Professional
Resources Incorporated (MPRI),which assisted Croatian authorities in the reorganization
1083
of its armed forcesand the enhancement of its combateffectiveness and efficiency.
1193.Efforts taken to achieve the set goal were tested on a number of occasions throughout
1993 and 1994 through combat operations that were conducted, among other places, in
1084
Miljevci, Maslenica, Medak Pocket, South Dalmatia and Konavle. They were
considered to be “merely tactical and operational at best” in preparation for
implementation of the operation that would sa tisfy Croatia’s “strategic interests” –
operation Storm:
“These activities and operations se rved only to test the offensive
capabilities of the Croatian Army; the conclusion was that a solid
preparatory work, an intensive preparation might end with the creation of
1085
units capable of performing any such task”.
1194.Thus, when the decision to take Krajina by military force was made in 1994, Croatia
had the military capabilities to perform this task. What is significant, however, is that
these operations were clearly not intended solely to regain territories held by the Serbs,
but also to remove the Serbs themselves. This is clear from the attitude of the Croatian
authorities to the flight of the Serb ian population from We stern Slavonia during
1086
operation Flash. This attitude crystallized into genocidal intent at the time of
operation Storm as is evident from the transcript of a meeting of the Croatian leadership
that preceded the operation.
1079
1080Ibid.
See ICTY, Gotovina et al. , IT-060-90, Reynaud Theunens: Expert report, Croatian Armed Forces and
Operation Storm, Part II, p. 27.
1081Ibid.
1082Ibid.
1083See J. Bobetko, All my battles, (Sve moje bitke), Zagreb, 1996, pp. 507-508; see also ICTY, Gotovina et al.,
IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation Storm, Part II, p. 28.
1084
ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
1085m, Part II, p. 31.
1086Ibid.
See supra Chapter XII, paras. 1142–1153.
382B. The Brioni Meeting
1195.A meeting of the highest Croatian leader s was held at Brioni on 31 July 1995 and
during that meeting President Tudjman agreed with his closest associates about the
1087
goals of the forthcoming military operation. First, the transcript shows that Croatia
was not negotiating with the Serbs bona fide but just in order to appear cooperative in
the eyes of the international community. As President Tudjman noted at that time:
“Franjo Tudjman (FT):
I told Sarinic that in principle we favor negotiations if they accept the
conditions I have set out in my reply to Akashi, but that he will not head
the delegation if the meeting is he ld. So we can do that, he will call
today, and we can accept this as a mask, that we are accepting the talks,
and even designate our own delegation, but let us discuss whether we
will undertake an operation tomorrow or in the next few days to liberate
the area from Banija to Kordun to Lika and from Dalmatia to Knin...” 1088
1196.Later at the meeting, Pres ident Tudjman stated: “FT : Hold on, I’m going to Geneva to hide
this, and not to talk. I won’t send Minister but the Assistant Foreign Minister. That’s on
Thursday.So, I /want/ to hide what we are preparing for the day afteA r.nd we can rebut any
1089
argument in the world about how we didn’t wat nt talk, but thatwe only wanted what…”
1197.Further, and more importantly, President Tudj man stated his criminal goal very clearly
at the meeting:
“FT: But if in the forthcoming days we are to undertake further
operations, then Biha ć can only serve as some sort of pretext and
something of a secondary nature. We must inflict total defeat upon the
enemy in the south and north, just so we understand each other, leaving
the east side aside for the time being. 1090
1087
At the very beginning ot the meeting, President Tudj man declared: “Gentlemen, I have called this meeting to
assess the current situation and to hear your viewbsefore I decide on what our next steps should be in the forthcoming
days” (Annex 52, p. 1, emphasis added). The meeting was concluded with the following statement of President
Tudjman: “Soagree in princip, in the spirit of what we have now discussed” (Annex 52, p. 44, emphasis added).
1088Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
Officials, on 31 July 1995 at Brioni, p. 2 (Annex 52, emphasis added).
1089Ibid., p. 32 (emphasis added)
1090Ibid., p. 1
383 …
FT: 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
1091
capitulate within a few days.”
1198.It clearly follows that the goal of the forthcoming military action was not only to
achieve military control over Krajina and its reintegration to Croatia, but “to inflict such
blows that the Serbs will to a ll practical purposes disappear.” It can be seen from the
transcripts that none of the participants opposed such a plan but, after President
Tudjman spoke, they discussed methods of how to implement it.
1199.Development of a plan targeted against Kraj ina Serbs was also related to guarantees
prescribed by the Constitutional Law on Minorities that was enacted in 1992. According
to this law, Croatia was obliged to a ssign a proportionate number of seats in the
Parliament to any minority counting mo re than 8% of the total population. 1092This
meant that the reintegration of the Krajina Serbs into Croatia would lead to them being a
significant political factor, c onsidering that Serbs made up about 12% of the entire
population in Croatia at the time. This wa s an additional incentive for attempting to
destroy Krajina Serbs.
1200.The participants of the “Brioni meeting” were aware that a great numbers of Serbs
would flee as soon as the attack began in or der to save themselves from the Croatian
forces. Thus, the participants at the m eeting discussed whether they should open a
corridor for the Serbs in order to avoid bigger losses to th e Croatian side. According to
President Tudjman,
“FT: It’s all very well that the Admiral is now supposed to close off their
remaining three exits, but you are not providing them with an exit
anywhere. There is no way out to go… (to close it off). To pull about and
flee, instead, you are forcing them to fight to the bitter end, which exacts
109Ibid., p. 2
109Ustavni zakon o ljudskim pravima i slobodama i pravima etnčkih i nacionalnih zajednica ili manjina u
Republici Hrvatskoj [Constitutional Law on Human Rights and Freedoms and the Rights of Ethnic and National
Communities or Minorities in the Republic of Croatia], Narodne novine [Official Gazzette], no. 34/92, entered
into force on 17 June 1992 .
384 a greater engagement and greater lo sses on our side. Therefore, let us
also please take this in to consideration… Accordi ngly, let us take into
consideration, on a military level, the possibility of leaving them a way
1093
out somewhere, so they can pull out part/of their forces …”
1201.Operation Storm was preceded by psychological warfare the goal of which was to create
fear among the Krajina Serbs.
1202.Psychological warfare conducted through the use of local media, documents, and
contacts with local Serbs was used to “cre ate disorientation; weaken will, morale and
motivation in the enemy Army and among th e population” while at the same time
1094
“strengthening combat readiness of the HV units”. These operations ran concurrently
1095
from approximately the end of 1994 through to the beginning of June 1995.
1203.The printing of leaflets and their content were accordingly discussed during the Brioni
meeting. On that occassion, President Tudjman stated his views about the rights of the
Krajina Serbs:
“FT: A leaflet of this sort - general chaos, the victory of the Croatian
Army supported by the international community and so forth (Serbs, you
are already withdrawing, and so fort h), and we are appealing to you not
to withdraw, we guarantee … This means giving them a way out, while
pretending to guarantee civil rights, etc.” 1096
1204.Neither President Tudjman nor any other pa rticipant at the meeting invited Croatian
commandants to respect the rules of humanitarian law during the forthcoming operation.
Moreover, President Tudjman clearly provoked te hmilitary officers to think about revenge:
“And, particularly, gentlemen, please remembe hrow many Croatian villages and towns have
been destroyed, but that’s still notthe situation in Knin today...” 1097 Later, at the meeting,
President Tudjman pointed out: “If we had enough [ammunition], thenI too would be in
1098
favour of destroying everything by shelling prior to advancing.”
1093Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
Officials, on 31 July 1995 at Brioni, p. 7 (Annex 52).
1094ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 39.
1095
1096Ibid., pp. 39–40.
Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
1097cials, on 31 July 1995 at Brioni p. 29 (Annex 52).
Ibid, p. 11.
1098Ibid, p. 26 (emphasis added).
3854. Operation Storm
A. General
1205.OperationStormbegan on 4 August and was over by 8 August 1995. The attack on Krajina
was one of the largest European land offensives since World War II. Preparations for it took
place from December 1994 through to August 1995. 1099 In the words of Croatian army
officials, the attack on Krajina was “the grandfinale” and all actions taken prior to it were
1100
geared toward the “preparation and development of Croatian Army” for it.
1206.The importance of the operation Storm can be seen from its comparison to previous
Croatian operations.
“Some less important operations from that period such as Maslenica,
Miljevac Heights, Medak Pocket, Li beration of South Dalmatia and
liberation of Konavle, after the J NA pulled out, liberation of Prevlaka,
driving out the East Herzegovina Ch etnics were renowned. However, all
these operations were merely tactical or operational at best, whereas the
1101
strategic interests were realized much later.”
1207.The following military districts (MD) of the Croatian army took part in the operation
1102
Storm: Zagreb district under the Command of Major General Ivan Basarac, Karlovac
1103
district under the command of Major General Miljenko Crnjan, Gospić district under
1104
the command of Colonel General Mirko Norac, and Split District under command of
Major General Ante Gotovina. 1105
1099ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 95.
1100Ibid., p. 76.
1101
Ibid., pp. 3– 31.
1102Zagreb Military District units that were supported with 2 ndGuard Brigade and 81 stIndependent Guards
Battalion (MUP Special Police), two reserve infantry brig ades, and five Home Defense regiments, see Central
Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990-1995
11032), Vol. I, p. 368 (Peace Palace Library).
Karlovac MD units that were supported with MUP Special police Battalion, two reserve infantry brigades
and antitank battalion. Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the
1104slav Conflict 1990 –1995 (2002), Vol. I, p. 36st(Peace Palace Library).
Gospić MD units that were supported with 1 Guard Brigade, one conscript infantry brigade, two reserve
infantry brigades and six Home Defense regiments. Central Intelligence Agency (CIA), Balkan Battlegrounds: A
Military History of the Yugoslav Conflict 1990-1995(2002), Vol. I, p. 368 (Peace Palace Library).
1105Split MD included following units: 4 Guards Brigade, 7 Guards Brigade, 2 Guards Battalion, 81 Guards st
st th th th th
Battalion, 1 Croatian Guardth 112 Brigade (Zadar), 113 Infantry Bthgade (Šibenik), 114 Brigade, 6 thHome
Guard Regiment (Split), 7 Home Guard Regiment (Zadar), 15 Home Guard Regiment (Šibenik), 126 Guard
Regiment (Šinj), 134 thHome Guard Regiment (Biograd), 142 nd Home Guard Regiment (Drniš), 14 thArtillery
3861208.Croatian special police was al so involved in the operation Storm and was under the
command and control of the Co lonel General Mladen Marka č. Marka č who was
subordinated to Zvonimir Červenko, Chief of the Croatian Army, received orders to
coordinate the prepar ation for the operation Storm with the Command of Split and
Gospić Military Districts. 1106 The Special police after commencment of the operation
Storm also used its artilery and was involved in taking control of Serbian towns in next
couple of days. 1107
1209.Operation Storm was conducted from four different directions. The attack from the
north was aimed at Petrinja and Kostajnica. The attack from northwest went from
Karlovci to Vojni ć. The western attack, supporte d by ABiH, moved from Gospi ć to
Gračac, Udbine and Plitvica lakes. Finally the south direction of the attack started from
the territory of BiH and Dalmatia and was ai med towards the city of Knin and areas of
Benkovac and Obrovac. 1108
1210.Numerous towns in both UNPA Sectors North and South fell one by one. Knin,
Obrovac, Benkovac, Gra čac and Dubica fell as early as 5 August 1995. Petrinja,
Udbina, Slunj, Glina, Kostaj nica on 6 August, while Vojni ć and Topusko were
conquered on 7 August. 1109
1211.The Croatian forces also targeted UN peacekeepers. According to a UN report:
“Numerous United Nations observation posts were captured, in some
cases after being deliberately fi red upon by the Croatian army. Four
United Nations peace-keepers were ki lled and a number of others were
th th nd
Battalion, 20 Artilthry Battalion (Split), 20Artillery and Rrdket Brigade (Air defence) (Šibenik), 72 MP
Battalion (Split), 11 anti tank artillery and rocket Battalion, 73 MP Battalion (Split), 264 Reconnaissance and
Sabotage Company, 306 Logistic Base (list includes units that were resubordinated to Split MD) see ICTY,
Gotovina et al. , IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation Storm ,
Part II, pp. 100–104.
1106ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 265.
1107
1108Ibid., p. 266.
See Map no.9; also, in addition, Special police units under the command of Mladen Markač were given order
to carry out an offensive operation from the area of Moun t Velebit in order to seize control of the area of Mali
Golić – Sveti Rok – Gračac, to cut the Gospić – Gračac road, and to link up with th e forces of of the Split MD,
see ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 265.
1109For detailed information on military aspect of the operatiStorm see Central Intelligence Agency (CIA),
Balkan Battlegrounds: A Military History of the Yugoslav Conflict 1990 – 1995 (2002), Vol. I, pp. 367–376
(Peace Palace Library).
387 wounded. Seven Danish peace-keepers were used as human shields when
they were forced by a Croatian officer to walk at the front of a group of
advancing soldiers in Bosanka Dubica.” 1110
1212.Krajina Serbs were left with no other choice but to run before the Croat forces leaving
virtually everything behind. The formation of columns in the areas that were most in
danger from the Croatian forces quickly becam e a chaotic escape of the complete Serb
population of Krajina. Mr. Andrew Lesli, Chief of Staff of th e UNPROFOR Sector
South, when asked whether he agrees that the operation Storm was conducted with a
high degree of expertise, stated that he would agree that certain elements of operation
Storm were conducted with a high degree of expe rtise if the aim of such an operation
was to ensure that the local population was cleansed from the region. 1111
1213.The outcome of operation Storm was never in serious doubt . On the one side were
150,000 soldiers (135,000 members of the HV and 15,000 members of the Bosnian
Army), while on the other were around 30,000 RSK soldiers. 1112 Moreover, the average
age of Serbian soldie rs was around 50 years. 1113 According to General Gotovina only
his unit, MD Split, had 2.1 men for every member of VRSK forces, which was the
“most optimum extent of forces if comp ared to previous offensive operations”. 1114The
entire operation lasted only 4 days, and the main goal, takeover of Knin, was fulfilled
within the 30 hours from the onset of the operation, 1115 while the Croatian forces
incurred only 0.12% of losses in total. 1116
1214.It is evident simply on the face value of th ese figures that a serious response from the
Serbian Army of Krajina (“SVK”) was hardly possible.
1110
Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, p. 7, para 16.
1111See ICTY,Gotovina et al.,IT-060-90, testimony of witness Andrew Lesli, 22 April 2008, Transcript p. 2015.
1112O. Žunec, Naked Life (Goli život), Zagreb, 2007, p. 842.
1113
M. Sekulić, Knin fell in Belgrade (Knin je pao u Beogradu), pp. 145-146; also ICTY, Gotovina et al., IT-
060-90, testimony of witness Roland Dangerfield, 24 July 2008, Transcript pp. 7153-7154 (witness was a liason
officer in UN Sector South Headquater in Knin and testified that ARSK was under-equipped).
111A. Gotovina, Offence Battles and Operations of HV and HVO (Napadni bojevi i operacije HV i HVO) ,
Zapovijedništvo zbornog područja Split, Knin, 1996, p. 72.
1115Ibid., p. 76.
1116
ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 95.
388B. Deliberate Indiscriminate Shelling
1. Introduction
1215.Artillery fire was of special importance for the Croatian Army in operation Storm,
which is clear from the fact that the entire artillery mechanism of the Split Military
District was used during the operation. 1117The cities of Knin, Benkovac and Bosansko
Grahovo were shelled during the operation. Th ese cities, as well as the roads linking
them, were also shelled during operations “Skok 1” and “Skok 2”. 1118
1216.The Split Military District Attack issued th e order relating to the artillery support of
combat activity during operationStorm, which stipulated that artillery groups and artillery
rocket groups were to be established. Thesegroups were tasked with placing the towns of
Drvar, Knin, Benkovac, Obrovac and Gračac under artillery fire. However, it is possible
to see from the Order that the targets of artillery attack were not specified 1119and that
such information was also not include d as an attachment to the Order. 1120 Thus,
Benkovac, Obrovac, Gračac, Kistanje, Uzdolje, Kova čić, Plavno, Pola ča and Bukovi ć
1121
were shelled repeatedly despite havn i g no identifiable military targets.
2. The Shelling of Knin
1217.Knin, as the main city of the RSK, had a special importance for the Croatian forces. A
closer look at the Brioni transcript makes it clear why subsequently thousands of
grenades fell on Knin, as evidenced from the following exchange between President
Tudjman and General Gotovina:
“FT: There is something still missing, a nd that is the fact that in such a
situation when we undertake a general offensive in the entire area, even
greater panic will break out in Knin than has to date. Accordingly, we
1117
A.Gotovina, Offence Battles and Operations of HV and HVO (Napadni bojevi i operacije HV i HVO) ,
1118vijedništvo zbornog područja Split, Knin, 1996, p. 118.
1119Ibid.
ICTY, Gotovina et al, IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II,, p. 109; also ICTY, Gotovina et al., IT-060-90, testimony of witness Mile Sovilj, 24 April 2008,
Transcript pp. 2213–2215.
1120Ibid.
1121ICTY, Gotovina et al., IT-060-90, Prosecutor’s Pre-trial briil Version of Pre-Trial Brief, 23 March 2007,
para.31.
389 should provide for certain forces wh ich will be directly engaged in the
direction of Knin. And particularly , gentlemen, please remember how
many Croatian villages and towns have been destroyed, but that’s still
not the situation with Knin today… Therefore, we will have to resolve
that with UNCRO, this matter as well, and so forth. But their
counterattack from Knin and so forth, it would provide very good
justification for this action and accordingly, we have the pretext to strike,
if we can with artillery, you can… for complete demoralization… not
just this… (as printed).
Ante Gotovina (AG): Mr. President, at this moment we completely
control Knin with our hardware. That’s not a problem, if there is an order
to strike at Knin we will destroy it in its entirety in a few hours… That
means that we have somewher e around 1.000 good infantryman, trained
for assault operations, for quick transfers on this difficult terrain; we can
1122
easily take Knin, without any problem. “
1218.Out of thousands of grenades directed to wards Knin less then 250 hit military objects.
In the words of the General Alain Fora nd, UNCRO Sector South Commander, “since
the issue of being a poor shot was out of th e question, it seems that the civilian objects
1123
were shot on purpose” Knin was completely abandoned as early as 5 August, Friday
1124
morning, around 10 o’clock.
1219.A statement of the ICTY witness in Gotovina, Andreas Dreyer, UN Security
coordinator in Sector South, provides a ve ry good description of how the shelling of
Knin was conducted. When answering a ques tion on what areas of Knin were most
affected by shelling, he stated as follows:
“On your question was anywhere in Knin safe at the time while I was
driving around for the duration of the 4th of August, my answer to your
question would be no. What I did over here is I was really trying to be as
112Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
Officials, on 31 July 1995 at Brioni, p. 10, (emphasis added) (Annex 52).
1123Croatian Helsinki Committee for Human Rigts,ilitary Operation Storm and it’s Af,hagreb, 2001, p. 28.
1124Ibid.; see also ICTY,Gotovina et al.,IT-060-90, testimony of witness Roland Dangerfield, 24 July 2008, Transcript
p. 7151 (witness testified how Ctiforces entered Knin on 5 August without expecting any resistance).
390 specific as I could. What I should have done is I should have taken a big
pen and drawn a circle right around Knin and not specify and say: This is
the area of impact. Because that was the area of impact. Knin itself, in all
directions where I travelled, at any given time during the 4th of August,
my life and the life of my staff members were at peril”. 1125
1220.In the opinion of another ICTY witness, Jose ph Bellarose, who used to be a UN sector
engineer for the entire Sector South, the shelling of Knin wa s not directed at specific
1126
military targets but was deliberate harassment shelling. In the opinion of yet another
witness, Peter Marti, UN military observer in Sector South, the shelling of Knin took
place without a goal, was carried out randomly, and was carried out above all to
1127
intimidate the people and to force them out. Another UN witness, John William Hill,
the Commander of UN Military police (UNM POL) in Sector South, described the
shelling of Knin in the morning of 4 August as “a massive salvo of hundreds and
1128
hundreds and hundreds of rounds”, while witness Alun Roberts estimated that about
1129
200 civilian locations were hit during the shelling of Knin. Witness Andrew Lesli
similarly testified that during the morning hours of 4 August he observed explosions all
over the city of consistent nature while later the shelling became grouped across specific
1130
regions of the city. Another witness testified to the same pattern of artillery shelling
1131
during the following day. In addition to the use of mortars, the shelling was
conducted with multiple rocket launchers that were in the sole possession of Croatian
1132
forces, and other indiscriminate artillery w eapon designed for open field battle and
inappropriate for use in populated civilian areas. 1133
1125
See ICTY, Gotovina et al., IT-060-90, testimony of witness Andreas Dreyer, 16 April 2008, Transcript
11261740–1741.
See also ICTY, Gotovina et al., IT-060-90, testimony of witness Joseph Bellarose, 7 July 2008, Transcript
p. 5871.
1127See ICTY, Gotovina et al., IT-060-90, testimony of witness Peter Marti, 9 June 2008, Transcript p. 4633.
1128See ICTY, Gotovina et al., IT-060-90, testimony of witness John William Hill, 27 May 2008, Transcript
pp. 3738–3739 .
1129See ICTY, Gotovina et al., IT-060-90, testimony of witness Alun Roberts, 21 July 2008, Transcript pp. 6818,
1130ness was a member of the UN forces journalist and reporter).
See ICTY, Gotovina et al., IT-060-90, testimony of witness Andrew Lesli, 22 April 2008, Transcript
pp. 1942.
1131Ibid., pp. 1965-6; see also ICTY, Gotovina et al., IT-060-90, testimony of witness Roland Dangerfield,
24 July 2008, Transcript p. 7149.
1132See ICTY, Gotovina et al., IT-060-90, testimony of witness Jacques Morneau, 29 May 2008, Transcript
pp. 4014-4015 (witness was the Commander of Canadian Battalion in Sector South).
1133
ICTY, Gotovina et al., IT-060-90, Prosecutor’s Pre-trial brief, Pu blic Version of Pre-Trial Brief, 23 March
2007, para.31.
3911221.In the words of protected witnses “6”, apartment buildings in Kin n were struck by shells on 4
August and the pause in shelling took placeonly around noon. When he got out from the
basement he observed buildings hit by shells, houses on fire and people running between
1134
buildings. Witness Mira Grubor testified before the ICTY that a civilian vehicle that
stopped near the Knin hospital was directly h bt a bomb which killed a man and his son who
1135
just brought a pregnant woman to the hospital. Witness Joseph Bellarose testified before
1136
the ICTY Trial Chamber that there were no military targets around the Knin hospital.
1222.The effects of the indiscriminate shelling are best evidenced by the UNMO report which
stated that the Croatian army shelled th e vicinity of a UN base where wounded and
civilian refugees were taking shelter. Witn ess Mira Grubor testif ied that a convoy of
vehicles and tractors transporting people who were waiting for the shelling to stop was
1137
directly hit by a bomb in the vicinity of the UN compound. Indiscriminate shelling
close to the UN camp was more precisely described by John William Hill who, after the
shell landed close to the UN camp, saw at the intersection 6 people killed and 4 injured,
a mixture of civilian and military personnel. According to the witness, bodies were put
in black body-bags. He also received inform ation that later on, Croatian soldiers fired
1138
AKs into the dead bodies, and urinated and defecated on the bodies.
1223.According to witness Mira Grubor that testif ied before the ICTY Trial Chamber in the
Gotovinacase, on 4 August approximately 120 dead bodies were brought into the Knin
hospital along with in between 160 and 180 injru ed people. In the opinion of Ms. Grubor all
of the dead and injured peop elwere victims of shelling. 1139The testimony of Ms. Grubor was
supported by witness Andrew Lesli who describetd hat when he entered the Knin hospital on
5 August he saw “large quantities of dead, mn e, women and children, sa tcked in the hospital
corridors in a pile”.1140The witness clarified that therewere between 30 and 60 dead bodies
and around 25 patients in absolutely critical condition. 1141
1134
See ICTY, Gotovina et al., IT-060-90, testimony of witness 6, 7 April 2008, Transcript p. 882; see also
ICTY, Gotovina et al., IT-060-90, testimony of witness Alain Robert Forand, 3 June 2008, Transcript
pp. 4114–4115 (testifying that shelling was also targeted within the civilian population).
1135See ICTY, Gotovina et al., IT-060-90, testimony of witness Mira Grubor, 14 April 2008, Transcript p. 1390.
1136See ICTY,Gotovina et al.,IT-060-90, testimony of witness Joseph Bellarose, 7 July 2008, Transcript p. 5867.
1137See ICTY, Gotovina et al., IT-060-90, testimony of witness Mira Grubor, 14 April 2008, Transcript p. 1397.
1138See ICTY, Gotovina et al., IT-060-90, testimony of witness John William Hill, 27 May 2008, Transcript
11393749-3750.
1140See ICTY,Gotovina et al.,IT-060-90, testimony of witness Mira Grubor, 14 April 2008, Transcript pp. 1387–1388.
1141See ICTY,Gotovina et al.,IT-060-90, testimony of witness Andrew Lesli, 22 April 2008, Transcript p. 1967.
Ibid. p. 1968.
3921224.The importance of the early capture of Knin and the effect this had can be seen from a
report of a Croatian Army commander who wrote “[b]ecause of the fall of Knin, the troops’
adrenalin is going through the roof. We need to take advantage of euphoria and motivation
1142
of all the soldiers”. The Ministry of Defense of th e Republic of Croatia, Intelligence
Administration, on 5 August 1 995 reported that the State and military structure was
completely deprived of its leadership by th e liberation of Knin, which had a significant
1143
effect on the collapse ofmorale of the civilian p opulation and m ilitary units.
3. Indiscriminate Shelling of Other Towns
1225.Witness Jovan Dopuđ testified before the ICTY that Obrovac was heavily shelled on 4
August 1995. The witness observed shells hitti ng a café/restaurant in the center of the
town, a health clinic and a movie theater. 1144 He also confirmed that the targets of the
Croatian shelling were villages of Kruševo, Žegar, Zelengrad, Zaton, Bilišane,
Muškovići and Bogatnik. 1145
1226.Another example is the shelling of Benkovac. This was, according to the report of 134 th
Home Guard Regiment belonging to the OG Zadar (Split MD), done indiscriminately
and without any type of monitoring which is visible from the fact that the Regiment
after opening fire did not know what they were shelling and asked whether anything is
falling on Benkovac. 1146All this confirms the role th at the artillery had in operation
Storm and the fact that Drvar, Knin, Benkovac, Obrovac and Gra čac were viewed
together as targets that would be indiscriminately attacked.
1227.The village of Pola ča was also shelled on 4 August, according to witness Sava
Mirković. According to Mr. Mirkovi ć there were no military targets in Pola ča. 1147The
witness explained that he and his family le ft the village because they knew what had
happened to the Serbs who stayed in the Me dak pocket and Western Slavonia. That life
1142ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 129.
1143Ibid., p. 173.
1144
1145ICTY,Gotovina et al.,IT-060-90, testimony of witness Jovan Dopđ, 8 July 2008, Transcript pp. 5980–5981.
1146Ibid., pp. 5981, 6000-6001.
ICTY, Gotovina et al, IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 188.
1147See ICTY,Gotovina et al.,IT -060-90, testimony of witness Sava Mirv,i25 August 2008, Transcript p. 7417.
393 for Serbs was no longer possible in Croatia was proved by the fact that his mother,
Đurđija Mirković, born in 1925, who was adamant on st aying, was subsequently shot
and her body burnt by Croatian soldiers. 1148
1228.Witness Vida Ga ćeša, from Gra čac, testified before the ICTY how on 4 August her
house was damaged by a shell landing close to her house. Ms. Ga ćeša confirmed that
Gračac was ocassionaly subjected to artiler y attacks since 1993, but on 4 August 1995
1149
around 100 shells landed on the village, forcing her and her family to leave.
Similarly, witness Herman Steenbergen, deputy team leader of UNMO Team Gra čac,
testified about the shelling of Gračac on 4 August, stating that he was forced to evacuate
1150
his team due to the shelling.
C. The Exodus of Serbs
1229.The indiscriminate shelling forced the Serb ci vilians to run away from the line of fire
that was gradually moving forward, in order to save their lives.
1230.The Serbs from Sector South had already been forced to move from some areas when
Grahovo and Glamo č were captured at the end of Ju ly 1995, since their security was
1151
seriously endangered. For example, witness Peter Ma rti testified about the shelling
of Cetina prior to operation Storm, even though there were no military targets there and
1152
the only purpose was to intimidate the people and prompt them to leave.
1231.The Sector South came under attack first. C onsidering that the main towns of Knin,
Obrovac and Benkovac fell as early as 5 August, Serbs from the Sector South were
already in a column fleeing the Croatian forces on 6 August. 1153 According to the
1148
1149See ICTY,Gotovina et al.,IT-060-90, testimony of witness Sava Mirkoćv,i25 August 2008, Transcript p. 7422.
See ICTY, Gotovina et al., IT-060-90, testimony of witness Vida Gaćeša, 15 May 2008, Transcript pp. 2886
and 2898–2899.
1150See ICTY,Gotovina et al.,IT-060-90, testimony of witness Herman Steenbergen, 30 June 2008, Transcript p. 5416.
1151Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
p. 23: “The Citizens of Strmica were the first ones who went into exile, the so-called ‘tactic withdrawal’ on 27 ,
th
and 28 July 1995. There were 1300 inhabitants living in the village prior to the war. At least 8 of them were
killed in the village, and 8 were reported missing.”; see also ICTY,Gotovina et al., IT-060-90, testimony of
witness Aleksandar Tchernetsky, 19 May 2008, Transcript p. 3180 (witness was UN military observer in Sector
South and testified that Strmica was heavily shelled at the end of July 1995); see also ICTY,Gotovina et al.,
IT-060- 90, testimony of witness Mile Đurić, 12 June 2008, Transcript pp. 4841–4842.
1152See ICTY, Gotovina et al., IT-060-90, testimony of witness Peter Marti, 9 June 2008, Transcript p. 4592.
1153According to the Croatian Helsinki Committee for Human Rights report the Serb population left the UN
Sector South almost entirely until the end of Saturday, 5 August, see Croatian Helsinki Committee for Human
Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001, p. 20.
394 Croatian Helsinki Committee for Human Rights, the exodus from Benkova čko Selo,
Jagodnja Gornja, Kula Atlagić, Benkovac and other villages began on 4 August due to
1154
the fact that these villages were heavily shelled.
1232.According to UNPROFOR data up until 6 August 1991, 46,200 Serbs left Sector South,
1155
while in the period concluding with 11 August that number increased to 72,500.
1156
1233.Inhabitants of the Sector North, started to leave the area between August 6 and 8.
There were three main routes that the refugee columns took to leave Sector North. Their
direction partially changed as a result of frequent air and tank attacks of the Croatian
forces during which refugees hid in the woods , only later to return to follow the main
paths. Refugees from Vojni ć and Gvozd travelled in th e direction of Topusko-Glina-
Žirovac-Dvor. Another refug ee column took the Topusko-Glin a- Petrinja- Sisak route
and followed the Lipovac highway, continuing into Serbia. The third route taken was
1157
Slunj- Cetingrad- Banja Luka.
1234.The precise number of the Serb s that were forced to le ave Krajina during operationStormis
1158
still undetermined. Es timates put that nu mber between 180,000and 220,000 people.
1235.However, it is known how many Serbs remained in the area of Sectors South and North
– not more than 5,000. In other words, the Krajina region was completely emptied of
Serbs by operation Storm. According to the Secretary-General,
“The exodus of 200,000 Krajina Serbs fl eeing the Croatian offensive in
early August created a humanitarian crisis of major proportions. It is now
estimated that only about 3,000 Krajina Serbs remain in the former
Sector North and about 2,000 in the former Sector South…” 115.
1154Croatian Helsinki Committee for Human RighMts,ilitary Operation Storm and it’s Aft,thagreb, 2001, p. 23.
1155ICTY, Gotovina et al., IT-060-90, Prosecutor’s Pre-trial brief, Pu blic Version of Pre-Trial Brief, 23 March
2007, para. 11.
1156Croatian Helsinki Committee for Human RightMs,ilitary Operation Storm and it’s Afterma,thZagreb, 2001, p. 5.
1157Ibid. p. 214.
1158
Ibid. p. 20: “between 180.000 and 200.000”; see also NGO “Veritas”, Bilten No. 114, August 2007, Žrtve
1159je» i postoluje, pp. 5-13: “ 220.000” (Annex 62).
The situation in the occupied territories of Croatia: Report of the Secretary-General,18 October 1995, UN
Doc. A/50/648, para. 27.
3951236.The remaining Serbs were mostly elder persons who were not able to leave their homes.
They were scattered in the area which be came a virtual wasteland. According to one
source:
“The abandoned persons were found in 524 hamlets, villages and towns.
A single person remained in 73 communities, 2-5 in 155, 6-10 in 104,
and none in almost 100 settlements. The departure of the majority of
inhabitants enormously increased the proportion of elderly among the
abandoned people: 75.6 per cent we re older than 60, creating a
1160
demographic cloud of suffering” .
5. The Victims of Operation Storm
1237.Operation Storm was carried out by elite Croatian forces pursuant to a clear order of
President Tudjman that Krajina Serbs should disappear. The crimes committed against
Serbs were of such a nature and of su ch proportions that Tudjman’s order was
successfully accomplished. The exact number of persons killed is not known even
today, and this is due to a large extent to the fact that Croatian organs subsequently
restricted movement in the area by all, in cluding representatives of the international
1161
community, in an effort to conceal the crimes. As stated by the UN Special
Rapporteur:
“On 4 August 1995, the Croatian army launched a military operation,
operation ‘Storm’, throughout the former sectors North and South; it took
control of Knin in former Sector South at midday on 5 August and most
of the rest of the Sector by 7 August 1995. Severe restrictions on
movement were imposed on the United Nations and other international
personnel in Knin until 7 August, and in other parts of the Sector until as
late as 13 August. Periodic restric tions of movement were imposed
throughout August 1995. In former Sector North, where active fighting
continued well into the second week of August, severe restrictions on
116S. Lang, ‘Abandoned elderly population, a new category of people suffering in warJournal of Public
Health Medicine, Vol. 19, No. 4 (1997), pp. 476–477.
116See ICTY, Gotovina et al., IT-060-90, testimony of witness Ton Minkuielien, 15 April 2008, Transcript
p. 1501 (witness was UN military observer in Sector South).
396 movement were imposed as well. As a consequence of these limitations,
it is difficult to make an objective a ssessment of the extent of casualties
1162
and damage during the first days of operation.”
1238.Already on 11 August, General Ante Gotovina gave an order that the battlefield should
be cleaned up and that special priority should be given to the removal of human
1163 1164
bodies. A strict restriction of movement was imposed on international observers
at the time and the subsequent removal of corpses ensured that the exact number of
victims could not ever be precisely established.
1239. According to the Croatian Helsinki Committee for Human Rights, during and 100 days
after operation Storm, 677 Serbs civilians were murder ed and went missing. Out of the
677 Serbs, 410 victims were from Sector S outh while 267 victims were from Sector
1165
North. The report also noted that Serbs were killed in over 60 villages during the
1166
first week of operation Storm. However, the Croatian Helsinki Committee for
Human Rights has not dealt with military victims even though it had noted that
indications existed that a number of those victims were killed after having surrendered
1167
to Croat forces.
1240.Information offered by the non-governmental organization Veritas are somewhat
different. According to Veritas more than 1,900 Serbs were kille d as a result of
operation Storm, out of which around 1,200 civilians and 700 members of the armed
1168
forces. The main problem with establishing the real number of those killed, as
already mentioned, lies in the purposeful obstruction by the Croatian Government and
1162Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, p. 7, para. 17.
1163
ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
1164m, Part II, p. 147.
International forces on the ground included: European Community Monitoring Mission (“ECMM”), United
Nation Military Observers (“UNMO”), Human Rights Ac tion Team (“HRAT”), United Nation Civilian Police
(“UNCivPol”) and UN military police (“UNMPOL).
1165Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
p. 210; see also Humanitarian Crisis Cell Sitrep, Compilation of Human Rights Reporting, 7 August –
11 September 1995 (Annex 55)
1166Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
(Sector South list of 410 killed civ ilians, pp. 137-171; Sector North list of 76 civilians killed in columns pp.
1167230; Sector North list of 191 killed civilians pp. 236-260).
1168Croatian Helsinki Committee for Human RighMts,ilitary Operation Storm and it’s Af,thagreb, 2001, p. 135.
NGO “Veritas”, Bilten No. 114, August 2007, Žrtve «Oluje» i postoluje, pp. 5–13 (Annex 62).
397 also in a large number of unidentified victims. As it was noted by Amnesty International
after visiting Krajina three years after operation Storm:
“Driving through the Krajin a three years later the countryside retains an
abnormal air. The majority of houses have been completely destroyed by
fire or looting, and fields are overgro wn. Here and there sown fields and
laundry on the clothesline indicate life; however, most commonly the
clothes hanging on the line include military uniforms or the cars parked
in the drive bear license plates from Bosnia-Herzegovina. Apart from the
devastated property, evidence of the human rights violations is unseen.
However, town cemeteries contain row after row of closely packed
wooden crosses marked only with nu mbers and the initials ‘NN’ –
unidentified.” 1169
1241.What is known is that the killing of Serbs was mainly carried out while Serbs were
fleeing the area in columns, or while they we re in their houses, for those Serbs who did
not or could not escape fast enough.
A. Killing of Serbs while They were Escaping in Columns
1242.While escaping from their homes in columns Serbs fell victim to both Croatian military
forces and Croatian civilians along the roads they took wh ile trying to escape. While
running for their life in a completely chao tic and unorganized manner, Serbs did not
have any protection. Columns that were ha stily fleeing were under attack by artillery
shelling, bombing from the air, infantry fire and attacks by Croatian civilians. As it was
noted later by the UN:
“Fleeing civilians were subjected to various forms of harassment,
including military assaults and a ttacks by Croatian civilians. On 8
August, a refugee column was shelled between Glina and Dvor, resulting
in at least 4 dead and 10 wounded. A serious incident occurred in Sisak
on 9 August, when a Croatian mob at tacked a refugee column with
1169
Amnesty International,Croatia: Impunity for killing after Stor,mAugust 1998, p. 2, AI Index: EUR 64/04/98.
398 stones, resulting in the injury of many persons. One woman subsequently
died of her wounds. Croatian poli ce watched passively until United
Nations civilian police monitors showed up and prompted them to
intervene. The Special Rapporteur met some Krajina refugees in
Belgrade. They informed her of the tragic circumstances of their flight,
which was particularly traumatic for children, the elderly, the sick and
1170
wounded.”
1. Sectororth
1243.There were more killings while Serbs were trying to escape from Sector North probably
due to the fact that evacuation in Sector No rth started two days after that in Sector
South which gave Croatian forces more time to organize and direct the shelling at the
columns of Serbs. The fact is also that th e Croat forces at that time were able to
concentrate their forces knowing that they did not have worthy opponents and that they
could approach Serbian columns and direct fire at them without fear of military
response. Croatian Helsinki Committee for Human Rights reported:
“A great number of victims were recorded in the refugee column in the
region of Banija, which was repeatedly cut off by shelling … From some
parts of Kordun inhabita nts started to leave be tween August 6 and 8.
Thus, in this territory the greatest number of persons injured in a refugee
column was recorded. Between August 6 and 9 1995 the column was the
target of airplanes and tanks, as we ll as attacks from some individuals
from the Croatian Army and the Fift h Corps of BH Army. These attacks
killed and wounded great number of persons and individual executions of
civilians moving in the columns were also carried out.” 1171
117Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, p. 7, para. 18; see
also Report of the Secretary-General submitted pursuant to Security Council Resolution 1009 (1995), 23 August
1995, UN Doc. S/1995/730, para. 6; see also Human Rights Watch Report, Impunity for abuses committed
during Operation Storm, and the denial of the right of refugees to return to the Krajina , August 1996, Vol. 8,
No. 13 (D), p. 10, available at: http://www.hrw.org/legacy/reports/1996/Croatia.htm.
117Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
pp. 215-216; see also Humanitarian Crisis Cell Sitrep , Compilation of Human Rights Reporting, 7 August –
11 September 1995 (Annex 55).
3991244.The report notes in more detail that Serb re fugees from Sector North evacuated in the
direction of Topusko-Glina-Žirovac-Dvor, fr om where the column entered BIH. This
column suffered the greatest hardship in the Topusko-Dvor section of the route, especially
in the town of Maja and Žirovac. On that part of the road, in the period between August 6
and 9 1995, a large number of refugees we re indiscriminately targeted. The column,
which was cut off several times, was caught incross-fire and became the target of attacks
from Croatian airplanes. The report further notes that from the evening of August 6 until
1172
August 9, the column was shelledseveral times by the Croatian army.
1245.The Croatian Helsinki Committee for Human Ri ghts reported that another column also
took the Topusko-Glina-Petrinja-Sisak r oute and followed the Lipovac highway,
continuing into Serbia. The column was stoned in Sisak, at which time a great number
1173
of refugees sustained serious injuries.
1246.Finally the third route taken was Slunj- Cetingrad- Banja Luka. The refugees moving in
this direction were also the targets of airplane attacks. Civilian victims were recorded,
1174
although fewer that at Žirovac.
1247.Even today there is no reliable informati on about the number of Serbs killed in the
1175
columns. The non-governmental organization from Belgrade, the Humanitarian Law
1176
Center, estimates that there were about 300 Serbs killed in the columns.
a) Glina
1248.According to the statement of A.G, interviewed by Croatian Helsinki Committee, a
woman from the column whose name was Zora was shot by Croatian soldiers near the
1177
hospital in Glina. Other witnesses also confirmed seeing dead bodies near Glina.
One of the statements from the Croatian Helsinki Committee for Human Rights report
1172For more details see infra under b) Žirovac, para. 1249 and c) Maja, para. 1250.
1173Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
p. 214.
1174Ibid. p. 214.
1175E.g., Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb,
1176, pp. 223-230 (reports about 76 Serbs victims).
Humanitarian Law Centre, http://www.hlc-rdc.org/O_nama/FHP-u-medijima/1163.sr.html, last accessed
1177tober 2009.
Croatian Helsinki Committee for Human RighMts,ilitary Operation Storm and it’s Af,thagreb, 2001, p. 219.
400 notes: “We were mistreated from the time we left Glina until we crossed the border. We
1178
were hit by stones. We mostly saw dead bodies in Glina”. According to the
statement of A.N, from Vojnić, also interviewed by Croatian Helsinki Committee:
“We took the road on August 6, 1995 at 2:00. We arrived in Topusko and
then continued to Glina…In front of us, the column was assaulted from
the right side. This was a Muslim area, they were firing at us. There was
panic people dispersed and hid. Dead bodies were strewn all over the
road and on the sides. I saw about 20 dead people” 1179
b) Žirovac
1249.Many Serbs gave testimonies about the horrors they survived while they were trying to
save their lives. Those testimonies can be found in the Croatian Helsinki Committee for
1180
Human Rights report and the Human Rights Watch report. However, the gravity of
the crimes survived by Serbs deserves to be at least described by way of citing small
parts of witness testimonies. In his statemen t given to the Croatian Helsinki Committee
A.A, from Krnjak describes the shelling of a part of a column in which he was present:
“I went across the bridge over th e river Una for Bosanski Novi on
Tuesday August 8, 1995. We were all moving somehow o.k. in the
column until Glina. We were moving in two columns, one after the other.
When we reached Žirovac, we were shelled. People were killed, there
was crying, people were trying to run. Many were leaving their tractors,
throwing their bundles away, a nd running. Women were dragging
children. I saw in Dvor, a dead ma n in one red ‘Yugo’ car. We were
actually cut off by the Croatian Army. I ran into bushes and continued on
my own. I walked all the way from Dvor to Novi. There was heavy
shelling. I crawled almost all the wa y. I crossed the bridge crawling on
1181
my stomach”.
1178
1179Ibid., p. 221.
1180Ibid., p. 222.
Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
p.216-222; see also Human Rights Watch Report Impunity for abuses committed during Operation Storm, and
the denial of the right of refugees to return to the Krajina , August 1996, Vol.8, No.13 (D), p. 11 available at:
http://www.hrw.org/legacy/reports/1996/Croatia.htm
118Croatian Helsinki Committee for Human Rights,ilitary Operation Storm and it’s A,thagreb, 2001, p. 216.
401 According to the statement given to the Cr oatian Helsinki Committee by A.E, who was
also present near Žirovac when unarmed civilians were shelled:
“I was in the column which was sto pped at Žirovac, on the way to Dvor.
Soldiers and tanks started to fire at the column. People started to run
away, and those who did not succee d fleeing were killed. Tanks were
1182
driven over the dead bodies scattered on the road….”
Finally, the Croatian Helsinki Committee for Human Rights report cites statement of
A.J. from Gvozd who testified that a column of refugees upon arriving in Žirovac found
the dead lying on the road and that they were fired at from all sides. In his statement A.J.
also stated that the column was bombed from planes and describes the attack “… people
were leaving their cars behi nd and running. We were attack ed by airplanes, there was
1183
firing. Shells were falling all around and onto us….”
c) Maja
1250.According to numerous statements compiled byCroatian Helsinki Committee the attack on
the column by the Croatian airplanes at Žiro avc, was not an isolatedevent but was obviously
part of a plan. In his statement A.H, from Gvozd testified about the attack at Maja:
“We took to the road on August 6, around 1:30 p.m. We were going in
the direction of Gvozd-Glina-Maja-Dvoborn. On the same day, at sunset,
the column had been cut off at Maja. Airplanes were making circles,
people were falling and running to the woods. A grenade fell in front of
us. We laid down, some 20 of us, and then we were hit by a grenade.
This is when Miljka Radovanovi ć was hit. When I rose to my feet, a
1184
fragment shell hit me in the throat and in the hand…”
1251.Some of the statements cited by the CroatianHelsinki Committee for Human Rights report
provided further evidence about the shelling orfefugees and the victims on the road between
1185
the Glina and Dvor. Witness of this partu icar attack saw four dead and 10 wounded.
1182Ibid. p. 217.
1183Ibid., p. 220.
1184Ibid.
1185Ibid., p. 219; see also Human Rights Watch Report, Impunity for abuses committed during Operation Storm,
and the denial of the right of refugees to return to the Kra, August 1996, Vol. 8, No. 13 (D), pp. 13–14,
available at: http://www.hrw.org/legacy/reports/1996/Croatia.htm.
402d) Cetingrad
1252.The refugees that escaped from Slunj and headed in the direction of Cetingrad-Banja
Luka on 5 August were also shelled accordin g to the witness A.F. from Slunj. This
witness stated that the column was shel led while they were near Cetingrad. He
personally saw at that time that one woman was killed while other persons were injured,
among which the mother of the witness’s husband. 1186
1253.Unfortunately, the Serbs were not spared even when they managed to cross the border
and enter into the Republic of Srpska. The f act that the Croatian air force bombed Serb
columns even in the territory of the Republic of Srpska demonstrates how persistent
Croat forces were in the pursuit of their criminal intention. 1187
2. Sector South
1254.It should be noted that evenhtough the majority of Croatian atc tks targeted columns of Serbs
escaping from Sector North, columns from Seco tr South were in no way spared. Witnesses
from Sector South described that in addition tobeing shelled, Serbs from the columns were
also shot at by Croatian soldiers. According to the statement of Savka Hinić compiled by
Croatian Helsinki Committee when sh e and her son Marinko and step-son Srđan arrived in
Vrhovine two soldiers approached themna d shot her son without any explanation. 1188
1255.According to survivors statements cited in Human Rigths Watch (HRW) report Croatian air
forces directly targeted the column of Serb civilians. Most of those accounts deal with the
shelling close to Petrovac on the territory of Bosnia and Herzegovina. According to HRW
report and survivors of the attack the column ws ahit with four bombs,one of them directly
hitting a civilian vehicle that wsamoving within the column. Two trucks were also directly hit
1189
and were burning, according to the HRW report. Witness 56 testified before the ICTY
about this shelling and co nfirmed that several civliian cars were hit inaddition totwo trucks
that were burning. 1190
1186Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
118718, witness A.F.
Human Rights Watch Report, Impunity for abuses committed during Operation Storm, and the denial of the
right of refugees to return to the Krajina , August 1996, Vol. 8, No. 13 (D), p. 11, available at:
1188://www.hrw.org/legacy/reports/1996/Croatia.htm
1189Croatian Helsinki Committee for Human Rights,ilitary Operation Storm and it’s Af,thagreb, 2001, p. 51.
Human Rights Watch Report, Impunity for abuses committed during Operation Storm, and the denial of the
right of refugees to return to the Krajina , August 1996, Vol. 8, No. 13 (D), pp. 11-12, available at:
http://www.hrw.org/legacy/reports/1996/Croatia.htm.
1190See ICTY,Gotovina et al.,IT-060-90, testimony of witness 56, 23 May 2008, Transcript p. 3546 (witness saw two
civilian trucks and several cars that were hit by bombs ornotahde15 kilometers from Petrovac in the direction to Bravsko).
4031256.According to the HRW report based on the witness statements in this incident at least
1191
five persons were killed while 15 were wounded.
th
1257.An entry of the 4 Guards Brigade Operative Logbook for 7 August 1995 shows that a
column near Petrovac was also shelled fr om the area of Sector South. The entry
indicates that artillery fire was used agains t a SVK column in order to kill Serbs that
were retreating. The Logbook notes “our artil lery was hitting the column pulling from
Petrovac to Grahovo, the score is excelle nt, the Chetniks have many dead and
wounded…” 1192
B. Killing of Serbs that stayed in the UNPA sectors
1258.As previously shown, a very small number of Serbs stayed in UNPA sectors. However,
despite the fact that elderly and disabled made up approximately 75% of the remaining
1193
population they were still systematically targeted by Croatian forces. The killing of
remaining Serbs was perpetrated immediately after Croatian forces entered Serb villages
as well as after operation Storm was formally finished. Victims were both Serbian
1194
soldiers that surrendered to Croatian forces and Serb civilians. The fates of many
Serbs remain unknown because Croatian forces obstructed any UN investigations. The
Special Rapporteur Elisabeth Rehn reported:
“Field staff of the Centre for Human Rights received numerous reports of
killings taking place in former sect ors South and North both while the
military operation was ongoing, without any military justification, and
after the Croatian army had assumed control of the region. More than
120 bodies have been discovered by the United Nations and reports of
1191Human Rights Watch Report, Impunity for abuses committed during Operation Storm, and the denial of the
right of refugees to return to the Krajina, August 1996, Vol. 8, No. 13 (D), pp. 11–12, available at:
http://www.hrw.org/legacy/reports/1996/Croatia.htm.
1192ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 189.
1193Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, p. 7; see also
ECMM, 100 Days after Operation “Storm” in the former “Serb Krajina”, Comprehensive Survey Report on the
1194t Hundred Days of Croatian Rule in UN Sector South, dated 21 November 1995 p. 8, (Annex 60).
Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
p. 135; see also ICTY, Gotovina et al., IT-060-90, testimony of witness Vladimir Gojanovi ć, 15 May 2008,
Transcript p. 2944 (witness testified about killing of a SVK soldier who surrender, unidentified location).
404 killings have been especially numerous in the Knin area. According to
information received, a common murder method was shots in the back of
the head.” 1195
Similarly Croatian Helsinki Committee for Human Rights reported:
“Some hamlets in the surrounding area of Podinarje were impossible to
reach. The residents ofthese hamlets left the areaon time, onlya few elderly
people remained to live there. Two old women re mained to live in one
house there, and one man from Knin, who took part in military operation
‘Storm’, visited them seve ral days in the row, brought them food and helped
them. One morning hefound them with ther i throatscut open.” 1196
1259.According to evidence gather ed by the non-governmental organization “Veritas”, the
majority of killings were committed in August 1995 but the killings did not stop and
1197
continued throughout 1995.
1260.In light of the foregoing difficulties the Resp ondent will nevertheless try to provide a
short overview of the killings committed in Sectors South and North. In doing so, unlike
the Applicant in the Memorial, Respondent wi ll use information and facts from official
international bodies and sources originating from Croatian organizations.
1. Sector South
a) Knin
1261.The city of Knin, the center of Serbian life not only in Sector South but also in Krajina,
and the Serb civilians living in it were not only targeted by indiscriminate shelling but
were shot by Croatian forces upon entering th e city. Again the real number of those
killed is difficult to establish consideri ng that the Serbs were buried under serial
119Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, p. 9, para. 24.
119Croatian Helsinki Committee for Human Rights,ilitary Operation Storm and it’s AftZagreb, 2001, p. 46.
119NGO “Veritas”, Bilten No. 114, August 2007, Žrtve «Oluje» i postoluje, pp. 5–13 (Annex 62).
405 numbers. The report of the Croatian Helsinki Committee for Human Rights lists names
of 13 persons killed but the report also gives information about other crimes perpetrated
1198
in Knin. Those crimes were committed on 5 August when the Croatian forces
entered the town of Knin.
1262.As already noted, it is symptomatic that the UN was allowed entry into the city only after the
streets were cleaned and bodies removed. However, witness statements are of assistance in
reaching a conclusion about the magnitude of the killings perpetrated by Croatian forces
which they were only successful in partially hiding from International observers. Witness
Andrew Lesli testified before the ICTY Trial Chamber about his voyage from the UN
barracks to the Knin hospital on 5 August. He d scribed the damage inlficted on the city and
how he saw dead bodies along the way, approximately 15 to 20 dead people. 1200Witness
Andreas Dreyer similarly testified that while driving through Knin he observed tens of dead
civilians killed at close range. Witness described that hesaw old men being shot at close
range, a man who was shot through his head w ho was later found in a sh allow grave, several
bodies of victims stripped of their clothes and who were also shot at close range. 1201 Similar
description of the destruction was given by thc ehief engineer of UN in Sector South, Joseph
Bellarose, who described observing a great deal of devastat ion everywhere he looked,
numerous dead civilians lying in thsetreets and buildings and cars on fire. 1202
1263.According to the testimonies of Lesli a nd Hill, UN observers were prevented from
leaving their camp from 5 until 9 August 1995. 1203Witness John William Hill further
added that he talked to some Croatian soldiers in front of the UN camp who told him
that “they were going to kill all the Serbs”. 1204
1198Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
p. 152 (on 4th August UN registered 15 unidentified bodies of men, women and children on the main road in
Knin; on the entry to Knin 5 unidentified dead bodies between 30 and 70 years old, were found; six men on
tractor that were comming from Kosovo to Knin to surrendered were killed...; on Sunday, 6 August 1995, around
11990 a truck was carrying a group of dead bodies...) .
1200Croatian Helsinki Committee for Human RighMts,ilitary Operation Storm and it’s Aft,thagreb, 2001, p. 37.
See ICTY,Gotovina et al.,IT-060-90, testimony of witness Andrew Lesli, 22 April 2008, Transcript p. 1967; see
also ICTY, Gotovina et al.,IT-060-90, testimony of witness Roland Dangerfield, 24 July 2008, Transcript p. 7233
(witness testified that Canadian soldierskp dead bodies and took them to Knin mortuary).
1201See ICTY, Gotovina et al., IT-060-90, testimony of witness Andreas Dreyer, 17 April 2008, Transcript
pp. 1739-1740; see also ICTY, Gotovina et al., IT-060-90, testimony of witness John William Hill, 28 May
2008, Transcript pp. 3770–3771 (witness testified about two bodies found in the vicinity of Knin, “on the hill as
you leave Knin” that were shot in the head).
1202
1203See ICTY,Gotovina et al.,IT-060-90, testimony of witness Josephllearose, 7 July 2008, Transcript p. 5867.
See ibid., testimony of witness Andrew Lesli, 22 April 2008, Transcript p. 1973; see also ibid., testimony of
1204ess John William Hill, 27 May 2008, Transcript p. 3750.
See ibid., testimony of witness John William Hill, 27 May 2008, Transcript p. 3751.
4061264.Protected witness “69” testified before the ICTY that once Croatian forces entered Knin
one of the soldiers took his 81-year-old ne ighbor Dmitar behind the house, that shots
were heard - his neighbor’s body was found a w eek later along with some other bodies
1205
of killed Serbs. The Croatian Helsinki Committee for Human Rights report provides
statements which describe the killings of Serbs who stayed behind, committed by
Croatian soldiers or police. According to the statement of K.Š., interviewed by Croatian
Helsinki Committee, he saw two executions and the police vehicle took part in the latter
one: “A vehicle turned to my house. I did not see anything, but I heard. They shouted
and screamed: Open up, Open up, the doors opened and the voice was heard. And what?
1206
And afterwards I hear 5-6 gun shots.” K.Š. testified about other executions
committed in Knin: “I saw a group of 5-6 pe rsons in the masque uniform who stood on
the upper side of the road. I saw two men standing, and a few persons kneeled before
them. There was one woman among them. They were killed by shots into back of their
head…” 1207
1265.International observers discovered the bodies of Serbian civi lians that were executed in
their homes in Knin after Croatian forces had taken over the city. Witness Edward
Flynn, leader of the UN HRAT human right acti on team in Sector So uth, testified that
not far from the center of Knin on 12 Augus t together with his UN colleagues he saw
the bodies of two older men that had been shot in the head. 1208
1266.In the village of Golubić, 10 Serbian villagers did not want to flee with the column and
returned to their village. While returning they stopped in the village of Radljevac to buy
some fuel. They were found by Croatian soldiers who opened fire without any
explanation which killed 7 Se rbs while only two managed to escape. The killed Serbs
were Mara Mari ć (1930), Petar Mari ć (1930), Djuka Damjanovi ć (1930), Dušan
Damjanović (1930), Milica Vukovi ć (1925), Tanasije Vukovi ć (1927) and Boško
1209
Vuković (1938). On the same day Jovan Markelić (born in 1937) was also killed.
1205See ibid., testimony of witness 69, 13 May 2008, Transcript pp. 2705–2706.
1206Croatian Helsinki Committee for Human RighMts,ilitary Operation Storm and it’s Af,thagreb, 2001, p. 37.
1207
1208Ibid.
See ICTY,Gotovina et al.,IT-060-90, testimony of witness Edward Flynn, 11 April 2008, Transcript p. 1328; see
alsoibid., testimony of witness Aleksandar Tchernetsky, 19 May 2008, Transcript p. 3188 (witness Tchernetsky testified
about discovering of two bodies on 12 August 19atwere later identified as Mila i Ilija Mil.iojće)v
120Croatian Helsinki Committee for Human RighMts,ilitary Operation Storm and it’s Aft,hagreb, 2001, p. 53.
4071267.Other Serbs living in the same village of Golubi ć were killed on the same day when 14
1210
Serb civilians were also systematically killed. In the village of Golubić there were at
1211
least 21 Serbian victims.
1268.The Croatian Helsinki Committee for Human Rights reports the postmortem desecration
of Serb bodies:
“Nikola Panić, born 1935, disabled, killed on August 6, 1995 in Golubi ć.
His head was found 50 meters away from the murder spot. Allegedly
soldiers played football with his he ad. A corpse of Marija Banjanin, 89
years old from Gra čac, was found with a head cut off. The head was
found without eyes. NN(f), around 74 years, was found tied with a
fishing net. The automobile tyre was found around her neck, which
seemed burned. In the vicinity of Golubić, UN registered a dead man and
1212
women. The man’s nose and ears were cut off.”
1269.In the village of Uzdolje only one day later, on 7 August, seven Serbs were killed (born
between 1920 and 1931). The Croatian Helsinki Committee for Human Rights provided
details of their death: “the residents were gathered on a small path, forced to sit down
1213
and killed from a distance. One potential victim survived but was wounded”.
1270.In Strmica, the SVK left on 28 July 1995 but a number of older Serbs unfortunately
stayed behind. The Croatian army killed 15 Serbs, among whom two sisters Andja and
Draginja Dragaš were 65 years old, sick and immobile. They were burned in their house
1214
at the end of August 1991.
1271.In the village of Oton, at least 8 Serbs were killed out of whom a majority was older
1215
than 70 years.
1210Ibid., p. 54, (people killed on 6th August Đuro Jerković, Jovan Jerković, Vaso Vasić, Nikola Panić, Branko
Radinović, Maša Radujko, Vaso Radujko, Toda Mari ć; killed latter during August Glišo Čanak, Milka Grubić,
Zorka Kablar, Milica Šljivar and Jelka Opačić).
1211Ibid., pp. 148-149.
1212Ibid., p. 47.
1213
1214Ibid., p. 54.
1215Ibid., p. 38.
Ibid., p. 40; also ICTY, Gotovina et al., IT-060-90, testimony of witness Jovan Vujinovic, 9 June 2008,
Transcript pp. 4558 and 4562 (witness testifies about finding a body of a civilian Stevo Vujnovic).
4081272.The same fate awaited Serbs who dared to stay in the village of Vrbnik in which at least
9 Serbs were killed. One of those Serbs was Savo Vukmirovi ć, 73 years old and
immobile, who was burned in his house while Croatian forces were burning the rest of
the houses in village. Vukmirovi ć’s children’s later found th e burned house and some
burned bones. 1216
1273.The Croatian army captured the village of Mokro Polje on 5 August. By September 28,
the remaining 7 Serbs in the village were killed. One of the survivors stated:
“I lied down very tiredand exhausted.Suddenly I heard shot s. I thought that
the army was killing chicken. But I ha erd my mother scr eams. When I heard
that a Croatian soldier scream: I kill ed one more, we have to burn him
before the monitors arrive , and throughthe window I saw officers shouting:
Do not shoot any more, orI kill you. I finally und erstood that something was
happening, I went down thestairs and saw my brothe r killed and my mother
choking from the wound on the throat. I raised her and she showed me to
run away, and asked for water. Soon she passed away…” 1217
1274. Croatian forces entered the village of Pl avno on 6 August. The same day 13 Serbian
villagers were killed. Croatian Helsinki Committee for Human Rights report gives an
account of the event: “The group of soldiers spread all over the village. They shot,
without any warning or discussion, everything that moved through the village. Thirteen
1218
elderly people were killed that day, mostly in their yards and gardens.”
1275.Witness Mile Đurić testified before the ICTY how Croatian army entered the hamlet
Đurići in the village of Plavno on the 6 August 1995. He observed how Croatian
soldiers in camouflage uniforms burned houses and how they threw his father inside the
burning workshop and locked the door. 1219
1216
1217Croatian Helsinki Committee for Human Rights,ilitary Operation Storm and it’s A,thagreb, 2001, p. 40.
1218Ibid., p. 41.
Ibid., p. 43; see also ICTY, Gotovina et al., IT-060-90, testimony of witness Aleksandar Tchernetsky, 20
May 2008, Transcript p. 3209 (witness testifies about finding a body of man who was shot together with several
sheep and a dog during the mop-up action in Plavno).
1219See ICTY, Gotovina et al., IT-060-90, testimony of witness Mile Đurić, 12 June 2008, Transcript p. 4841;
see also ibid., testimony of witness Milica Đurić, 29 October 2008, Transcript pp. 10775–10776.
4091276.Serbs that stayed in the village of Žagrovi ć were also systematically killed. Sixteen
Serbs that stayed in the village were k illed. Croatian Helsinki Committee for Human
Rights provides details about the killing of a number of Serbs in Žagrović:
“Two bodies were thrown in the d itch besides the road. Both were
dressed in their underwear only, and one had his slipper on. A right fist
of one of them was mutilated, and several fingers were cut off. Both men
had bullet hole in their backs.” 1220
1277.Serb Ana Barišić, 90 years old, was killed while Sava Bariši ć, 68 years old, and Stana
Kurbasa, 75 years old, disappeared from the village of Cetina. 1221
1278.In the village of Ivoševci, according to Cr oatian Helsinki Committee for Human Rights
report, 14 Serbs were killed and 10 were missing. 1222
1279.Killings were committed in all other places werS eerbs stayed behind. In the village of Poč la
at least 5 Serbs were killed 1223 and in the vi llage of Orlić two Serbian inhabitants were
killed.224 Serbs were killed in the villages of Biovi čino Selo, Čučevo, Đurske, Ervenik,
Kakanj, Kistanja, Kovč aići, Očestovo, Padjane, Ridjane, Rudele, Smdrelji and č Zeevo.225
1280.In some of these villages Serbs who were captured were subsequently killed by Croatian
forces. Witness Marija Večerina, from Obrovac, testified before the ICTY how Croatian
forces shot the car she was in with seven other persons. The witness’s son was wounded
as well as several other passengers. The w itness described how the masked soldiers
cursed and insulted them, told them they would kill them and took their money from
their pockets. 1226 Passengers from the car were taken to a basement in a house nearby,
and the next morning three young men from the car and two others that were already in
1227
the basement were taken out. Several minutes later the w itness heard a burst of gun
1220
Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
122145–47.
Ibid., p. 45.
1222Ibid., pp .45, 150-151.
1223Ibid., p. 46 & 156.
1224Ibid., p. 47.
1225Ibid., pp. 136-165, list of killed in Sector South; in relation to village Kakanj see ICTGotovina et al.,
1226060-90, testimony of witness Mirko Ognjenović, 16 October 2008, Transcript pp. 10710-10711.
1227See ICTY,Gotovina et al.,IT-060-90, testimony of witness Marija Včerina, 17 July 2008, Transcript p. 6721.
See ibid., p. 6717.
410 fire. Ms. Večerina identified five young boys including her son by name and all of them
were later exhumed in the Knin cemetery while the cause of death of four of them was a
1228
gunshot injury to the head and for one a gunshot wound to the neck.
1281.As previously stated, the systematic k illing of Serbs continued after operation Storm
was over. On 25 August the following Serbs were killed in the village of Grubori: Jovan
Grubor (73 years old), Jovo Grubor (65 years old), Marija Grubor (90 years old), Milica
Grubor, Miloš Grubor (80 years old), Đuro Karanović (45 years old). By the end of the
month Petar Vidović (55 years old) and Stevan Vidovi ć (50 years old) were also killed
in Grubori. Alan Roberts described what happened in the village:
“When we returned to the village that night they showed us bodies of the
people. One belonged to an older man (Miloš Grubor, born in 1915) in
the room of the house, which was partly burned. He had pyjamas on and
lay in the pool of blood near the bed. He was shot behind the ears, and
the bullet passed through his throat. A little bit further away, there was
another body in the room. We c ould not see the person (Jovo Grubor,
born in 1930). The man told us that he brought the body that afternoon
when we were away. When we tu rned the body over, the sight was
horrible. His throat was cut in two pieces.” 1229
1282.Two days after the killings in the village Grubori, the village of Gošići was also a place
1230
of massacre of Serbs. Croatian forces killed 7 Serbs and destroyed their houses.
1283.On or about 28 September 1995, at least nine Serbs were executed in the village of
Varivode (in former Sector South). The ni ne victims were betw een sixty-five and
eighty-four years of age. The victims' bodi es were apparently removed from the scene
1228Seeibid., p. 6723 (witness named her son Stevo, Mile Gnjatoćv,iStevo Baljak,Đuro Mačak and Momčilo Tišma).
1229
Alun Roberts, the UN spookeperson, in Voice of America, 11 September 1995 (taken from Croatian Helsinki
Committee for Human Rights, Military Operation Storm and it’s Aftermath , Zagreb, 2001, p. 54); see also
ICTY, Gotovina et al., IT-060-90, testimony of witness Alun Roberts, 21 July 2008, Transcript 6861, 6920 ; see
also ICTY, Gotovina et al., IT-060-90, testimony of witness Edward Flynn, 9 April 2008, Transcript 1060
(witness testified that he and his team saw 10 bodies in Grubori); see also ICGotovina et al., IT-060-90,
testimony of witness Roland Dangerfield, 25 July 2008, Transcript 7292 (witness testified that when they entered
Grubori they discovered that Croats had come, burnedthe village and slaughtered the men and livestock).
1230Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
pp. 54 & 149 people killed on 27 August: Dušan Borak, Grozdana Borak, Kosara Borak, Marija Borak, Milan
Borak, Vasilj Borak and Savo Borak.
411 of the crime and buried in the Knin cemet ery, where UN monitors found nine freshly
dug graves. Bullet holes, blood stains and ot her physical evidence were also found in
the homes of the victims by UN monitors. 1231
b) Benkovac
1284.Serbs who stayed behind were also systematically killed in the villages belonging to
Benkovac municipality. In the village of Kakma,which is close to the city of Benkovac, a
75 year old Serb was last seen in the afte rnoon of August 9 when he was arrested by
1232
Croatian police. Later that day he was killed while his body disappeared the next day.
1285.Two Serbian women were killed in the village of Brgud. They were 65 and 70 years old
and were killed behind their house. One of them was buried while the body of the other
disappeared. 1233 According to the same source, the Serb s were also killed in villages of
Biljane Donje, Biljane Gornje, Dobr opoljci, Jagodnja Gornja, Kula Atlagi ća, Ostrvica,
Plastovo. 1234
c) Donji Lapac
1286.According to information gathered by th e Croatian Helsinki Committee for Human
1235
Rights, in the Donji Lapac muni cipality 38 Serbs were killed. One of the Serbs,
Milutin Medić, 78 years old, was last seen on Croa tian television gi ving an interview
that he is safe. It is cruelly ironic that he was killed within the next few days and buried
in the backyard of his house. 1236
1287.Simo Bursać, born in 1911, was killed and buried in his backyard in the village of Lička
Kaldrma, while his house was burned to the ground. 1237 Croatian forces killed two other
persons in that village. 1238
1231Human Rights Watch, Croatia: Impunity For Abuses Committed During “Operation Storm” and the Denial
of the Right of Refugees to Return to the Krajina , 1996, Vol. 8, No. 13 (D), available at
http://www.hrw.org/legacy/reports/1996/Croatia.htm#P332_81851; see also ICTY, Gotovina et al., IT.060-90,
testimony of witness Vladimir Gojanović, 15 May 2008, Transcript p. 2977.
1232Croatian Helsinki Committee for Human RighM ts,ilitary Operation Storm and it’s Aft,hagreb, 2001, p. 35.
1233Ibid.
1234Ibid., pp. 137–138.
1235Ibid., pp. 137–141.
1236
1237Ibid., pp. 138–141.
Ibid.
4121288.Croatian forces entered the village of Oravac on 7 Augus t. Upon entering the village
they imprisoned 5 Serbs, among them Ruža and Rade Bibi ć, 75 and 76-years-old Serbs.
During the afternoon, Serbs were taken to the execution s ite from which only one
person managed to escape. 1239
1289.In the village of Srb, seven Serbs were killed. 1240There is however no precise
information 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 Begluci,
Birovača, Brezovac Dobroselski, Brotinja, Dobašnica, Dobroselo, Doljani, Donji Lapac,
Gornji Lapac, Kunovac, Kupirovo, Lapa čka Korita, Obljaj, Opa čića Dolina,
1241
Mišljenovac and Toškovac Lički.
d) Gračac
1290.In the municipality of Gra čac, Serbs were also systematicaly killed. In the village of
Zrmanja 7 older Serbs were killed in August and September 1991 under unknown
1242
circumstances. In October, two Serbs, Milan Mar četić and Dušan Šujica were also
1243
killed. The account of the killing of Milan Marčetić was to a certain extent explained
by UN official Peter Marti who testified befo re the ICTY that he was very surprised
when he saw Milan Mar četić as a Serb still alive and that Marčetić explained him that
he was never in the army. However, Mr. Mart i’s fears turned out to be justified when
1244
Marčetić was killed soon afterwards.
1291.During August, 13 Serbs were killed in the village of Kijani. 1245 Djuro Mandić, 81 years
old, was killed in the village of Tomingaj, and his body was found by his daughter who
was allowed to enter the village. 1246
1238Ibid.
1239Ibid.
1240
Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
1241138–141.
Ibid.
1242Ibid., pp. 146–147.
1243Ibid., p. 37.
1244See ICTY, Gotovina et al., IT-060-90, testimony of witness Peter Marti, 9 June 2008, Transcript p. 4628.
1245Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
pp. 144–146 (Dane Bolta, Sava Bolta, Branko Jela ča, Marija Jelača, Milica Jelača, Ana Jelača, Smilja Jela ča,
Dušan Kesić, mileva Konudžić, Danica Sovilj, Mara Sovilj, Mira Sovilj , Rade Sovilj, Vlado Sovilj); see also
4131292.The killing of Serbs was recorded in other villages of the Gra čac municipality such as
the villages of Bruvno, Deringaj, Gračac, Ivanići, Kik, Mazin, Nadvrelo, Otrić, Palanka,
1247
Prljevo, Rastičevo and Rudopolje.
g) Korenica
1293.According to the Croatian Helsinki Committee for Human Rights re port, 31 Serbs were
killed in the muni cipality of Korenica. 1248 One of the Serbs, Zd ravko Sovilj, asked for
UNCRO protection. According to the informatio n of the Croatian Helsinki Committee for
Human Rights, Croatian soldie rs asked the UNCRO to: “givehim up only for a short time –
to ask for some info rmation” which was th e last time Zdravko So vilj was ever seen. 1249
1294.Other Serbs were also killed in the vicin ity of the UNPROFOR base. According to one
source:
“The Officer of the Czech battalion of the UNPROFOR forces, situated
in Korenica informed me that on Sunday, August 5, 1995, they had seen
21 Serb civilian running along the base of the Czech battalion from
Croatian soldiers. Later on Czech soldiers heard awful screams and shots.
Maybe it is only a coincidence but th e numbers on the nearby graves are
compatible to the numbers of 21 Serb civilian.” 1250
1295.Croatian forces entered the village of Komć i on 12 August. In this village, like other Serb
villages, only a few Serbs remained. Upon en tering it, Croatian forc es killed Marija
Ugarković, Sava Lavrnić (93 years old) and his son Petar Lavrni ć (60 years old), Stanka
Čurčić (45 years old), Milka Pav lica (89 years old), Mika Su najko (75 years old), Rada
Sunajko (88 years old), Mara Mirkoć viand Rade Mirkovć i on 12 August 1995. 1251
ICTY, Gotovina et al., IT-060-90, testimony of witness Mile Sovilj, 24 April 2008, Transcript p. 2221 (witness
testified about disappearance of his father).
1246Croatian Helsinki Committee for Human RighMts,ilitary Operation Storm and it’s Af,thagreb, 2001, p. 36.
1247Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
pp. 144–147.
1248
1249Ibid. p. 49.
1250Ibid. p. 57.
Robert Fisk, ‘Independente’ (taken from Croatian Helsinki Committee for Human Rights, Military
Operation Storm and it’s Aftermath, Zagreb, 2001, p. 57).
1251Croatian Helsinki Committee for Human RighMts,ilitary Operation Storm and it’s Af,thagreb, 2001, p. 49.
4141296.As in the case of other municipalities, Serbs ths attayed behind were systematically killed also
1252
in other places of the Korenica mun ciipality, such as Arapov Dol, Frkaš ći, Pećani, Jošani,
1253
Kapela Korenč ika, Ličko Petrovo Selo, Mutil čii, Novo Selo, Udbina, Visč aand Vrelo.
h) Otočac
1297.During the operation Storm in Doljani, 12 older Serbs were killed, six men and six
1254
women. In the village of Zalužnice, eight Serbs were killed during August. Two of
1255
these eight were Marica and Žarko Popović, both of whom were elderly and ill.
1256
1298.Croatian soldiers also killed Serbs in the villages of Dabar and Škare.
(a) Remaining municipalities in Sector South
1299.Serbs that stayed in their houses located in S ector South were also systematically killed
in other places. Those places are: in the Dr niš municipality, in the villages of Bio čić,
1257
Bobodol, Cerovac, Drniš, Kadina Glavica, Miočić, Parčić, Trifunovići and Žitnić; in
the Gospić municipality, in the villag es of Barlete, Medak, Mogori ć, Ostrvica, Papuća,
Pavlovac Vrebački, Plača and Radu č; 1258in the Obrovac municipa lity, in the villages
Krupa, Golubi ć, Nadvo đe, Zelengrad and Žega; in Sinj municipality, in village of
Koljani; and in Šibenik municipality, in villages of Čista Mala, Jabuka and Lađevci. 1259
1300.Human Rights Watch in their report discussed the responsibility of the high military and
civilian officials, including Pr esident Tudjman for the killin gs of Serbs when Croatian
forces were still in control of the territory:
“President Tudjman, who despite his in itial conciliatory rhetoric calling
for Serbs to remain in the Krajina area allowed attacks against them to
continue for months after the offens ive, should also be held accountable
for the conduct of Croatian troops. Local human rights monitors report
1252Ibid., p. 50.
1253Ibid., pp. 160-162.
1254Ibid., p. 50.
1255Ibid., p. 51.
1256
1257Ibid., pp. 163–164.
1258Ibid., pp. 141–142.
1259Ibid., pp. 142–143.
Croatian Helsinki Committee for Human RighMts,ilitary Operation Storm and it’s Aft,thagreb, 2001, p. 165.
415 that an estimated eighty elderly Serb civilians were executed in the
months from November 1995 to Ap ril 1996, long afte r the Croatian
government had asserted control over the region and promised it would
guarantee the safety of the Serbs living in the Krajina area.” 1260
2. Sector North
1301.Croatian armed forces stormed Sector North in similar manner as was the case with
Sector South. However, unlike Sector South, information about victims in the Sector
North has not always been available in light of the fact that many Serb victims remained
unidentified and buried in unknown locations in the days following operation Storm. 1261
1302.The European Community Monito ring Mission in Croatia (ECM M) reported from the field
about the crimes occurring inSector North. As reported on 7August 1995, in Dvor na Uni
nine physically disabled civilians were killed by armed uniformedmen. On 13 August, at
the checkpoint controlled by the Ukraine unita, RSK soldier was shot, doused with gasoline
and burned; on 29 August in Radašnica, two bodies, of which one was decapitated was
found; on 4 September inPlaški, two bodies werefound in a freezer, onein uniform, one in
civilian clothes. On 10 Septem ber in Svinjice the body of a Serb male, with bullet wounds
to the head and in th e back, was found. ECMM also notd e that Croatian poilce did not allow
their team to enter the house andto be present dur ing its inspection.262
1303.The Croatian Helsinki Committee for Human Righr sport noted that Croatian forces entered
the village of Donji Skrad, Duga Resa m unicipality, on 5 August 1991 and killed Kata
Dmitrović, Nikola Dmitrović, Zorka Gazibara, Ljubomir Kon čalović, Smiljana Končalović,
all of whom were older then 60 years. The next day, in the same village, Danica Dmitroć vi
and Stanka Kon čalović were also killed while Andjelka Ko čalević went missing. Serbs were
also killed in villages oKf estenjak and Veliki Kozinac. 1263
1260Human Rights Watch Report, Croatia: Impunity for abuses committed during Operation Storm, and the
denial of the right of refugees to return to the Krajina , August 1996, Vol.8, No.13 (D), p. 2; Croatian Helsinki
Committee for Human Rights, Military Operation Storm and it’s Aftermath , Zagreb, 2001, pp. 166–169 (list of
24 Civilians killed in Sector South in period from 1996 to 1999).
1261Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
p. 261; see also Humanitarian Crisis Cell Sitrep, Compilation of Human Rights Reporting, 7 August –
11 September 1995 (Annex 55).
1262Ibid.
1263Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
pp. 236–237, see also pp. 255-260.
4161304.As was the case in the territory of Sector Sout h, Serbs from Sector North also left their
homes fleeing from Croatian forces. A sma ll number of elderl y Serbs who stayed
behind were systematically killed. Once mo re the report of the Croatian Helsinki
Committee for Human Rights, emphasized that 11 Serbs were killed or went missing in
separated incidents in Karlovac, 1264 that in Plaški at least 5 Serbs were killed or went
missing, while in Slunj the number of reported Serbs killed is 10, and in municipality of
1265
Vojnić - 14.
1305.In the municipality of Glina, as reporte d by the Croatian Helsinki Committee for
Human Rights, the Serbs killed included Stana Lazić who was 87 years old, killed in the
village of Gornje Selište on or after 7 August 1995; Milka Dmitrovi ć, 72 years old,
killed in the village of Bojna on or after 6 August 1995.
1306.In the village of Brubno, killed Serbian victims were Dušan Radovanović, 60 years old,
and Stanko Vujesinovi ć, 65 years old. According to Cr oatian Helsinki Committee for
Human Rights report they went missing after Croatian forces entered the village. Serb
Slavko Mišćević was killed in the village Buzeta. In the village of Mali Obljaj, Janja
Dukić, 65 years old, Vasilija Vujaklija, around 78 years old, and an unidentified woman
were killed. In the village Veliki Obljaj, Vuja Lončar, 80 years old, and Miloš Rakas, 65
years old, were killed. Slavko Macakanja went missing from the village of Šaševa and
he was last seen on 6 August 1995. 1266
1307.Overall, the number of killed Serbs in Glina, according to the Croatian Helsinki
Committee for Human Rights report, is 35. 1267
1308.In the municipality Dvor na Uni, elderly Serbs remained in local villages. The Croatian
Helsinki Committee for Human Rights report listed some of the known individual
victims.
1309.Stevo Brajnović, 71 years old, Stoja Čorić, 70 years old, Slavka Knežević, 70 years old,
and Milan Miljković, 75 years old, were killed in the village of Šakanlije. According to
1264Ibid., pp. 237-242, see also pp. 255–260 and Annex 3 of the report .
1265Ibid., pp. 241-242, see also pp. 255–260 and Annex 3 to the report.
1266Ibid., Annex 3.
1267Ibid., pp. 242–254; see also Annex 3 of the report.
417 witness statements contained in the Croa tian Helsinki Committee for Human Rights
report, the named persons we re killed on 12 Augus t 1995. In the village of Brdjani,
1268
Branko Roksandić was killed and his body was later found by his father.
1310.Danica Čanak, 75 years old, was killed in the village of Ćore and according to a witness
statement she was killed by a soldier. Nikola Cvetojević disappeared from the village of
Donji Javoranj. Adam Kep čija, 70 years old, was kille d in the village of Kep čije on 7
August 1995. Dragica Benak, 64 years old, was killed in the village of Paukovac and
1269
her body, according to witnesses, was found in September or October of 1995.
1311.Overall, in Dvor at least 45 Serbs were killed, in Gvozd 20 Serbs were killed, in Petrinja
1270
17 Serbs, in Kostajnica 7 Serbs, and in Sunja 5 Serbs were killed.
6. Destruction and Looting of Serbian Property
1312.The systematic killings of Serbs were also followed by other activ ities geared toward
destroying every possibility that Serbs who were not killed could live on the territory of
Krajina. Upon entering the Serb populated villages, Croatian forces killed Serbs that
they managed to find, destroyed houses a nd other Serb propert y, killed livestock,
polluted wells and waterways, and stole or removed fire-wood stored for the upcoming
1271
winter. Symbols of presence of the Serbia n community in the area were also
destroyed during and in the aftermath of th e operation – houses, churches, monasteries
1272
and cultural monuments were devastated and burnt. The Respondent will provide a
short overview of the facts showing the syst ematic destruction of Serbian property. The
1268Ibid., pp. 242–254.
1269Ibid.
1270Ibid.
1271
ICTY, Gotovina et al, IT-060-90, Prosecutor’s Pre-trial brief, Public Version of Pre-Trial Brief, 23 March
2007, para. 40; see also ICTY, Gotovina et al., IT-060-90, testimony of witness Ton Minkuielien, 15 April 2008,
Transcript p. 1501; see also ibid., testimony of witness Alain Robert Forand, 3 June 2008, Transcript p. 4126;
see also ibid., testimony of witness Alain Robert Forand, 3 June 2008, Transcript p. 4126; see also ECMM Team
N2, The Consequences in former “RSK” of Operation “Storm”, Special Report, dated 23 August 1995 (Author
Soren Liborius), (Annex 54).
1272ICTY, Gotovina et al, IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, Notice of (alleged) serious crimes in the zo ne of responsibility of the Split MD during and after
Operation Storm, pp. 317-352; see also Humanitari an Crisis Cell Sitrep, Compilation of Human Rights
Reporting, 7 August – 11 September 1995 (Annex 55); see also UNMO HQ Sector South, Summary of
Humanitarian Violations, DAILY SITREPS, 4 September – 4 October (Annex 57); see also: UNMO HQ Sector
South & Human Rights Activities Team (HRAT), Survey Report on the Humanitarian Rights Situation in Sector
South, 4 October-4 November 1995, drafted by Major Peter Marti and Captain Kari Anttila (Annex 58);
418 UN observers noted the systematic charac ter of the processe s during the operation
Storm and the Secretary General reported about this in the following manner:
“Since the beginning of the Croatian offensive, there have been numerous
reports of houses and other property b ing set on fire ando/r looted. Although
there were no sightings of houses act ually being set alight, many of the
reports indicated that Croat ain troops were in the cloe s vicinity ofthe burning
houses and in many of the areas in question all the inhabitants had already
fled. On 8 August, for instance, UnitedNations civilian police reported that
houses in Zazvici, Djevrske and Kistanje, in Sector South, were on fire. A
human rights action teamreported on 10 August that35 to 40 houses along a
15-kilometre stretch of road south oK f nin towards Drnis were burning; crops
had also been set ablaze. Members of U a nited Nations batta lion reported that
on 10 and 11 August h ouses recently set on fire were observed in nine
different villages in Sector South. In addition, they reported evidence of
looting. On 13 August, a United Na tions military observer observed a
burning house in Topusko in Sector North; Croatian soldiers were standing
by. As late as 15 August 1995, a humang rihts action team rported houses as
1273
having been freshly set ablaze in Mircete in Sector South.”
1313.Witness Dreyer, while describing to the IC TY Trial Chamber what he saw in Knin,
particularly noted that, apart from dead humans, he and his co lleagues also observed
that almost all cattle, dogs, pigs, and other animals had also been shot. 1274
1314.The village of Kistanje was described by International Observers as being totally
1275
destroyed, there were not even animals there, just a strong smell of bodies. John Hill
testified that the village of Srb was destroye d and he also saw looting being perpetrated
1276
by HV soldiers. Witness Hill further desc ribed that, upon entering Otri ć, they saw
1273
Report of the Secretary-Generalbmitted pursuant to Security Councilresolution 1009 (1995), 23 August 1995,
1274oc. S/1995/730, para. 17.
See ICTY, Gotovina et al., IT-060-90, testimony of witness Andreas Dreyer, 16 April 2008, Transcript
pp. 1739–1740; see alibid., testimony of witness Roland Dangerfield, 24 July 2008, Transcript pp. 7153–7154 (witness
testified about systematic looting in Knin that have er HV troops entered the city that lasted for 2 weeks).
1275See ibid., IT-060-90, testimony of witness John William H ill, 28 May 2008, Transcript p. 3768; see also
ibid., testimony of witness Roland Dangerfield, 24 July 208, Transcript p. 7160 (witness testified that vast
majority of Kistanje was on fire); see also ibid., testimony of witness Rajko Guša, 1 October 2008, Transcript
pp. 9834–9835 (witness testified about burning and destruction of Kistanje, Ervenik and surrounding villages).
1276See ibid., testimony of witness John William Hill, 28 May 2008, Transcript pp. 3777–3778.
419 homes burning, but also noted that “all of th e animals, cows, pigs, sheep, whatever had
been killed, shot.” 1277 The village of Gra čac was described by witness Hill as being
fairly well destroyed. He saw that some houses were still burning while the looting was
taking place and there was again a strong smell of bodies. 1278
1315.Witness Edmond Vanderstyne also testified about the destru ction he observed in the
area between Gospi ć and Gra čac. He testified that from a little hill he “saw the
countryside as far as could you look and everywhere, everywhere every farm, every
bam, every annex, every house in the countrysi de. I mean, not in the villages, but every
single building in the countrysi de was on fire.” The witne ss also testif ied that the
looting was organized and on a major scale. 1279
1316.Because of the massive scale of destructi on, witness Herman Steenbergen, deputy team
leader of UNMO Team Gra čac, made a complaint to Croatian police about the burning
of houses in Gra čac. He was given a sarcastic answer that the cause of the fire was
1280
faulty wiring installed by the Serbs.
1317.Witness Edward Flynn confirmed before a Tria Clhamber of the ICTY his report in which he
stated that Kistanje,Đeverske, Otri ć and other towns had becomevirtually unliv able because
1281
of actions that tookplace after the fighting. Looting of property wassystematic as well as
its destruction and Serbs’ property had been specifically targeted while Croatian households
1282
were spared. The UN report noted that virtually every abandoned Serb property was
1283
looted. The looting of Serb property decreased oln y in October, but according to the UN
1284
report only because “there was nothing left to loot”.
1277See ibid., testimony of witness John William Hill, 28 May 2008, Trial Transcript p. 3776.
1278See ibid., testimony of witness John William Hill, 28 May 2008, Transcript p. 3772; see also ibid., testimony
of witness Herman Steenbergen, 30 June 2008, Transcript pp. 5416 and 5429 (witness observed burning of
houses and looting in Gračac and village Velika Popina).
1279
See ibid., testimony of witness Edmond Vanderstyne, 2 June 2008, Transcript 4047 (witness was a a Belgian
1280nalist, De Standard newspaper).
1281See ibid., testimony of witness Herman Steenbergen, 30 June 2008, Transcript p. 5431.
See ibid., testimony of witness Edward Flynn, 9 April 2008, Transcript p. 1501.
1282Ibid., Prosecutor’s Pre-trial brief, Public Version of Pre-Trial Brief, 23 March 2007, para. 41; see also ibid.,
Trial Chamber 98 BIS Decision, 3 April 2009, Transcript pp. 17611–17612.
1283Report on the situation of human rights in Croatiapursuant to Security Council Resolution 1019 (1995),
25 December 1995, UN Doc. S/1995/1051, p. 5.
1284
UNMO HQ Sector South & Human Rights Activities Team (HRAT), Survey Report on the Humanitarian
Rights Situation in Sector South, 4 October-4 November 1995 (drafted by Major Peter Marti and Captain Kari
Anttila) (Annex 58).
4201318.Whilst these crimes were taking place, as a rule, the movement of UNCRO was
forbidden by Croatian authorities. Br igadier Forand, protested to General Čermak even
at the time of the events that the restri ction of movement was intended to prevent
1285
UNCRO from monitoring the situation. Forand also prot ested to General Čermak
about the torching of houses while General Čermak accused Forand of making baseless
1286
accusations. Mr. Forand simply concluded that methodical and continous destruction
that was observed wherever they could tr avel suggested the real reason for the
1287
restrictions in movement imposed by Croatian forces. He also noted that Croats used
these periods of restricted movement to clean up evidence of their military tactics like
1288
patching up shell holes on the Knin - Drniš road.
1319.In the words of witness Kari Antila, UN m ilitary observer in Sector South, even though
Croats explained that such restrictions we re required for mop-up operations, he and his
colleagues thought that such restrictions were imposed just to provide an opportunity to
burn houses and loot them without fear. 1289Witness Forand testified in relation to the
crimes committed in Donji Lapac during August 1995 that usually there was a
connection between restricti on of movement and mop up activities or subsequent
crimes. He confirmed the UN situation repor t from 31 August, re porting atrocities
against people and property, including mu rder, and wholesale destruction of
livestock.1290
1320.Despite the words of General Čermak, it was clear to the UN that such destruction could
not be done without the existence of a systematic and premeditated plan:
“In the whole Krajina region houses we re burning and even today, more
than five weeks after the last battle s, they are still burning. Destroying
big complex of Non-Croat properties can lead to the conclusion that this
1285See ICTY, Gotovina et al.,IT-060-90, testimony of witness Alain Robert Forand, 3 June 2008, Transcript 4128–
4129; alsoibid., Reynaud Theunens, Expert report:Croatian Armed Forces and Operation Stor,mPart II, p. 232.
1286ICTY, Gotovina et al, IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 232.
1287See ICTY,Gotovina et al.,IT-060-90, testimony of witness Alain rt Forand, 3 June 2008, Transcript p. 4135.
1288
1289Ibid., pp. 4126-4127; see alsoibid., testimony of witness Alun Roberts, 21 July 2008, Transcript p. 6895.
See ibid., testimony of witness Kari Antila, 1 May 2008, Transcript p. 2637; see alsibid., testimony of
witness Jacques Morneau, 29 May 2008, Transcript p. 3941; see also ibid., testimony of witness Joseph
Bellarose, 7 July 2008, Transcript p. 5875.
1290See ibid., testimony of witness Alain Robert Forand, 3 June 2008, Transcript p. 4157.
421 was not done only by mobs and that the whole affair was tolerated by the
Croatian Government… Result will be an efficient impediment of the
Serb return to their houses and it will also create more difficulties for
people to settle down again in this region. It is impossible to identify the
accurate range of destruction, but the largest portion of property in rural
parts of former Sector South is, roughly speaking, partially or completely
destroyed… General destruction happe ned more in the former Sector
South, than in the Sector North. So me bigger town like Knin, Benkovac,
Obrovac and Drniš were spared and serve as showcases for public” 1291.
1321.That destruction and looting of Serbian prope rty was systematic was also confirmed by
witness Jacques Morneau, whose UN un it was located near Benkovac. Witness
Morneau explained that destruction and lootin g lasted day after da y for three to four
1292
weeks and was deliberate in the sense that houses were targeted and selected.
Reports from different police administrations like Šibenik and Zadar, confirm that the
cooperation of civilian police and units of military police in providing security to
1293
“liberated areas” was inadequate and that joint patrols were in fact “non existent”.
1322.UN reports suspected that the destruction was planned, and not just tolerated by the
Croatian Government. This can be seen from the Croatian civilian police report of Čedo
Romanić, the Chief of the Knin (civilian) Police Administration, dated 1 September 1995.
In the report, burning of familyhouses was noted, and it was stated that in the majority of
cases houses were set on fire by persons we aring HV uniforms and units that were
1294
mopping up the area from is olated paramilitary units. It is obvious thus that the
destruction was not only tolerate d but actually perpetrated byde jureorgans of Croatia.
1323.It was noted that, while in Sector South ar sons occurred during and immediately after
the operation Storm, in Sector North only sporadic de struction of houses was reported
during the operation Storm, while it began being fully implemented after the
1295
operation.
1291
Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
129282–83.
See ICTY,Gotovina et al.,IT-060-90, testimony of witness Jacqs orneau, 29 May 2008, Transcript p. 3940.
1293ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 232.
1294Ibid.
1295Croatian Helsinki Committee for Human RighMts,ilitary Operation Storm and it’s Af,thagreb, 2001, p. 211.
4221324.However, the reason for lesser destruction in Sector North was that Croatian leadership
found other ways to make sure that the Se rbs would never live again in those areas.
Namely, as noted by the Croatian Helsinki Committee for Human Rights:
“In the region (former Sector Nort h), which is a compliment to the
Republic of Croatia, most of the houses were not burned down. They
remained intact and they could be used. The newcomers from BIH
[Bosnia and Herzegovina] and Vojvodina were resettled daily into that
1296
region. The empty houses that are inhabited are entirely looted.”
1325.Finally, the UNMO report from 4 November 1995 on Sector South states that 17,270
houses were destroyed or damaged af ter the commencement of the operation Storm. 1297
Similarly in October 1995, the UN was also able to comment on the scale of the
destruction:
“As of the end of September, th e European Community Monitoring
Mission (ECMM) documented that 73 per cent of Serb houses were
burned and looted in 243 villages investigated. In early October, accounts
of armed robberies and personal thr eats were reported with increasing
frequency, along with crimes against property.” 1298
7. After Effects
1326.In the following section a short overview will be given as to how the operation Storm
affected Krajina Serbs that used to live in Sectors South and North. Furthermore, it will
be shown what further steps the Croatian G overnment took in order to prevent Serbs
from returning to their homes.
1327.The Croatian plan was successfully implemented and Krajina Serbs ceased to exist. Due
to the operation Storm, the aforementioned killings, the serious bodily or mental harm
that was caused to Serbs, and the intentional and organized destruction of Serb property
129Ibid., p. 265.
129See also UNMO HQ Sector South & Human Rights Activities Team (HRAT), Survey Report on the
Humanitarian Rights Situation in Sector South, 4 October-4 November 1995 (drafted by Major Peter Marti and
Captain Kari Anttila) (Annex 58).
129The situation in the occupied territories of CroaReport of the Secretary-Gene ral, UN Doc. A/50/648,
18 October 1995, para. 33.
423 by Croatian forces that took pl ace on the territory of form er Sectors South and North,
only approximately 5,000 Serbs remained livi ng there. As stated by the Secretary
General in his report:
“The exodus of 200,000 Krajina Serbs fl eeing the Croatian offensive in
early August created a humanitarian crisis of major proportions. It is now
estimated that only about 3,000 Krajina Serbs remain in the former
1299
Sector North and about 2,000 in the former Sector South.
1328.In an effort to ensure that Serbs w ould disappear from Kr ajina, the Croatian
Government repopulated the region with Croa ts. The Croatian Helsinki Committee for
Human Rights report notes that:
“180.000 Croats from BIH, Vojvodina and Kosovo have resettled on the
liberated territories in the follo wing municipalities: Glina, Gvozd,
Hrvatska Kostajnica, Krnjak, Plaški, Petrinja, Vojni ć, Serb property was
given to the Croat newcomers for them to keep initially for 10 years, and
subsequently forever. 1300
A. Croatia’s actions targeting Krajina Serbs after the Operation Storm
1329.The level of persistency of the Croatian G overnment, headed by its President Tudjman,
in implementing the plan to have Krajina Se rbs disappear is dem onstrated by the fact
that they simply ignored directly applicab le resolutions of the UN Security Council.
Security Council resolution 1009 was adopted on 10 August 1995 and it urged Croatia
to respect the rights of the Se rb population to remain, stay or return safely and to create
conditions for return for those who wished to do so. 1301The Security Council resolution
adopted on 9 November 1995 was even more direct in this respect:
“...6. Reaffirms its demand that the Government of the Republic of Croatia
take urgent measures to put an end to violations of international humanitarian
law and of human rights, and investigate a llreports of such violations so that
those responsible in rsepect of such acts be judged and punished.
129Ibid., para. 27.
130Croatian Helsinki Committee for Human Rights,ilitary Operation Storm and it’s A,hagreb, 2001, p. 299.
130Security Council resolution 1009 (1995) of 10 August 1995.
424 7. Reiterates its demand that the Government of the Republic of Croatia
respect fully the rights of the local Serb population including their right
to remain or return in safety an d reiterates also its call upon the
Government of the Republic of Croatia to lift any time-limits placed on
1302
the return of refugees to Croatia to reclaim their property.”
1330.However, a number of documents testify ab out the actual plan of the Croatian
Government. The importance for Croatia that Serbs were not to exist as a community on
its territory is evident from the advice that Mr. Valentić gave in mid-August to President
Tudjman. He stated that there was no need to conduct a census to determine a minority
list because “there is no more than 2% of Serbs in Croatia, 2 to 3%.” 1303
1331.On 23 August 1995 President Tudjman held a meeting with the military leadership of
the Croatian army in order to try to solv e the demographic situation in the former
protected areas - sectors South and North. From the transcripts of that meeting it can be
seen that at the time when the Krajina Se rb community disappear ed according to the
Brioni plan, the Croatian leadership had alr eady a plan prepared on how to ensure that
this community was never restored in Kr ajina. President Tudjman stated on that
meeting:
“...in view of the situation created by the liberation of occupied territories
affecting the demographic picture, ther e is a need to make military units
one of the most effective elements , which can happen if we properly
solve one of the most effective postulate s of states’ politics in dealing
with our essential problem of today , namely, demographic situation in
Croatia. That was why I invited to this meeting the Vice Premier and the
Minister responsible for reconstr uction and development, Dr. Radi ć, to
present, at the opening of this deba te, the present demographic situation
because of the deployment of mi litary commands, military districts,
brigade stationing, military-training inst itutions, etc. It may be effective
and useful to resolve that situation where we have reinforced or at least
130Security Council resolution 1009 (1995) of 10 August 1995.
130Presidental transcript (17 August 1995), cited in the ICTY, Gotovina et al., IT-060-90, Prosecutor’s Pre-trial
brief, Public Version of Pre-Trial Brief, 23 March 2007, para. 23.
425 should reinforce Croatian dom, like in Istria, and in other places the more
so because it is not so much about changing the composition today as to
1304
populate some places and areas.”
1332.Minister Radić explained how they should proceed:
“I conclude, therefore, that red and blue areas should promptly and, as a
matter of priority, be populated by Croats, as far as possible. These areas
are marked, including Zrinska Gora, which I skipped for the time being,
and areas such as Lapac and Knin, namely the hinterland and the
Herzegovina region, which should be gi ven secondary priority, and this
1305
empty area in Lika as much as possible....”
1333.Several days later, on 26 August, President Tudjm nagave a speech in the city of Knin, which
used to be the center of the Serbian communitiy n Krajina. President Tudjman publicly stated
the likelihood of the idea thaSterbs would never live again on the territory of Krajina:
“Croatian women and men, dear Croa tian youth, Croatian soldiers, dear
citizens of Knin, you who have survivedhere and who havereturned and all
your guests who have gathered here on this day - and we can accept what
Croatian Army Knin commander Gen Ivan Cermak said: that we can call
this the day when the Croatian hsitorical cross has been completed.
And [applause] there can be no return to the past, to the times when they
the Serbs were spreading cancer in the heart of Croatia, cancer which
was destroying the Croatian national being and which did not allow the
Croatian people to be the master in its own house and did not allow
Croatia to lead an independent and sovereign life under this wide, blue
1306
sky and within the world community of sovereign nations.”
1304
Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
Officials, on 23 August 1995 in Zagreb, pp. 01325991, 01325993-01325997, pp. 4–7 (Annex 53), see also ICTY,
1305vina et al.,IT-060-90, testimony of witness Škare Ožbolt, 4 June 2009, Transcript pp. 18157–18159.
Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
1306cials, on 23 August 1995 in Zagreb, pp. 01325991, 01325993-01325997, pp. 4–7 (Annex 53).
BBC Summary of World Broadcasts, August 28, 1995, Monday, Part 2 Central Europe, the Balkans; Former
Yugoslavia; Croatia; EE/D2393/C; see also HINA Article, Franjo Tudjman: Hour of return has come both for
East Slavonia and Baranja, dated 28 August 1995: “And those from the international community who are
accusing us even today that we are toching Serbian houses in the liberated territories of Croatia should remember
that it is a tenet from the Old Testament: An eye for and eye and a tooth for a tooth!” (Annex 56)
4261334.The effectiveness of President Tudjman’s plan to have Serbs disappear from the
territory, thereby preventing them from be ing a political factor in the Croatian
parliament under the Constitutional Law on Minorities, can be seen from his own words
uttered in December 1995: “… when we pa ssed a decision to conduct a popular census,
we wanted to determine the number of Se rbs who would leave. Since we currently
know that 98% of them left this area, it means that the census is not required at this
1307
point.” From this statement one could only c onclude that in President Tudjman’s
opinion the destruction of Krajina Serbs was successfully accomplished.
1335.Bearing in mind the attitude towards Serbs publicly expressed by President Tudjman, it
is unsurprising that the killing of Serbs continued to take place long after the operation
Storm. As noted in the Croatian Helsinki Co mmittee for Human Rights report, at least
24 ethnically motivated killings of Serbs occurred between 1996 and 1999 in the area of
the former Sector South. At least 8 people were killed in the former Sector North. 1308
1336.According to the UN Special Rapporteur:
“Unfortunately, one year after Operation Storm, it is evident that the Croatian
authorities are still not poviding adequate secu rity to the residents of former
Sectors North and South. During mymission I learned of numerous recent
cases of looting, arson and harassment in the region, in which most of the
victims have been Croatian Serbs. Thee ris also an ominous new problem of
bombing incidents, which have cas ued at least ree deaths....
“Mr. Chairman, the continuing state of insecurity in former Sectors North
and South so long after last summer' s military operations leads me to
conclude that there apparently is an unwillingness on the part of the
Croatian authorities to take strong preventive measures to ensure the
safety of local residents. I am deeply concerned at this situation for many
reasons, including its likely effect on the decisions of Croatian Serbs who
are considering either remaining in - or returning to - the area ...” 1309
1307ICTY, Gotovina et al., IT-060-90, Prosecutor’s Pre-trial bril Version of Pre-Trial Brief, 23 March 2007,
para. 23.
1308Croatian Helsinki Committee for Human Rights, Military Operation Storm and it’s Aftermath, Zagreb, 2001,
details about killings at pp. 104-106, number of killed pp. 137 & 166–169, description of events in Sector North
pp. 281–283, list of killed pp. 285–286.
1309Periodic report submitted by Ms. Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights,
pursuant to paragraph 45 of Commission resolution 1996, 22 October 1996, UN Doc. E/CN.4/1997/9, para. 124.
4271337. The Human Rights Watch noted the perpetrators of the crimes against Serbs:
“Contrary to Croatian government assertions, "individual extremists" and
individual Croats whom Serbs earlierhad expelled from their homes appear
not to have been responsibe l for the bulk of the kiligs. Rather, all available
evidence indicates that Croa tian Army soldiers and, in some cases, Croatian
police were responsible. Many of those killed had been seen in or outside
their homes in the presence of Croatian Army soldiers. The soldiers often
1310
were also seen looting homes orwalking away froma burning house. ”
B. Legislative Measures Targeting Serbs
1338.Serbs were not only targeted by bombs or killed in other ways, but the Croatian
Government made additional efforts to make sure that their goal of ridding the territory
of Serbs and destroying all vestiges of Serb life and culture was fulfilled. UN Special
Rapporteur Elisabeth Rehn iden tified in her report constrai nts imposed by Croatia to
prevent any chance that Serbs would ever again exist in Kr ajina. First she identified
physical barriers to returning:
“The official line in Croatia is that the Serbs are welcome to return to
their ancestral homes. However, the reality is rather different. First, there
are physical barriers to returning because of th e widespread burning of
houses and, secondly, there are more subtle legal and administrative
1311
impediments.”
1339.Special procedures for reclaiming prope rty was put in place by the Croatian
Government to ensure that Serbs would not be able to reclaim the small number of
houses that were not burned. The UN Special Rapporteur stated:
“Furthermore, the Special Rapporteur notes the difficulties facing
refugees in returning to Croatia with in the deadline in order to reclaim
their properties. The Croatian Office for Displaced Persons and Refugees
131Human Rights Watch Report, Croatia: Impunity for abuses committed during Operation Storm and the
denial of the right of refugees to return to the Krajina, August 1996, Vol. 8, No. 13 (D), p. 22.
131Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, para. 36.
428 has established a procedure for return. After studying the regulations, the
Special Rapporteur is convinced that the vast majority of refugees,
regardless of their own intentions, will not be able to meet those
1312
requirements…”
1340.As noted by the Secretary-General, executive and legislative measures that the Croatian
Government adopted clearly targeted Serbs. As stated in the Secretary-General’s report:
“The Croatian Government has consis tently maintained that Serbs are
free to live in Croatia and that thos e who fled are welcome to return.
However, the United Nations High Commissioner for Human Rights,
UNHCR and UNCRO, as well as a number of Member States and
independent human rights organizati ons, have expressed their concerns
over the fact that serious violations of human rights have taken place and
have continued to occur after the military operations had been
successfully concluded. These viola tions, together with a number of
recently adopted executive and legislative measures, appear de facto to
restrict the civil, political, economic and social rights of the Croatian
Serb population and the refugees’ right to return, in contravention of
international conventions (see s ect. C below). The High Commissioner
for Human Rights raised these matters in two letters to President
Tudjman on 18 August and 2 October 1995. In his letter of 2 October, he
particularly urged that the Croatia n Government should not deter the
return of the local Serb population in safety and dignity.” 1313
1341.The Secretary-General even reported on conc rete executive and legislative measures
that were enacted by the Croatian Government. One of the executive orders was adopted
on 31 August 1995 and stipulated the tempor ary expropriation and control by the
Government of certain “abandoned” property in the former Sectors North, South and
West. The law also applied to any property situated in Croatia owned by individuals
who had left the country after 17 August 1990 or who resided in Sector East, the FRY
or areas of Bosnia and Herzegovina under the control of Bosnian Serb forces.
131Ibid., para. 40.
131The situation in the occupied territories of Croatia: Report of the Secretary-General,18 October 1995, UN
Doc. A/50/648, para. 28.
4291342.Naturally, such property was not abandoned by Serbs but was the property of the Serbs
who were forcibly expelled by the Croatian Government. Th e Secretary-General noted
that the deadline for claims of exemption was at first 30 days from 4 September 1995,
and was subsequently extended to 90 days. Within that deadline the property owners
were required to claim their property for possession and use.
1343.However, the Secretary-General noted that for the Croatian Serbs physical return within
that time-limit, in order to claim their rights , was neither feasible nor advisable and that
this law constituted a potentially insurmountab le obstacle. It was also noted that the
Security Council on 3 October called upon the Government of Croatia to lift any time-
limit on the return of refugees to Croatia to reclaim their property. 1314
1344.Mr. Galbraith, former US ambassador in Croati a, testified that Serbs were not allowed
to come back within the 30 day period to re claim their property. He further gave his
account of the meeting with Mr. Šarinić in order to press upon this issue. The answer he
was given by Mr. Šarini ć was that “[w]e cannot accept th em to come back. They are
1315
cancer in the stomach of Croatia”, which clearly shows the intentions of Croatian
Government when enacting this and other laws applicable to Serbs.
1345.Secretary General also noted th at the Croatian Parliament adopted modifications to the
electoral law that reduced the number of Croa tian Serbs representatives from twelve to
1316
three.
1346.The enactment of executive and legislative measures wa s intended as a measure to
prevent any possibility that Krajina Serbs w ould reclaim their property. As noted in the
UN and ECMM reports, the Croatian Governme nt physically prevented the return of
Serbs and then enacted laws that would, in the unlikely event that some Serbs did
return, ensure that the majority of Serbs would lose their property. 1317
1314Ibid., para. 37; see also ECMM, 100 Days after Op eration “Storm” in the former “Serb Krajina”,
Comprehensive Survey Report on the First Hundred Days of Croatian Rule in UN Sector South, dated
1315ovember 1995p. 4, (Annex 60).
See ICTY, Gotovina et al., IT-060-90, testimony of witness Pete r Galbraith, 23 June 2008, Transcript
1316939.
The situation in the occupied territories of CroatiReport of the Secretary-Gene ral, UN Doc. A/50/648,
18 October 1995, para. 38.
1317See supra para. 174 et seq. , see also ICTY, Gotovina et al., IT-060-90, testimony of witness
Vesna Skare Ožbolt, 4 June 2009, Transcript pp. 18524–18525.
430C. Criminal Impunity
1347.While the Croatian Government was being ve ry active in enacting laws against Serbs,
the Croatian judiciary on the other hand did not use the criminal justice system in place
to punish the perpetrators of crimes committed against Serbs. Such criminal impunity,
at times publicly exhibited in courtrooms, as demonstrated in Chapter III, was a
message to Serbs. 1318
1348.Furthermore, the OSCE noted the discrepa ncy in the proceedings conducted against
Croats, by stating:
“A recent OSCE report on domestic war crimes tr ials in Croatia noted
that ‘the national origin of de fendants and possibly even more
importantly that of victims continue d to affect war crimes proceedings
in 2003’. According to statistical data comp iled by the OSCE Mission
to Croatia, in 2003 19 of 20 people a rrested, 137 of 148 under
investigation, three of three indicte d, 83 of 102 on trial, and 10 of 12
people convicted were ethnic Serbs. The total number of ethnic Croats
arrested, indicted and pu t on trial for war crim es and crimes against
1319
humanity decreased from 2002 to 2003.”
1349.On the other hand, trials conducted against Serbs had a similar goal. A short overview
of cases initiated against Serbs was given in Chapter IV of this Counter-Memorial. It
was shown that such trials lacked impartia lity and fairness. It should however also be
stated that even though the Respondent is wholeheartedly in fa vour of the criminal
conviction of anyone responsible for any crimes of the severity of war crimes and
crimes against humanity, it is hard not to notice that criminal trials in Croatia were
actually a message intended for Krajina Serbs.
1350.This was obvious to the OSCE Monitori ng Mission to Croatia for many reasons
including the significant disproportion between the number of Serbs and the number of
131See supra Chapter III, paras. 184–199.
131Amnesty International, A shadow on Croatia’s future: Continuinimpunity for war crimes and crimes
against humanity, 2004, AI Index: EUR 64/005/204, p. 10.
431 Croats charged with war crimes, and the finding s of trial courts that appeared contrary
to the evidence presented. This was all indica tive of the lack of impartiality and the
conduct of trials against Serbs in an unfair manner.
1351.It was obvious shortly after the operation Storm that all military able Serbs that stayed
in Krajina were arrested under charges for armed rebellion. Human Rights Watch noted:
“…Reportedly 1,043 or 1,047 persons -- al most all men -- were detained
during and after the Krajina offens ive; as of mid-December, 820
remained in prison. Most of those released were freed due to lack of
evidence of criminal behavior but some may have been charged, released
on bail and ordered to st and trial at a future date. These men are not
permitted to leave the country until after their trial. According to
representatives of the U.N. humanitarian cris is cells, over one hundred
persons had been sentenced by mid-December 1995….Indeed, while
some of the detained appear to have been charged with ‘war crimes’, the
majority of those captured as a result of the Krajina offensive are charged
with ‘armed rebellion against Croatia’ simply by virtue of their affiliation
with the RSK military, which drafted all eligible men. Some of those
charged with ‘war crimes’ were accused of having participated in
massacres, murder or mistreatment of Croats in 1991, and/or ordering,
commanding, or participating in th e shelling of Croatian government-
controlled territory during the war. The evidentiary bases on which some
of the defendants are charged and trie d is often weak. In some cases, the
court failed to convict defendants due to lack of evidence, while in other
1320
instances, persons were convicted despite the paucity of evidence.”
1352.Under pressure from the international co mmunity, the Croatian Government had to
enact a Law on Amnesty, passed by the Parliament on 25 September 1996. 1321
However, as was noted in January 1997 by th e Special Rapporteur, in practice this law
did not produce results.
132Human Rights Watch Report, Impunity for abuses committed during Operation Storm, and the denial of the
right of refugees to return to the Krajina, pp. 29-31, August 1996, Vol. 8, No. 13 (D).
132Periodic report submitted by Ms. Elisabeth Rehn, Speci al Rapporteur of the Commission on Human Rights,
pursuant to paragraph 45 of Commission resolution 1996/71, 22 October 1996, UN Doc. E/CN.4/1997/9, paras. 54–57.
432 “...78. The Special Rapporteur has prev iously noted her view that the
adoption of the Amnesty Law on 25 September 1996 was a positive step
for both the return of Croatian Serb refugees and the peaceful
reintegration of the Eastern Slavoni a region into the rest of Croatia.
However, the Law's implementation, a nd specifically the re-arrests of
numerous persons following its adoption, have cast doubt on its
effectiveness for these purposes. ...
80. … The Minister informed the Special Rapporteur that the law
resulted in the release of 96 persons, but that some 27 had evidently been
re-arrested, accused of war crimes or criminal offences not covered by
1322
the Amnesty Law.”
8. Conclusion
1353.The Croatian Government made a plan to destroy Krajina Serbs by conducting the
military operation Storm. This plan was finalized during the Brioni meeting and devised
by top civilian and military leadership aimed at making Serbs disappear from Croatia.
Croatian forces on the ground started the attack with the heavy and indiscriminate
shelling of Serb cities that killed and wounded many Serb civilians.
1354.These shelling and killings perpetrated by Croatian forces upon entering Serb towns and
villages forced Serb civilians to flee fr om Croatian forces. Members of the Serbian
Krajina community were subsequently killed by direct shelling from land and air, even
after they had managed to cross the Croatian border. More than 200,000 Serbs ran from
their homes in panic, leaving everything th ey had behind, while only several thousands
of elderly Serbs who were no t physically able to flee rema ined as the Croatian forces
took Krajina. Croatian military and police forces then systematically killed every Serb
they managed to find, burned every Serb house hold, looted Serb prop erty, killed Serb
animals and polluted wells in Serb villages.
1355.The Croatian Government repopulated Serbia n homes with Croats, enacted laws that
targeted Serbs, thereby preventing their retu rn. The perpetrators of the crimes against
1322
Periodic report submitted by Ms. Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights, pursuant
to paragraph 45 of Commission resolution 1996/71, 29 January 1997, UN Doc. E/CN.4/1997/56, paras. 77–81.
433 Serbs were not prosecuted, while the majo rity of Serbs were charged with armed
rebellion and other war crimes, and were co nvicted in proceedings that according to
international observers were conducted in an unfair manner and in a great majority of
cases in absentia.
1356.By the operation Storm and the events that followed it, the Republic of Croatia
succeeded in its criminal plan to destroy Krajina Serbs.
434 CHAPTER XIV
THE CRIME OF GENOCIDE HAS BEEN COMMITTED AGAINST SERBS IN
CROATIA BY THE CROATIAN DE JURE ORGANS
1. Introduction
1357.In the following section of Chapter XIV the Respondent will demonstrate to the Court
why the previously described operation Storm and the crimes committed during the
course of the operation and in its aftermat h amount to genocide committed against part
of the group of Serbs in Croatia.
1358.The arguments will be presented as follows: firstly it will be briefly explained that Serbs
in Croatia represented a national and ethnical group, protected by the Genocide
Convention. Secondly, the Respondent will elaborate against which part of the protected
group of Serbs in Croatia the genocide was perpetrated.
1359.Thirdly, it will be shown that crimes committed against the Krajina Serbs, as described,
meet the requirements of the particular actus reus elements of genocide.
1360.Finally, the fourth part will demonstrate the ex istence of the special intent to destroy in
part the protected group.
2. Serbs in Croatia were Targeted as Members of a National and Ethnical Group
1361.The Respondent stresses at this point that Serbs in Croatia undoubtedly satisfied the
requirement under Article 2 of the Conventio n – they were clearly an identifiable
national and ethnical group. As already mentioned in Ch apter II pertaining to the
applicable law, the groups protected by the Genocide Convention are national, ethnical,
racial or religious groups.
1362.The criteria for determining groups that may fall under these categories have been
elaborated in international practice. The ICTR inAkayesu defined a national groupas “a
collection of people who are perceived to share a legal bon d based on common
435 1323
citizenship, coupled with reciprocity of rights and duties”. The definition provided by
the Council of Europe Veni ce Commission might be of ev en more assistance in
addressing this issue as it provides more elements based on which a national group may
be identified. According to Venice Comission,a “national minority” group is one that “is
smaller in numbers than the rest of the population of the State, whose members, who are
nationals of that State, have ethnical, religious or linguistic features different from those
of the rest of the populati on, and are guided by the will to safeguard their culture,
1324
traditions, religion, or language”. Membership in a racial group is considered as
perhaps easier to determine since its memb ers have “hereditary physical traits often
identified with a geographical region, irresp ective of linguistic, cultural, national or
1325
religious factors”. Ethnical groups have been in practice defined as those whose
1326
members “share a common language or culture”. Its members share common heritage
that is either real or presumed and, in addition to language and culture, can also share
certain religion and behavioral traits. The concept of a religious group does not raise as
many issues in relation to its definition as other groups since it takes as a common
denominator religion or denomination or mode of worship. 1327Whether a concrete group
is to be considered as falling within one of the four categories is to be determined on a
case-by-case basis and with reliance bothon subjective and objective criteria. 1328
1363.Throughout these counter-claims particular evidence has been cited showing that
tradition, history, and the spec ific way of life made Serbs in Croatia a stable and
permanent group that was identified as such by all. Serbs in Croatia were
distinguishable from the majority of the population by their descent, religion, tradition,
and culture. According to the Encyclopedia Britannica “the prim ary distinguishing
characteristics for ethnic identification am ong the Slavs in Croa tia are religion and
cultural tradition” 1329. Serbs represented both an ethnic group and a national minority in
Croatia. Serbs considered themselves based on such tradition, cultural and religious
characteristics as a distinct ethnic and national group.
1323ICTR, Akayesu, ICTR-96-4-T, Trial Judgment, 2 September 1998, para. 512.
1324European Commission for Democracy through Law, The Protection of Minorities, Strasbourg, Council of
Europe Press, 1994, p. 12.
1325ICTR, Akayesu, ICTR-96-4-T, Trial Judgment, 2 September 1998, para. 514.
1326
1327Ibid., para. 513.
1328Ibid., para. 515.
1329See, for example, ICTY, Blagojević et al., IT-02-60-T, Trial Chamber Judgment, 17 January 2005, para. 667.
Encyclopedia Britannica, Facts about Serb: Croatia, available at
http://www.britannica.com/facts/5/47667/ts-about-Serb-Croatia-as-discus…
4361364.On the other side, Serbs have also been recognized by the Applicant as a national
minority group, and prior to 1990 were recognized as a people and a constituent element
of the Croatian State. 1330At the time relevant for the current counter-claims, the
Constitutional Law on Human Rights and Fr eedoms and the Rights of National and
Ethnic Communities or Minorities in the Repub lic of Croatia provided various rights to
Croatian Serbs as a national and ethnic group residing in Croatia, including cultural
autonomy and proportional representation in governmental bodies (which were
subsequently abolished, as noted in Chapter XIII).
1365.Similarly, Serbs in Croatia have been r ecognized as an ethnic minority group or a
people in censuses conducted during the tim e of the SFRY, at the beginning of the
1990s, as well as in those s ubsequently conducted by an independent Republic of
Croatia. 1331They are also recognized as an ethnic and national minority group by an
independent non-governmental source - the Mi nority Rights Group International World
Directory of Minorities and Indigenous Peoples. 1332
1366.It is thus respectfully submitted that Serb s in Croatia are a pr otected group for the
purpose of the Genocide Convention.
3. The Victims of the Operation Storm were a Part of the Protected Group
1367.The present counter-claim concerns the ge nocide that was c onducted by the Croatian
Government against a part of Serbs in Croatia, which are a protected group under the
Genocide Convention. Specifically, it is s ubmitted that the Croatian Government
targeted the Serbs living in the area of Kraj ina, which is geographi cally distinct area.
Krajina covers areas which were at the relevant time UN Sectors North and South
(Northern Dalmatia, Kordun, Lika and Banija).
1333
1368.In Chapter II, on the applicable law pertaining to genocide, the Respondent outlined
three interpretations of th e concept “part of a group”, stipulated by the Genocide
1330See supra Chapter V, paras. 459–464.
1331Republic of Croatia – Central Bureau of Statistics, 2001 Census, Population by Ethnicity by
towns/municipalities, available at http://www.dzs.hr/default_e.htm
1332UNHCR, Refweb, Minority Rights Group International World Directory of Minorities and Indigenous
Peoples, available at http://www.unhcr.org/refworld/country,,MRGI,,HRV,4562d8b62,49749d355,0….
1333See supra Chapter II, paras. 63-69.
437 Convention, that have been el aborated through the case-law to date: a) substantial part
of the group, i.e. a significant percentage of its members whose annihilation would have
1334
an impact on the group as a whole; b) significant part of the group, i.e. its prominent
1335 1336
representatives; and c) part of a group residing in a geographically limited area.
The Respondent respectfully submits that the Krajina Serbs satisfied all three
requirements for being considered a part of a protected group located in the
geographically limited area.
A. Substantial Part of the Group
1369.As noted in Chapter II, in addition to Krstić, and other cases where the interpretation of
the wording “in part” was discussed, the C ourt also had the opportu nity to stress the
significance of meeting the substantiality criterion in a given case. 1337This is the only
logical conclusion that stems from the aim of the Genocide Convention. 1338 As the
Court stated:
“In terms of that question of law, the Court refers to three matters
relevant to the determination of “part” of the “group” for the purposes of
Article II. In the first place, the intent must be to destroy at least a
substantial part of the particular group. That is demanded by the very
nature of the crime of genocide: since the object and purpose of the
Convention as a whole is to prevent the intentional destruction of groups,
the part targeted must be signi ficant enough to have an impact on the
group as a whole. That requirement of substa ntiality is supported by
consistent rulings of the ICTY and the International Criminal Tribunal
for Rwanda (ICTR) and by the Commenta ry of the ILC to its Articles in
the draft Code of Crimes against the Peace and Security of Mankind (e.g.
Krstić, IT-98-33-A, Appeals Ch amber Judgment, 19 April 2004, paras. 8-11
1334See, for example, ICJ, Case concerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007,
General List No. 91 para. 198; ICTY, Brđanin, IT-99-36, Trial Chamber Judgment, 1 September 2004, paras.
1335& 967; and ICTY, Jelisić, IT-95-10-T, Trial Chamber Judgment, 14 December 1999, para. 93.
ICTY, Jelisić, IT-95-10-T, Trial Chamber Judgment, 14 December 1999, para. 82 and ICTY, Nikolić,
13364-2-R61,Decision on Review of the indictment pursuant to Rule 61, 20 September 1995, para. 2.
1337See, foe example, ICTY, Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 590.
ICJ,Case concerning the Applicationtfe Convention on the Prevention andnishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Monteneg,J)dgment, 26 February 2007, neral List No. 91, para. 198.
1338Ibid.
438 and the cases of Kayishema, Byilishema, and Semanza there referred to;
and Yearbook of the International Law Commission, 1996 , Vol. II, Part
Two, p. 45, para. 8 of the Commenta ry to Article 17)”. (emphasis
added) 1339
1370.As pointed out by Nehemiah Robinson, “the aim of the Convention is to deal with
action against large numbers, not individuals even if they happen to possess the same
characteristics”. 1340 In other words, the destru ction of a part of the group “must be of
such a kind as to affect the entirety.” 1341 According to Special Rapporteur Benjamin
Whitaker, this threshold would be met in case of a “reasonably significant number,
1342
relative to the total of the group as a whole”.
1371.This position is well depict ed by the assessments conducted by the ICTY chambers in
Brđanin. The Trial Chamber in this case dealt with this issue on a somewhat larger
scale, by looking at crimes committed against members of two protected groups, that of
Bosnian Muslims and Bosnian Croats, within a number of municipalities. Prior to
addressing whether genocidal intent could ha ve been inferred from the scope of the
actual destruction of members of two prot ected groups, the Chamber first assessed
whether the total number of residents of the targeted communities belonging to the
Bosnian Muslim and Bosnian Croat group repr esented substantial pa rts of their entire
population residing in the territory of Bosnia and Herzegovina:
“The Trial Chamber finds that ther e is sufficient evidence that the
targeted parts of the groups were the Bosnian Muslims and Bosnian
Croats of the ARK. For the pur poses of analyzing whether the
requirement of substantiality is satisfied, since it is difficult to precisely
determine which municipalities belonge d to the ARK at any given time,
1339ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
1340s. 198 & 200.
N. Robinson, The Genocide Convention – Its Origins and Interpretation , Institute of Jewish Affairs, New
1341, 1949, pp. 17–18.
Letter from Raphael Lemkin to Dr. Kalijarvi, Senate Foreign Relations Committee, in 2 Executive Sessions
of the Foreign Relations Committee 370 (1976).
1342Whitaker Report: Review of Further Developments in Fields with Which the Sub-Commission Has Been
Concerned: Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of
Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6, 29-30 (1985), para. 29; see al so, for example, ICTYBrđanin,
IT-99-36, Trial Chamber Judgment, 1 September 2004, paras. 964 & 967.
439 it suffices that the Trial Chamber is satisfied that all thirteen
municipalities addressed in the Indictment and referred to as the relevant
ARK municipalities belonged to the ARK at any given time. According
to the 1991 census, there were 2,162,426 Bosnian Muslims and 795,745
Bosnian Croats in BiH. Of these, 233,128 Bosnian Muslims and 63,314
Bosnian Croats lived in the relevant ARK municipalities. Numerically
speaking, the Bosnian Muslims and Bo snian Croats of the relevant ARK
municipalities, on their own, constituted a substantial part, both
intrinsically and in rela tion to the overall Bosnian Muslim and Bosnian
Croat groups in BiH . The requirement of substantiality is satisfied, at a
minimum, by the relevant ARK muni cipalities, and it is therefore
unnecessary to inquire furt her into other relevant factors such as the
prominence of the targeted parts within the groups. The Trial Chamber is
satisfied that, in targeting the Bosnian Muslims and Bosnian Croats of
the ARK, the perpetrators intended to target at least substantial parts of
1343
the protected groups.”
1372.As already noted at the be ginning of Chapter XIII, according to the 1991 census there
were around 580,000 Serbs in Croatia who had constituted approximately 12% of the
1344
total population of the Republic of Croatia. There are no precise figures as to the
total numbers of Serbs in Croatia or about the total number of Serbs living in Krajina in
1995 at the time of operation Storm. This is due to the fact that Croatian army attacks,
including operation Flash in Western Slavonia in May 1995, 1345 forced a large number
of Serbs to leave the territory of Croatia which consequentially had an impact on the
validity of previously existing figures pertai ning to Serbian populat ion presence in the
area. However, in Chapter XIII it was noted that UN Reports at the time stated that
approximately 200,000 Krajina Serbs were forced to flee during operation Storm and
1346
that only 5,000 remained in Sectors South and North. This figure alone represents
roughly 30% of above stated 580,000 Serbs in Croatia reported in the 1991 census.
However, if one takes into consideration the pr eviously stated fact, i.e. that by summer
134ICTY, Brđanin, IT-99-36, Trial Chamber Judgment, 1 September 2004, paras. 964 & 967.
134R. Petrović, ‘The national composition of Yugoslavia’s population,, ugoslav survey, no. 1 (1992), p. 12.
134See supra Chapter XII.
1346The situation in the occupied territories of Croatia: Report of the Secretary-General,18 October 1995, UN
Doc. A/50/648, para. 27.
440 of 1995 a large number of Serbs living in the territory of Croatia have already been
forced to leave that territory, it is only logical to conclude that Krajina Serbs likely
made up significantly more than 30% of th e total number of Serbs in Croatia in 1995.
All of this is clear evidence of the fact that Krajina Serbs represented a substantial part
of the protected group - Serbs in Croatia.
1373.However, numbers are not the sole factor that should be taken into account in
determining whether part of a group could be deemed as substantial. The case-law of
the ICTY provided factors whose weight va ries depending on the circumstances of a
particular case. The Krsti ć case, as some of the f actors, discusses geographic
distinctiveness, size of the gr oup, its strategic position, its significance in the eyes of
population as a “safe area”, as well as the fact that only that particular group was in the
1347
area of control of the perpetrators.
1374.As will be shown below Krajina was geographi cally distinct area with very important
strategic position for both Croatia and the Krajina Serbs living in that area.
B. Geographically Located Part of a Group
1375.The possibility of a geographically limited scope of genocide was noted in the number
1348
of the ICTY judgments and the Trial Chamber in Krstić found that:
“…the killing of all members of th e part of a group located within a
small geographical area, although resulting in a lesser number of victims,
would qualify as genocide if carried out with the intent to destroy the part
of the group as such located in this small geographical area. Indeed, the
physical destruction may target only a part of the geographically limited
part of the larger group because the perpetrators of the genocide regard
the intended destruction as sufficient to annihilate the group as a distinct
1349
entity in the geographic area at issue.”
134ICTY, Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, paras. 590 & 597 and Appeals Chamber
Judgment (2004), paras. 15–17.
134See, for example, ICTY, Jelisić, IT-95-10-T, Trial Chamber Judgment, 14 December 1999, para. 83.
134ICTY, Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 590.
4411376.The position taken by the Trial Chamber of the ICTY was recognized as being a valid
interpretation from the very outset of the existence of the Genocide Convention. 1350
1377.The view that genocide may be co mmitted by destroying a group within a
geographically limited area was also endorsed by the Court in its Bosnia judgment. 1351
1378.A number of ICTY judgments that both preceded and followed Krstić have dealt with
events which took place in specific geographical regions following the same rationale –
the impact of action taken against a specific geographically located community. 1352
1379.The ICTY in Krstić also spelled out specifically th at the group or part thereof being
targeted could not represent an “accumulation of isolated individuals” but would rather
have to present a “distinct entity”. 1353
1380.In conclusion, the juri sprudence of the Court and of th e ICTY clearly shows that the
existence of certain ties among members of the geographically lo cated group, or part
thereof, providing it with the character of a distinct entity, as well as a certain degree of
permanency of the group’s presence in a given location, would warrant it being
considered part of a group protected under the Genocide Convention.
1381.Territory of Krajina was pre dominantly populated by Serbs. The Serb presence in these
areas is most commonly associated with the forming of the former Military Krajina, a
district border dividnig the Ottoman and the Habsburg Emprie, which was established in the
first half of the 16 century and inhabited by Se rbs escaping from the Turks. 1354 The major
development for Military Krajinawas the building of agarrison town of Karlovac in the late
1350In his Commentary of the Genocide Convention Nehemiah Robinson stated that a part of a group could be
interpreted as meaning part of a group residing in a given country, within a region or within a single community
“provided the number is substantial enough”. N. Robinson, The Genocide Convention – Its Origins and
Interpretation, Institute of Jewish Affairs, New York, 1949, pp. 17–18.
1351
ICJ,Case concerning the Application fe Convention on the Prevention and nuishment of the Crime of Genocide
1352nia and Herzegovina v. Serbia and Monteneg,rJ)dgment, 26 February 2007, Gneral List No. 91, para. 199.
See ICTY,Nikolić, IT-94-2-R61, Decision on Review of the indictment pursuant to Rule 61, 20 September 1995,
para. 27, and Trial Chamber Judgment, 18 December 2003, paras. 50-67; see also ICTY, Jelisić, IT-95-10-T, Trial
Chamber Judgment, 14 December 1999, para. 88 (The Trial Ca hmber found: “It is not therefore possible to conclude
beyond all reasonable doubt that the choice of victims arose from a precise logic to destroy the most representative
figures of the Muslim community in Brcko to the point of threatening the survival of that community ” (emphasis
added)); also ICTY,Sikirica et al,. IT-95-8-T, Trial Chamber Judgment, 13 November 2001, para. 33.
1353
1354ICTY, Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 590.
P.H. Liotta, The Wreckage Reconsidered: Five Oxymorons from Balkan Deconstruction, Lanham, Maryland:
Lexington Books, 1999, p. 38.
442 sixteen century. Around Karlovac , a region was set up in which peasant soldiers were not
only granted privileges but were also exempted from Croatian authority. 1355 Military
Krajina reached its peakby late eighteen century when itsterritory extendedto Lika, areas
around the Bosnian bo rder eastward along the Sava and Dn aube rivers bordering Serbia and
1356
across the Transylvan ian border with the Romanian principalities.
1382.Even though the Serbs presence isassociated with Military Krajia n, the first evidence of the
th
Serbian population settling in the rego in could be traced back to the 14 century, at which
1357
time the monasteries Krka and Krupa were built. Settlement of the Serbian population,
th th 1358
which began in the 16 century, continued throughout the 17century. All Serbs on these
1359
territories had a common denomin ation, being Orthodox Christians. The terms of
Habsburg military service in Military Krajinaattracted Serbs as providing freedom for the
Serbs to build Orthodox churches and to practice their religion. 1360 In addition to religion, the
church at the time was also the first institu tion to provide the local Serb population with
education. In addition to being a religious and cultural center, Krajina was also known as the
focus point of Serbian political life in Croatia. Despite various changes in its status and
territory, Krajina cot ninued to be the center of te hSerbian population in Croatia. 1361
1383.In 1991, Serbs constituted approximately 12% of the population of the Republic of
1362
Croatia. In UNPA Sectors South and North al one Serbs made up over 70% of the
1363
entire population in 1991.
1384.In light of the foregoing, Krajina Serbs did represent a distinct geographically located
community at the time of the events covered by the Counter-Memorial.
1355T. Judah,The Serbs: History, Myth and the Destruction of Yugoslviaw Haven: Yale University Press, 1997, p. 14.
1356See J. Lampe, Yugoslavia as History: Twice There was a Country , Cambridge: Cambridge University Press,
2000, 2 ed., p. 30; see also Map no.1.
1357
Serbian Orthodox Church, Diocese of Dalmatia, Monasteries, available at http://www.eparhija-
1358atinska.hr/Frames-e.htm.
S. Stanojevi ć, History of Serbs, Croats and Slovenians (Istorija Srba, Hrvata i Slovenaca), Napredak,
Beograd, 1920, pp. 55–57.
1359T. Judah, The Serbs: History, Myth and the Destruction of Yugoslavia , New Haven: Yale University Press,
1997, pp. 14–15.
1360J. Lampe, Yugoslavia as History: Twice There was a Country , Cambridge: Cambridge University Press,
nd
1361, 2 ed., p. 30.
M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia ,
American Journal of International Law, Vol. 86, No. 3 (1992), pp. 569–607.
1362R. Petrović, ‘The national composition of Yugoslavia’s population, 1991’,Yugoslav survey, no. 1 (1992), p. 12;
see also http://en.allexperts.com/e/r/re/republic_of_serb_krajina.htm
1363Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, p. 6.
443C. The Importance of Krajina for Croatian Serbs and Its Status as a UN Protected Area
1385.In addition to presenting a distinct geogra phical location populated by Croatian Serbs,
Krajina as such was of immense importan ce to Croatian Serbs. Serbs began their
settlements in Croatia in that territory, established their first churches and schools there,
and had developed themselves socially and politically on that particular territory.
Krajina was perceived as the roots of everything Serbian in Croatia.
1386.As already described in Chapters V and XII, Krajina was also a United Nations protected
area, consisting of Sectors No rth and South. In addition to UNPAs, the UN protection was
extended to so-called “pink zones”, areas wh ich were outside UNPAsbut were under Serb
control.1364Living in the territory that was under the UN protection, Krajina Serbs did not
expect that Croatia would develop a genocidal plan to take thatterritory and destroy them as a
group. While Krajina Serbs waited for a peacefulsolution, the Croatian side was not at all
interested in peaceful negotiations in Geneva but was rather getting ready to act upon a
genocidal order of President Tudjman that Serbs should for “all practical purposes
disappear”.1365 If one looks at and compares the strength and the composition of Croatian
armed forces and the forces of Krajina Serbs,it is obvious that Krajina Serbs never stood a
chance in protecting themselves. However, the sp ecial status of Krajina as a UN Protected
area made Krajina Serbs even an easier target of the subsequent genocide, as they were let to
believe that such status afforded them at letasome degree of safety from the Croatian forces.
D. Krajina Was Perceived as a Distinct Entity that Should Be Eliminated as Such
1387.The Respondent presented in previous paragraphs a number of reasons why Krajina and
Krajina Serbs were seen as a distinct entity that needed to be eliminated as such. An
additional factor that would have weight ed in favor of eliminating the Serbian
community in Krajina was the impact that its potential destruction would have had on
the Serb group in Croatia as a whole si nce Krajina was populated by a significant
percentage of its members. Primarily, Krajina was the historical center of Serbian life in
Croatia for centuries. For Serbs in Croatia, its destruction would mean the loss of a large
part of their historical and cultural roots in Croatia.
1364
1365or more, see Chapter XII.
See supra Chapter XIII, para. 1197.
4441388.Furthermore, Krajina was the first to resist the decision of the Croatian authorities to
separate from the SFRY. In the words of General Gotovina, Knin was the “centre of
greater-Serbian rebellion, psychologically and politically vital for rebel Serbs”. 1366For
President Tudjman, destruction of Knin was one of the priorities, 1367and one that was
ultimately accomplished since the Croatian police units cleaning the Knin area in 1995
reported that there was not “any lagging Serb population”. 1368
1389.Subsequent actions taken by Croatian authorities, including the planned repopulation of
the area with Croats, 1369the revocation of human rights guaranteed to ethnic groups
living in Croatia, 1370 and the expropriation of property and termination of tenancy rights
of local Serbs who fled, 1371 hampered and continue to ha mper the return of refugees
from the region and reestablishment of the Serbian community that existed in Krajina.
These subsequent actions also reinforce the conclusion that all previous actions against
the Krajina Serb community were taken with a view to destroying a distinct community
whose elimination would have a lasting impact on the group as a whole.
F. Conclusion
1390.Krajina was a specific geographical region within Croatia inhabited mostly by Serbs for
whom this region was their historical, religi ous and cultural center. Due to its position
and size, Krajina had a significant strategic importance both for the Republic of Croatia
and Serbs living in Krajina, and as such was given the status of a UN protected area. It
was shown that the Republic of Croatia perc eived Krajina as an entity that should be
1366
ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 67.
1367Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
Officials, on 31 July 1995 at Brioni p. 10 (Annex 52).
1368ICTY, Gotovina et al., IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation
Storm, Part II, p. 295.
1369
See Feral Tribune, Croatian President Franjo Tudjman: Demographic Problem Should Be Solved Militarily,
1370t, Croatia, July 4, 2003, available at http://www.ex-yupress.com/feral/feral214.html.
Human Rights Watch Report, Croatia: Impunity for abuses committed during Operation Storm and the
denial of the right of refugees to return to the Krajina.
1371“The law adopted in September 1995 relating to formerly occupied territory stipulated that tenancy rights
would be terminated if the tenants did not return to the ap artment within ninety days after the law became
effective. Only a month earlier, hundreds of thousands of Serbs previously resident in these areas had fled from
Croatia after Croatian forces regained control. Many elderly Serbs who remained were killed. At the time of the
law's adoption, it was obvious that genuine fear would prev ent Serb refugees from returning within ninety days
to repossess their apartments.” (Human Rights Watch, Croatia: A Decade of Disappointment, 4 September 2006,
available at http://www.hrw.org/en/node/11222/section/3).
445 eliminated and specifically targeted Krajina Serbs as such. In conclusion, the
Respondent submits that based on a number of f actors, such as the size of a part of the
group, its geographical position, and its promin ence, the Krajina Serb represented a
substantial part of the protected group of Serbs in Croatia whose destruction would have
had a lasting impact on the group of Serbs in Croatia as a whole.
4. Physical Elements of Genocide (Actus Reus)
1391.During the operation Storm, official organs of the Cr oatian Army committed genocide
against the Serbs in Krajina, as a part of the protected group of Serbs in Croatia, by
committing acts listed in Article II of the Genocide Convention. As shown previously,
during the operation Storm Croatian forces: a) killed members of the group, b) caused
serious bodily or mental harm to members of the group, and c) deliberately inflicted on
the group conditions of life calculated to bring about its physical destruction.
1392.The crimes committed thus satisfy the requirements of the actus reus of the crime of
genocide.
A. Killing Members of the Group
1393.It has already been pointed out in Chapter II that the determination of whether acts
covered under Article 2(a) have been committed usually does not pose difficulties in
practice. In sum, what is being required is to show: a) dead victims; b) that their death
was a result of unlawful acts or omissions of a perpetrator or his/ her subordinates; c)
1372
that the killing was intentional; a nd d) perpetrated with the required dolus specialis.
Recovery of actual bodies is not a requirement, but proof of the killing is however
necessary.
1394.It is evident from facts previously presente d that the killing of Serbs in Krajina, as
members of a protected group, was intenti onal and was committed by official Croatian
forces comprising the Croatian military and police. Artillery attacks were, as testified by
a number of witnesses (mainly UN peacekeepers) , indiscriminate in targeting Serbian
1372
ICTR, Akayesu, ICTR-96-4-T, Trial Judgment, 2 September 1998, paras. 589–590.
446 towns and villages and the civilian population living in them. As a result of this artillery
fire many Serb civilians lost their lives. At the same time, killings were also perpetrated
against those Serbs who were fleeing from th e artillery fire. The Serbian columns were
shelled and shot at from infantry weapons.
1395.Croatian Helsinki Committee for Human Rights report cites statements of witnesses
who testified to the fact that the Croatian air force dropped bombs directly on columns
of Serbs who were fleeing. 1373Evidence was adduced to show that Serb vehicles were
directly hit even once they had crosse d the Croatian border with Bosnia and
Herzegovina. Deaths that occurred in the process were a direct consequence of those air
attacks.
1396.Serbs who were fleeing as well as those who were unable to or did not wish to flee were
also killed by members of the Croatian for ces as they progressed with the takeover of
Krajina. Evidence presented in Chapter XIII shows that no reasonable explanation can
be found to justify such killings – victims were in almo st all cases civi lians posing no
threat to the Croatian forces. Moreover, such summary killings did not stop once
combat activity ceased, but continued in the months that followed and, in some
instances, in the years that followed. It is th erefore obvious that all of the killings that
took place were not only intentional but also carried out with speci fic genocidal intent,
as will be shown below.
1397.Finally, all the killings were perpetrated by de jure organs of Croatia, either its Army or
police. The extent of organi zation and readiness of these forces was discussed above.
Evidence was also presented that shows that they even obst ructed the work of the UN
1374
forces and observers while the crimes were committed. All the preparations for the
operation Storm, as shown previously, enabled Croatian forces to have full control over
the territory of Sectors South and North. Be ing in full control, the Croatian forces
specifically targeted and killed the Serbs, in line with the order issued by President
Tudjman that the Serbs must “to all practical purposes disappear.”
137See supra Chapter XIII, paras. 1242–1257.
137See supra Chapter XIII, paras. 1237, 1263, & 1318–1319.
447B. Causing Serious Bodily or Mental Harm to Members of the Group
1398.Genocide against Krajina Serbs was also committed by causing serious bodily or mental
harm to members of the group. The following acts have been, among others, understood
by the case law to lead to serious bodily an d mental harm: a) enslavement, starvation,
deportation and persecution … detention in gh ettos, transit camps and concentration
camps in conditions which were designed to cause … degradation, deprivation of their
rights as human beings, and to suppress them and cause them inhumane suffering and
1375 1376
torture; b) torture and persecution; c) harm that seriously injures the health, causes
1377
disfigurement or causes any serious injury to the external, internal organs or senses;
and d) sexual violence including rape, interrogations combined with beatings, threats of
1378
death. Furthermore, as theTrial Chamber in theBlagojević case noted:
“…the trauma and wounds suffered by those individuals who managed to
survive the mass executions… The fear of being captue rd, and, at the moment
of the separation, the sense of utter helplessness and extreme fear for their
family and friends’ safety as well as for their own safety, is a traumatic
1379
experience from which one will not quickly – if ever – recover.”
1399.In August 1995, the Krajina Serbs were subject to many of the above-mentioned acts that
caused serious bodily and mental harm to them. Serbs from Knin were systematically shelled
1380
on 5 and 6 August 1995. Those that afterwards remained in Sectors South and North were
killed outright by the Croatian Army and police, while those that found themselves in
convoys were shelled by Croatian forces both from land and air. 1381 A number of people were
seriously injured while being bombed by the Croaatn i forces. Almost the entire Krajina Serb
population was forcibly and systematically expelled from their homes. They were beaten
while escaping, and were subjected to inhuman teeatment and threats of death. Evidence was
also adduced that shows that a number of Se rbs who survived the executions organized and
performed by Croatian forces were seriously wounded.
1375A-G Israel v. Eichmann (1968) 36 ILR 5 (District Court, Jerusalem), p. 340.
1376ICTR, Akayesu, ICTR-96-4-T, Trial Judgment, 2 September 1998, para. 503.
1377ICTR, Kayishema and Ruzindana , ICTR-95-1-T, Trial Judgment, 21 May 1999, para. 109; and ICTR,
Semanza, ICTR-97-20-T, Judgment and Sentence, 15 May 2003, para. 320.
1378
1379ICTY, Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 516.
1380ICTY, Blagojević et al., IT-02-60-T, Trial Chamber Judgment, 17 January 2005, para. 647.
1381See supra Chapter XIII, paras. 1217–1228.
See supra Chapter XIII (killings in columns paras 1242-1257; killings in Sector South paras. 1261–1300,
killings in Sector North paras. 1301–1311).
4481400.Serbs who found themselves in columns were targeted by both official forces and
Croatian civilians who were thro wing stones at them along the way. 1382Serbs were
forced to watch their friends and family members being killed while at the same time
1383
being torn with guilt for being complete ly powerless to prevent their deaths. They
were faced with death on every route that they took. The behavior of Croat forces
induced among Krajina Serbs the sense of ut ter helplessness and extreme fear for the
lives of their family members and their own lives.
1401.Moreover, a number of Serbs who stayed behi nd were summarily executed before their
neighbors. Others were wounded but managed to survive. Remaining Serbs lived in
constant fear that their time might be up w ithin the next hour or the next day. Those
forced to leave their homes had to watch th eir villages burn, to accept that neither they
nor their children would ever be able to return, and to accept uncertainty of their
survival and the survival of their families. Each of these acts alone, and taken together,
caused serious bodily and mental harm to Krajina Serbs.
1402.It is therefore respectfully submitted that the crimes inflicted upon Krajina Serbs fulfill
legal requirements posed by Article II(b) of the Genocide Convention.
C. Deliberately Inflicting on the Group Conditions of Life Calculated to Bring about Its
Physical Destruction in Whole or in Part
1403.An act of deliberately inflic ting conditions of life calculated to bring about the group’s
physical destruction is the act which does not immediately lead to physicaldestruction of a
1384
group’s members but which “ultimatelyseek[s] their physical destruction”. Point (c) of
Article 2 of the Genocide Convention accordingly does not require proof that the actual
destruction was achieved as it deals with acts that produce their ultimate effects at a later
point in time. As found bythe District Court of Jerusa lem in the Eichmann case:
“We do not think that conviction on the second Count [i.e., imposing
living conditions calculated to brin g about the destruction] should also
include those Jews who were not save d, as if in the case there were two
138See supra Chapter XIII, para. 1242.
138See supra Chapter XIII, paras. 1217-1228 & 1261–1311.
138ICTR, Akayesu, ICTR-96-4-T, Trial Judgment, 2 September 1998, para. 505.
449 separate acts – first, su bjection to living conditi ons calculated to bring
about their physical destruction, and later the physical destruction
1385
itself.”
1404.According to the practice of the ad hoc international tribunals, infliction of conditions
of life calculated to bring about destruction implies, among other things: a) subjecting a
group of people to a subsistence diet; b) sy stematic expulsion from homes; c) reduction
of essential medical services below minimum requirement or their denial; d) rape; and
e) creation of circumstances th at would lead to a slow d eath, such as lack of proper
1386
housing, clothing and hygiene or excessive work or physical exertion.
1405.As with other acts of genocide, such acts would have to be committed with genocidal
1387
intent and deliberately or, according to Nehemiah Robinson, with premeditation
related to creation of conditions of life. The expression “calculated” signifies that such
conditions are, to the perpetrator, “the pr incipal mechanism used to destroy the group,
rather than some form of ill-treatment th at accompanies or is incidental to the
1388
crime”.
1406.As shown in Chapter XIII, killings and in flicting serious bodily and mental harm to
Serbs in Krajina were accompanied by subj ecting the Serbs to conditions of life
calculated to bring about the group’s destruction. While on the one hand, killings were
perpetrated by indiscriminate ar tillery attacks, the same ar tillery attacks, on the other
hand, created such conditions of life to the Kr ajina Serbs that they have to leave their
1389
homes and other property that we re later looted and destroyed. The systematic
expulsion of almost all Serb s from their homes was also achieved by moving lines of
artillery attack in such a way that it was impossible for the Serbs to remain.
1385
1386A-G Israel v. Eichmann (1968) 36 ILR 5 (District Court, Jerusalem), para. 196.
See ICTR, Akayesu, ICTR-96-4-T, Trial Judgment, 2 September 1998, para. 506; see also ICTR, Kayishema
and Ruzindana, ICTR-95-1-T, Trial Judgment, 21 May 1999, para. 116; and ICTY, Brđanin, IT-99-36, Trial
Chamber Judgment, 1 September 2004, para. 619.
1387N. Robinson, The Genocide Convention: A Commentary, New York, Institute for Jewish Affairs, 1960, pp. 60
& 63-64 cited in Schabas, W. Genocide in International Law: The Crimes of Crimes , 2 nded, Cambridge
University Press, Cambridge, 2009, p. 291.
1388
Discussion Paper Proposed by the Co-ordinator, Article 6: The Crime of Genocide, UN Doc. nd
PCNICC/1999/WGEC/RT.1, in W. Schabas, Genocide in International Law: The Crimes of Crimes , 2 ed,
1389ridge University Press, Cambridge, 2009, p. 291.
See supra Chapter XIII, paras. 1217–1228.
4501407.Furthermore, evidence was presented that Croatian forces systematically killed and
burned Serb livestock, poisoned Serbian wells and looted everything that could be used
for survival of the Serbs. In ternational observers noted that Croatian forces even took
wood that was prepared by the Serbs for the upcoming winter. A witness from the UN
who was on the ground at the timetestified that Serb townsand villages became virtually
unlivable by the actions that took place after the fighting. 1390 Thus, knowing that winter
laid ahead, the Croatian forces destroyed Serb houses so that the Serbs would have no
place to shelter if they ever try to return. They killed and burned the livestock of the
fleeing Serbs so they would not have anything to eat, polluted their wells so they would
have nothing to drink, and took away th e stored wood so they would freeze.
1408.The international observers no ted that such destruction of Serbian households was so
systematic that it had to have been pla nned and methodically implemented. As already
noted, the ECMM report from November 1995 noted that more than 17,000 Serbian
houses were destroyed and looted. 1391This indicates that the destruction and looting of
Serb houses was one of the methods used fo r achieving the desired goal rather than
being a side effect of ongoing combat activity.
1409.The immensity of acts c onducted in the overall c ontext of the operation Storm suggest
that the perpetrator’s intent when conducting them was not only the expulsion or mere
dissolution of the Krajina Serb s but the physical de struction of part of the group of
Croatian Serbs by way of inflicting on that pa rt conditions of life calculated to bring
about its physical destruction. A simple fact that a very small number of Serbs were left
in the territory of Krajina after the indiscriminate shelling, killings and expulsion shows
that the community of Krajina Serbs was dest royed already at that time, namely even
before the Croatian forces started killing the few remaining elderly Serbs who stayed in
Sectors South and North.
1410.It is respectfully submitted that the above described acts perpetrated against Serbs
during operation Storm amounted to the deliberate infliction on the group of the
conditions of life calculated to bring about its physical destruction, as envisaged by the
Article II(c) of the Genocide Convention.
1390
1391ee supra Chapter XIII, para. 1317.
See supra Chapter XIII, para. 1325.
4511411.In addition, the systematic expulsion of practically all Krajina Serbs from Sectors South
and North, performed concurrently with kill ings and infliction of serious bodily and
mental harm, shows without a doubt that th e killing and the inf liction of bodily and
mental harm was done with a genocidal intent.
5. Existence of Genocidal Intent to Destroy a Substantial Part of the Group
1412.The Respondent will now deal with the most important question that will put together
all previously stated arguments, namely that acts ( actus reus) already analyzed were
actually carried out with specifi c, genocidal intent to dest roy the part of the group of
Serbs in Croatia as such.
1413.The evidence available in relation to the operation Storm speaks to the fact that the said
operation and the subsequent actions of th e Croatian authorities were conducted with
intent on the part of the Croatian leadership to destroy a substantial part of the protected
group of Serbs in Croatia as such. This is visible first and foremost from the Brioni
transcripts which testify directly to the ex istence of a genocidal intent, explicitly
expressed by the President of Croatia Fr anjo Tudjman, who was by law the Supreme
Commander of all Croatian armed forces. At the same time, the Brioni Transcripts
testify to the existence of a plan to implement that genocidal intent.
A. Brioni Transcripts
1414.In Chapter XIII, pertaining to th e facts related to the operation Storm, relevant parts of
the Brioni transcripts were already cited. 1392From the transcript it can be seen that at the
meeting at the Brioni top civilian and milita ry leadership envisaged a plan to destroy
Krajina Serbs. The course of the entire meeting and the ideas exchanged and accepted
by participants show that genocidal intent existed with the President Tudjman and was
either shared or, at least, not contested by the rest of the Croatian leadership.
1415.During the meeting at Brioni, President Tudj man instructed his subordinates to pretend
to guaranty to Serbs their civil rights 1393and reminded military leaders that Knin did not
suffer as other Croatian cities did and that this was the opportunity to rectify this. 1394
139See supra Chapter XIII, paras. 1195–1204.
139See supra Chapter XIII, para. 1203.
4521416.Most significantly, the following words uttered by President Tudjman at the Brioni
meeting demonstrate a clear e xpression of the genocidal inte nt: “[w]e have to inflict
such blows that the Serbs will to all practical purpose disappear, that is to say, the areas
we do not take at once must capitulate within a few days. ”1395
1417.This specific genocidal intent, as expre ssed by President Tudjman, was aimed at the
above defined part of the protected group of Serbs in Croatia, the Krajina Serbs, which
is obvious from the following words of Mr . Tudjman: “let us discuss whether we will
undertake an operation tomorrow or in the next few days to liber ate the area from
1396
Banija to Kordun to Lika and from Dalmatia to Knin.”
1418.Participants of the meeting atBrioni were members of thetop political, military and police
leadership of Croatia. Only at such level could the genocidal plan be developed and
implemented. President Tudjmanclearly stated that plan forthe operation existed and that
1397
the final decision will be adopted when a llthe assessment and pr oposals are presented.
1419.Presence of President Tudjman at the meeti ng was of particular importance as he was
the unquestionable leader of Croatia and its ruling party, the HDZ, and the Supreme
Commander of Croatian forces at the time. Equally important was the presence of the
people who later implemented the genocidal orders of Mr. Tudjman, such as Ante
Gotovina, Commander of the Split Military District and the overall operational
commander of the operation Storm in the southern portion of the Krajina Region, 1398
and Mladen Markač, Commander of Croatia’s Special Police. 1399
1420.Participants of the meeting were aware of th e criminal nature of the action they were
planning and had thus devised in advance ways how to hide the action from the
international community, 1400 as they were certain the UNCRO will try to stop the
operation that implied the killings of Krajina Serbs. 1401
1394
1395See supra Chapter XIII, para. 1217.
Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
Officials, on 31 July 1995 at Brioni p. 2 (Annex 52).
1396Ibid. (emphasis added).
1397Ibid.
1398See ICTY, Gotovina et al, IT-06-90-T, Amended Joinder Indictment, 17 May 2007, para. 4.
1399Ibid., para. 10.
1400
1401See supra Chapter XIII, para. 1195.
Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
Officials, on 31 July 1995 at Brioni p. 32 (Annex 52).
4531421.The words of President Tudjman, that is, the “Infliction of such blows that the Krajina
Serbs would disappear”, is a direct order gi ven to subordinates that the Serbs should be
physically destroyed. These words were utte red among other members of the criminal
enterprise on what they thought was a secr et meeting. President Tudjman wanted his
subordinates to understand his orders and the use of the word “dis appear” is in such
context very clear. The subsequent acts of the Croatian forces, such as air attacks
targeting unprotected women and children that were running for their lives, demonstrate
that the Croatian commanders down the hierar chy understood very clearly the words of
President Tudjman as an order to physically destroy the Krajina Serbs and implemented
those words through their orders to the troops under their command.
1422.It is therefore submitted that the C ourt should read and understand the words
“disappear”, uttered by President Tudjman, in their plai n meaning, i.e. as they were
spoken. These words are, thus, a clear expressi on of the genocidal intent to destroy the
Krajina Serbs and a clear order to Mr. Tudj man’s subordinates to carry out the task
given to them by their president. Accordingl y, all the actions subs equently taken were
carried out in the execution of the said order, which was genocidal in its substance.
B. The Magnitude of the Operation Storm
1423.The existence of the genocidal plan is further confirmed by the magnitude of the
operation Storm, carried out in order to implemen t the genocidal intent devised by
President Tudjman, as well as by the attitude that Croatia simultaneously expressed with
regard to the possible peaceful solution of the conflict.
1424.The operation Storm was characterized by massivene ss, complexity of operations,
involvement of various Croatian structures, considerable preparations and planning over
a long period of time, all under the direction of the top governing bodies of the Republic
of Croatia. Its goal was to deal with the “S erbian problem” in Croatia and this goal was
to be implemented by attacking and destroying the most prominent part of the group of
Serbs in Croatia – Krajina Serbs, by inten tionally targeting and taking over Knin – the
symbol of the Serb presence in Krajina – a nd by making sure that neither Knin nor the
rest of the Krajina restore itself ever again as a predominately Serb areas.
4541425.The operation Storm was prepared long in advance, which the Respondent explained in
Chapters XII and XIII of this Counter-Memo rial. However, while these preparations,
and even the decision to attack the Krajin a region, cannot, by themselves, be viewed as
evidence of the genocidal intent, it is clea r that at the Brioni Meeting that intent
crystallized in the words spoken by Pres ident Tudjman that Serbs should “to all
practical purposes disappear”.
1426.Here, a parallel can be made with the take over of the Srebrenica Enclave, where both
the ICTY and the Court concluded that the attack of the Bosnian Serb Army on the
Srebrenica Enclave was not genocidal in its beginning, but that the necessary intent was
established after the change in the m ilitary objective, on about 12 or 13 July. 1402 In the
present case, the existence of the genocidal intent is even more obvious that in the case
of Srebrenica, since the words of Presiden t Tudjman uttered at the Brioni Meeting
undoubtedly confirm that intent.
1427.Once the plan was devised and the intent was established, Croatia made sure that it was
effectively put into practice. As has b een pointed out in Chapter XIII, over 150,000
members of the well-trained and well-equipp ed Applicant’s armed forces attacked
1403
approximately 30,000 members of the SVK forces. The attacking forces included
regular forces of the Croatian army, Military Police and Croatian Special Police Force,
as well as parts of the Army of Bosnia and Herzegovina which provided support. A
combination of various military units was engaged in order to make sure the operation
was a success – infantry, artillery, rocket la unchers, anti-aircraft defense force, air force
(planes and helicopters), and engineers. 1404 In addition, Croatia used various means of
psychological warfare intended to create fear with the Serbs from Krajina. 1405It is thus
no surprise that the entire operation Storm lasted only 4 days and that the main goal, the
takeover of Knin, was fulfilled within 30 hours from the onset of the operation. 1406
1402See ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List
140391, para. 295.
1404See supra Chapter XIII, para. 1213.
See, for example, A.Gotovina, Offence Battles and Operations of HV and HVO (Napadni bojevi i operacije
HV i HVO), Zapovijedništvo zbornog područja Split, Knin, 1996, pp. 71–72.
1405See supra Chapter XIII, paras. 1202–1203.
1406See supra Chapter XIII, para. 1213.
4551428.In addition, once the plan to destroy the Serbs from Krajina was made, the Applicant
directed its foreign policy activities in such a way as to ensure that the genocidal plan
was implemented, while at the same time some formal justification for the Applicant’s
actions is created. Thus, the Applicant rejected every opportunity for a peaceful solution
for Krajina and sent its representatives to the peace talks in Geneva to only pretend to
1407
negotiate.
C. Facts which Further Confirm the Existence of the Genocidal Intent
1429.In the preceding paragraphs, the Respondent has showed that the acts committed against
Serbs in the operation Storm and the following months were committed with the
genocidal intent, clearly expressed by Presid ent Tudjman at the Br ioni Meeting, and as
part of the genocidal plan adopted at that meeting. The Respondent will now show that
the existence of the genocidal intent is fu rther confirmed by: a) the nature of the
committed acts; b) deportation of practically all Krajina Serbs and c) the scale of the
destruction of Serbian homes and other property.
1408
1430.It should be stressed, however, that, in accordance with the pr actice of the Court,
none of these elements could prove the ge nocidal intent by itself, either viewed
individually or collectively, since all thes e elements could equally, without other
evidence, indicate the existence of a discriminatory intent, instead of a genocidal intent.
1431.Nevertheless, in the present case, the Res pondent has already proven the existence of
both the genocidal plan and the genocidal in tent and, thus, all th e additional elements
that will be discussed infra merely emphasize that inte nt. Accordingly, although these
elements are not sufficient to prove the genoc idal intent by themselves, when they are
viewed in conjunction with the order of Pr esident Tudjman that Serbs should “to all
practical purposes disappear”, they undoubt edly confirm that genocide has been
committed against the Serbs from the Krajina region.
140See supra Chapter XIII, paras. 1195–1196.
1408“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 eviden ce of its existence, it would have to
be such that it could only point to the existence of such intent”,Case concerning the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, 26 February 2007, General List No. 91, para. 373; see also Chapter II, paras. 46–58.
4561. Nature of the Committed Acts, in Particular Killings
1432.Chapter XIII of this Counter-claim shows that the killings of Serbs where systematically
done both during and after the operation Storm. In the Report on the situation of human
rights in the territory of the former Y ugoslavia, submitted by Mrs. Elisabeth Rehn,
Special Rapporteur of the Commission on Human Rights, killings of civilians have been
listed as number one human rights violation committed during and after the operation
Storm. 1409According to the information gath ered by the Special Rapporteur, the
“common murder method was shots in the back of the head”. 1410
1433.The existence of the intent to physically de stroy Serbs is further confirmed by the fact
1411
that Croatian planes bombed columns of Serb civilians fleeing Croatia. Furthermore,
not only that the Croatian planes bombed the refugee columns in the Croatian territory,
1412
they even pursued them after they crossed into Bosnia and Herzegovina. There is no
other explanation for these actions than that they were committed in the execution of the
genocidal plan to destroy the Serbs.
1434.Killings of Serbs that continued long after the operation Storm was over also suggest
that the true goal of the Croatian actions in Krajina was to eradicat e all of the Krajina
Serbs. Summary executions and disappearances of elderly and infirm were frequently
reported in this period. 1413 In December 1995, the UN Secretary General reported
deaths of more than 230 persons in Sectors South and North. 1414
1435.As noted by the Human Rights Watch:
“Despite the lack of conclusive evid ence of the exact number of executions
and deaths, it is clear that many execution-style killings took place during
and after the Krajina offensive. Numero us bodies of Serbs -- many of whom
were elderly or handicapped -- were found with bullet holes in the back of
1409Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, UN Doc. S/1995/933, 7 November 1995, p. 8.
1410Ibid., p. 9.
1411See supra Chapter XIII, paras. 1217–1228.
1412
1413See supra Chapter XIII, paras. 1254–1257.
See Chapter XIII, para. 1281 et seq ; See also NGO “Veritas”, Bilten No. 114, August 2007, Žrtve «Oluje» i
1414oluje, pp. 5-13 (Annex 62).
Report on the situation of human rights in Croatiapursuant to Security Council Resolution 1019 (1995),
21 December 1995, UN Doc. S/1995/1051, p. 3.
457 their heads after the Krajina area was placed under Croatian government
control. Some bodies werealso burned, particularlythose who remained in
houses that were set alightduring or after the offensive; some of the victims
may have been burned alive while others may have been shot before their
houses were burned. A ha ndful of bodies found by U.N. observers were
reportedly mutilated. For example, a body found in one village reportedly
had been decapitated and the head waslater found in a pigsty. The cause of
death in these cases, in addition to the fact that most deaths occurred long
after the region was firmlyunder the control of the Croatian Army, indicate
that these were executions and not civilain deaths that were incidental to the
1415
pursuit of a legii ate military goal.”
1436.It is hard to contemplate any alternative reason for the killings of old Serb civilians who
could not leave their homes in Krajina othe r than the intent to destroy the group of
Krajina Serbs for all times. As a matter of fact, even though th e Serbs from Krajina
were already destroyed as a group when the great majority of Se rbs was earlier forced
out of Croatia, and although those who remained were neither a threat to Croatia in any
sense, nor in any way capable of restoring the Serbian community in Krajina, Croatian
forces continued to kill Serbs who remain ed as a message to those Serbs who fled
Croatia that they should never return or they would meet the same fate.
1437.It is thus submitted that the very nature of the described killings committed both during
and after the operation Storm, in particular those of ci vilians, including women and
children in the refugee columns, and those of old and unprotected Serbs who remained
behind, confirms that the crimes against the Krajina Serbs were committed with the
intent to destroy them as such.
2. Deportation
1438.In its Judgment in the Bosnia case, the Court found that the “ethnic cleansing”,
understood to mean “rendering an area ethnically homogeneous by using force or
intimidation to remove persons of given groups from the area”, may constitute genocide
1415
Human Rights Watch Report, Impunity For Abuses Committed During Operation Storm and the Denial of
the Right of Refugees to Return to the Krajina, 1996, available at
http://www.hrw.org/legacy/reports/1996/Croatia.htm#P332_81851.
458 if it can be characterized as “deliberat ely inflicting on the group conditions of life
calculated to bring about its physical destruct ion in whole or in part” and only if such
action is carried out with the necessary specific intent, that is to say with a view to the
1416
destruction of the group, as distinct from its removal from the region.
1439.In the present case, in addito i n to being killed and physically and mental ly harmed, Krajina
Serbs were placed in such condtiions of life that forced themto flee Croatia, which resulted
in their destruction as the group which had lived in Croatia since XVI Century.
1440.According to the practice of the ICTY, the forced character of the acts could be deduced
1417
from the absence of a “genuine choice”. Genuine choice would not be possible in the
presence of direct physical force, “threat of force or coercion, such as that caused by
fear of violence, duress, detention, psychol ogical oppression or abuse of power against
… persons… or by taking advantage of a coercive environment” 1418such as shelling of
civilian objects, burning of civilian property, and commission of or the threat to commit
other crimes “calculated to te rrify the population and make th em flee the area with no
hope of return” 1419.
1441.According to the UN reports, approximate ly 200,000 persons fled from Krajina to
Serbia and the Republic of Srpska (in Bosnia and Herzegovina). 1420 This population was
first subjected to a well developed psychological campai gn which included spread of
information on the advancement of Croatia n forces, disinformation on decrease in
ability of RSK forces to provide them w ith protection, fabri cated calls of RSK
authorities to leave Krajina in order to create a negative psychological climate. 1421 This
alone induced sufficient level of fear in some members of Krajina community that made
1416
ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
1417. 190.
ICTY, Krnojelac, IT-97-25, Appeals Chamber Judgement, 17 Septembar 2003, para. 229; see also ICTY,
Blagojević et al., IT-02-60, Trial Chamber Judgement, 17 January 2005, para. 596; see also ICTY, Brđanin, IT-
99-36, Trial Chamber Judgment, 1 September 2004, para. 543; see also ICTY, Stakić, IT-97-24, Appeals
Chamber Judgment, 22 March 2006, para. 279.
1418ICTY, Stakić, IT-97-24, Appeals Chamber Judgment, 22 March 2006, para. 281.
1419ICTY, Simić et al., IT-95-9/2, Trial Chamber Judgement, 17 October 2002, para. 126.
1420Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
1421omic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, p. 7.
As cited in ICTY, Gotovina et al. , IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces
and Operation Storm , Part II, Use of Psychological Operations (PsyOps) by the Split MD during and after
Operation OLUJA (Storm), pp. 194–206.
459 them leave even before th e beginning of the operation Storm. The largest wave of
refugees, however, took plac e between the first and the se cond day of the full blown
operation Storm 1422, when the Croatian artillery indiscriminately shelled Knin and other
bigger towns in Krajina.
1442.According to the estimates, in the aftermath of the operation Storm no more than 5,000
1423
Serbs remained in Sector North and South , while elderly and disabled made up for
1424
approximately 75% of the remaining population.
1443.As it was explained in Chapter XII, Krajin a Serbs knew quite well what would happen
to them if they were caught by the Croa tian army. Tactical operations that were
conducted in preparation of the operation Storm completely eradicated Serbs from the
territories under attack. The Croatian forces found it ne cessary even to slaughter
animals belonging to Serb households. These actions of the Croatian forces, most
vicious being the attacks on Masleni ca, Medak Pocket and the operation Flash 142,
clearly demonstrate that it would be nothing but cynical to claim that Serbs should have
stayed and waited for Croatian forces during the operation Storm.
1444.That the decision of most of the Serbs to flee before the Croatian forces was justified is
confirmed by the UN Secretary General report, describing the fate of some Serbs who
could not leave Knin on time:
“19. Nearly 1,000 persons, including t hose without the means to depart,
sought and were provided refuge in the UNCRO Sector South
headquarters compound at Knin, commencing on the evening of 4
August. Following their arrival, th e United Nations attempted to
negotiate their safe passage to the Federal Republic of Yugoslavia, in
accordance with their wishes, with the Government of Croatia. The
1422
As cited in ICTY, Gotovina et al. , IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces
1423Operation Storm, Part II, p. 196.
Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, p. 7.
142Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, p. 7.
142See supra Chapter XII, paras. 1123–1134 & 1142–1153.
460 evacuation was stalled by the demand of the Croatian authorities that all
military-age men be surrendered for investigation of possible complicity
in war crimes.” 1426
1445.The UN report further described how realistic was the possibility that the Serbs would
be left alive by Croatian forces if they chose to stay behind:
“… the majority of persons who received passes to leave the camp, came
running back to save their own necks just a few days later. They were
beaten and maltreated before their return back to the camp. In spite of the
fact that these people wished to rema in at their houses in the beginning,
they changed their minds later on. They saw how their houses were burnt
and property taken away. Most of them where even physically abused…,.
Most of them left the Croatia in September… Around 800 persons left
UNCRO camp for the FRY on Septem ber 16, 1995. Before leaving they
had to sign the following statement: ‘I declare that I leave the territory of
Croatia on my own will and enter the te rritory of Republic of Serbia. By
this statement I also declared that I was properly taken care of and in a
humane way brought to the border crossing.’ Many persons seriously
opposed the signing of the statement adding that they did not wish to
1427
leave Croatia on their own will…”
1446.That the decision of the majority of the Se rbs to flee Krajina wa s justified was later
confirmed also by the fate that bestowed t hose who did stay behind, even if they were
mostly old and infirm people. 1428
1447.It is therefore submitted that the deportati on of Krajina Serbs on such a massive scale,
committed together with the killings and the infliction of bodily and mental harm,
further confirms the existence of the genocid al intent. The order of President Tudjman
was that Serbs should disappear and the Croa tian leadership knew that the combination
142Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mrs. Elisabeth
Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89 and
Economic and Social Council decision 1995/290, 7 November 1995, UN Doc. S/1995/933, para. 19.
142Croatian Helsinki Committee for Human Rights,ilitary Operation Storm and it’s AftZagreb, 2001, p. 22.
142See supra Chapter XIII, paras. 1261–1311.
461 of killings with the systematic expulsion of practically all of the Serbian population that
was not killed would inevitably result in the physical disappearance of the Krajina Serbs
as a group.
3. Scale of the Destruction of Serbian Homes and Other Property
1448.In Chapter XIII, the Respondent provided evidence on the massiveness, organized
character and systematic nature of the dest ruction of property that belonged to Serbs.
Evidence was provided that destruction incl uded not only houses but also, in the words
of witnesses observing such devastation: “every farm, every barn, and every annex”. 1429
1449.The destruction and looting la sted continuously for three to four weeks, but some
reports indicated that houses in Krajina were burning even more than five weeks after
the last combat activity had ended. 1430Hundreds of Serbian villages were set to fire and
the estimates show that as much as 73 per cent of Serbian households (which means
thousands houses and other properties) were destroyed. 1431Witnesses also testified to
large scale killing and burning of livestock and other animals, as well as of poisoning
wells in Serbian villages. 1432
1450.Looting of Serbian property was committed on almost the same scale. The UN Special
Rappourteur reported that vi rtually every abandoned Se rb property was looted. 1433
International observers knew, even at the time of the events, that the real motivation of
Croatian forces to restrict their movement was to commit more crimes and to continue
with killings, burning and looting. The Croa tian forces also restricted access to the
international observers in order to conceal the evidence of their criminal actions. 1434
1451.The destruction and looting of Se rbian property was perpetrated by de jure Croatian
1435
forces. The evidence on this was presented in Chapter XIII.
1429See ICTY,Gotovina et al.,IT-060-90, testimony of witness Herman Steenbergen, 30 June 2008, Transcript p. 5431.
1430See supra Chapter XIII, para. 1320.
1431See supra Chapter XIII, para. 1325.
1432See supra Chapter XIII, paras. 1312–1317.
1433
1434See supra Chapter XIII, para. 1317.
1435See supra Chapter XIII, paras. 1318–1319.
See supra Chapter XIII, paras. 1322, 1318–1319 & 1337.
4621452.It is submitted, thus, that the destruction an d looting of Serbian property during and, in
particular, after the operation Storm, was a part of the plan of the Applicant to destroy
the group of Krajina Serbs. As argued before , what is necessary for genocide to be
established is that the said destruction is carried out with the necessary genocidal intent.
In the present case, the intent was expr essed by President Tudjman in the Brioni
Meeting and the subsequent destruction of Serbian property only confirms the existence
of that intent, since the destruction was effected in order to prevent that Serbs ever
return to Krajina and reestablish themselves as a group on the Croatian territory.
C. Applicant’s Admission that the Events Connected with the Operation Storm
Constituted Violations of the Genocide Convention
1453.In its Application, submitted on 2 June 1999, the Applicant stated that the evacuation of
“Croatian citizens of Serb ethnicity in th e Knin region” [Republika Srpska Krajina]
amounted to “a second round of ‘ethnic cl eansing’, in violation of the Genocide
Convention”. 1436
1437
1454.Although this part of the Applican t’s claims was later withdrawn, and although the
Applicant cynically accused the FRY for this violation of the Genocide Convention, it is
submitted that paragraphs 2 and 33 of the Applicant’s Application instituting
proceedings represent an admission that genocide has been committed against the Serbs
from Krajina. It is further submitted that the Court should understand paragraphs 2 and
33 of the Application as the Applicant’s admi ssion against its own interest and give it
due weight in the deliberations in the present case.
6. Republic of Croatia is Responsible for the Genocide Committed against
Serbs in Croatia
1455.It was shown throughout Chapter XIII that genocide against Krajina Serbs, as a part of
the group of Serbs in Croatia, was perpetra ted by State organs of the Republic of
Croatia in terms of Article 4 of the IL C Articles on State Res ponsibility, which was
1436
1437ee Application instituting proceedings, paras. 2 & 33.
See Memorial, para. 1.06.
463 1438
found by this Court to reflect customary international law. The Brioni Transcripts
are the evidence that the genocidal intent ex isted on the part of President Tudjman, as
the person who held the highest position in Croatia at the time and was also the supreme
commander of the Croatian armed forces. Furthermore, the Brioni Transcripts show that
the intent was either shared, or at least not contested by other participants at the meeting
– persons who held some of the highest po sition in the governmental structures of
Croatia at the time.
1456.The transcript from the Brioni meeting is also a clear proof that the operation Storm was
devised and subsequently implemented in the field by top civilian and military
leadership of Croatia.
1457.The evidence was also presented that Croatian armed forces from four different Military
Districts were involved in the operation Storm and its aftermath. 1439 Testimonies of UN
observers confirmed that members of the Croatian army were directly involved in
killings, maltreatment, destruction and looting th at specifically targeted Krajina Serbs and
1440
their property. Croatian armed forces establishe d strong control over the territory
inhabited by Serbs soon after the operation Storm commenced and kept it throughout the
whole period in which the crimes were co mmitted. All units involved in the operation
Storm were under the control and command of the Croatian army and under the overall
control of the mastermind of the genocidalplan – Croatian President Franjo Tudjman.
1458.Finally, after the operationStormwas completed, the State organs of the Applicant enacted
laws whose only goal was to make sure that Kraijna Serbs, as part of the group of Serbs in
Croatia, would never reestablish themsee ls as a group on the Croatian territory.441
1459.It is thus submitted that genocide against the organs Krajina Serbs, as part of the group
of Serbs in Croatia, was committed by State of the Republic of Croatia, which makes
the Republic of Croatia responsible for the commission of genocide under the Genocide
Convention.
1438ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
paras. 385 & 398.
1439See supra Chapter XIII, para.1207.
1440See supra Chapter XIII, paras. 1316–1322.
1441See supra Chapter XIII, para. 1338–1346.
4647. Conclusion: the CroatianArmed Forces Committed Genocd ie against Krajina Serbs
1460.Genocide was committed against Krajina Serbs. This part of the group of Serbs in
Croatia was destroyed by a number of actions concurrently taken by the Republic of
Croatia. Serbs were subjected to killings perpetrated by members of Croatian armed
forces, both during and after the operation Storm. The victims of killings included
hundreds of old and infirm Serbs who we re unwilling or unable to escape in the
aftermath of the combat operations. These pe ople were not and coul d not have been a
security risk to Croatia. The only factor that was decisive for their elimination was that
they were ethnic Serbs.
1461.In the same vain, serious bodily and mental harm was inflicted on the Krajina Serb
civilians during takeovers of various locati ons in Krajina and even while they were
attempting to escape in order to save their lives. Helpless in the face of a great force,
Serbs were physically and psychologically maltreated by both members of Croatian
armed forces and Croatian civilians, attacked with significant force even after they had
left the Croatian territory and forced to watch their loved ones getting killed. This
amounted to one of the largest deportations of population during the wars of the 1990s,
which left over 200.000 persons without a roof over their head and a community to
belong to. And again, solely because they were Serbs from Krajina.
1462.These actions could not logically be explai ned in any other way than as mirroring the
genocidal intent with which the entire operation Storm was planned and executed. The
Meeting at Brioni and the agreement that was made between top civilian and military
leadership of the Applicant, to inflict su ch blows to Krajina Serbs so they would
disappear, represent direct evid ence of this genocidal intent. The nature of the killings
that took place, coupled with the infliction of serious bodily and mental harm and the
systematic expulsion of almost all Krajina Se rbs, confirm that the previously agreed
genocidal plan was methodically and thoroughly executed in the field. The existence of
this plan is visible from the extent of preparations that preceded the August 1995
operation, the extent of attention that was paid to all aspects of the operation, the extent
of forces that were used, and the use of psychological warfare, among other things. The
plan was, in fact, so well prepared that once it was executed, it left no chance for
Krajina Serbs to survive as part of Serbs in Croatia.
4651463.The sustainability of the result which th e Applicant achieved with the operation Storm
was ensured by the subsequent actions of the Croatian government, which deprived
Krajina Serbs of their rights to immovable property, created legal, administrative and
factual obstacles for their return to Croatia and their possible reestablishment as a group,
and repopulated Krajina with Cr oats who were granted righ ts over confiscated Serbian
property. The perpetrators of genocide not only enjoyed complete immunity from
criminal prosecution but were (and still are) celebrated as heroes, which only reaffirmed
the message that was sent to Krajina Serbs – that they were not wanted at the Croatian
soil and that their life would be threatened if they ever thought of reestablishing their
community in Krajina.
1464.In accordance with the evidence presented above, it is submitted that:
a) Acts listed in Article II, points (a), (b), and (c) of the Genocide
Convention were committed against Krajina Serbs, as a substantial
part of the national and ethnic group of Serbs in Croatia;
b) These acts were committed dur ing and after the operation Storm,
which was designed, planned and executed by the State organs of the
Republic of Croatia;
c) These acts were committed with the intent to destroy the said group,
according to the plan devised by the highest leadership of the
Republic of Croatia;
d) The Republic of Croatia is acco rdingly responsible for genocide
committed against Krajina Serbs as a substantial part of the national
and ethnic group of Serbs in Croatia;
8. The Applicant’s Responsibility for Conspiracy and Failure to Punish Genocide
A. Conspiracy to Commit Genocide
1465.In the previous paragraphs, the Responde nt has proved that the Applicant has
committed genocide against the Krajina Serbs. In addition, or in the alternative, the
Respondent submits that the Applicant is al so responsible for having conspired to
commit genocide.
4661466.Conspiracy connotes an agreement between two or more persons to commit a certain
offence. The offence is considered to have been committed as soon as an agreement
between the parties had been reached, i rrespective of whether the crime whose
commission was contemplated was actually carried out. One action taken in furtherance
of the agreed plan would do. Conspiracy does not require exis tence of a formal
agreement, but a mutual understanding between the parties. Pers ons involved had to
have entered into it willfully and with intent to agree and to carry out acts planned. 1442
1467.The analysis of the transcripts from th e meeting at Brioni, attended by Croatian
President Tudjman and the highest Croatian leadership, clearly shows that such an
agreement was reached between the participants at the meeting. This is evidenced by the
fact that none of the participants at the meeting contested President Tudjman’s request
that Krajina Serbs should disappear and that the participants proceeded to discuss
practical methods to achieve this goal. It is thus submitted that all of those present
willingly and knowingly entered into this agreem ent, even if some of them possibly did
not share the genocidal intent of their Pres ident. Moreover, the overview of the conduct
of the operation Storm and its aftermath shows that action had been taken by the official
organs of the Applicant, including those present at the Brioni Meeting, in furtherance of
the agreement that was reached at the meeting.
1468.Taking into consideration the position of the Court from the Bosnia case that conspiracy
to commit genocide is absorbed if genocide has indeed been committed, 1443it is
submitted that the Court should, at least, de clare that the Meeting in Brioni, and the
agreement reached at that meeting, represented conspiracy to commit genocide.
1469.If, however, the Court finds that ge nocide has not been completed ( quod non) because,
for example, the group of Krajina Serbs has not been destroyed, the Respondent submits
that the Court should find the Applicant re sponsible for conspiracy to commit genocide
in accordance with Article III of the Genocide Convention.
1442C.M.Othman, Accountability for International Law Violations: the case of Rwanda and East Timor,
Springer Berlin – Heidelberg, 2005, pp. 192-238.
1443ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,)Judgment, 26 February 2007, General List No. 91,
para. 380.
467B. Failure to Punish Genocide
1470.In addition, the Respondent submits that th e Applicant is also responsible for the
violation of its obligation to punish the crime of genoc ide. The Court found this
violation to be a distinct internationally wrongful act from the acts enumerated in
Article III of the Genocid e Convention and further fo und that State can incur
responsibility for both an act of genocide and for the breach by that State of its
obligation to punish the perpetrator of the act. 1444
1471.The Applicant has never charged either its fo rmer president Franjo Tudjman (while he
was alive) or any other person for genocide, although genocide was committed against
Serbs from Krajina and was committed by the official organs of the Applicant.
Moreover, as was shown in Chapter XIII, the Croatian judiciary has never initiated
proper criminal proceedings against the perpetrators of crimes committed during and
after the operation Storm even for war crimes or crimes against humanity. A small
number of the criminal proceedings that we re initiated against the perpetrators of
Croatian nationality were evaluated by intern ational observers as lacking impartiality
and being unfair, and often contrary to the presented evidence. 1445
1472.It is thus submitted that the Applicant has breached its obligation to punish the crime of
genocide, as provided by Article I of the Convention, and the Court should accordingly
find the Applicant responsible for this violation.
9. Applicant’s Celebration of Genocide
1473.While the Genocide Convention does not specif ically provide that States should not
celebrate genocide or the persons who committe d it, it is submitted that this obligation
is self-implied in the Convention, since it is impossible to imagine that a State which
undertook a solemn obligation to prevent and to punish genocide would, at the same
time, celebrate genocide.
144ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, 26 February 2007, General List No.
91, para. 383.
144See supra Chapter III, paras. 192-199, also see Chapter XIII, para. 1347-1350.
4681474.Nevertheless, this is exactly what the Applicant did and still does. Namely, according to
1446
the Croatian Law on Public Holidays, Remembrance Days and Non-Working Days ,
th
the 5 of August, the day when Knin and other major towns in Krajina were captured
1447
during the operation Storm, is celebrated as a public holiday – the “Day of Victory
and Homeland Gratitude” (Dan pobjede i domov inske zahvalnosti) and the “Day of the
1448
Croatian Defenders” (Dan hrvatskih branitelja) .
1475.This is a unique case in hist ory that a State is celebratin g the day on which its forces
committed genocide against a significant part of the population of that same State.
Furthermore, the celebration of the “Day of Victory and Homeland Gratitude” and the
“Day of Croatian Defenders” is even today a clear message to Serbs in Croatia that they
will never be considered in that country as citizens equal to the Croatian majority.
1476.For these reasons, the Respondent submits that, as a way of reparation for the
commission of the crime of genocide, the Court should order the Applicant to amend its
Law on Public Holidays, Remembrance Da ys and Non-Working Days, by way of
removing the “Day of Victory and Homela nd Gratitude” and the “Day of Croatian
Defenders” from its list of public holidays.
1446Law on Public Holidays, Remembrance Days and Non-Working Days, (Zakon o blagdanima, spomendanima
i neradnim danima u Republici Hrvatskoj), Narodne novine [Official Gazette], no. 33/1996, adopted on 19 April
1996, entered into force 8 May 1996, amended 5 times ( Narodne novine [Official Gazette], nos. 96/2001,
1447002, 136/2002, 59/2006, 55/2008), Article 1.
1448See supra Chapter XIII, para.1205.
The celebration of the “Day of the Croatian Defe nders” was added by the last amendments to the Law,
adopted on 13 May 2008, published in Narodne novine [Official Gazette], no. 55/2 008, entered into force on
16 May 2008.
469 SUBMISSIONS
On the basis of the facts and legal arguments pree snted in this Counter-Mem orial, the Republic of
Serbia respectfully requesttshe International Coutrof Justice to adjudge and declare:
I
1. That the requests in paragraphs 1(a), 1(b), 1(c), 1(d), 2(a), 2(b), 2(c) and 2(d) of the
Submissions of the Republic of Croatia as far as they relate to acts and omissions,
whatever their legal qualification, that took place before 27 April 1992, i.e. prior to the
date when Serbia came into existence as a State, or alternatively, before 8 October 1991,
when neither the Republic of Croatia nor the Republic of Serbia existed as independent
States, are inadmissible.
2. That the requests in paragraphs 1(a), 1(b), 1(c), 1(d), 2(a), 2(b), 2(c) and 2(d) of the
Submissions of the Republic of Croatia relating to the alleged violations of the
obligations under the Convention on the Prev ention and Punishment of the Crime of
Genocide after 27 April 1992 (alternatively, 8 Oc tober 1991) be rejected as lacking any
basis either in law or in fact.
3. Alternatively, should the Court find that the rqeuests relating to acts and omissions that took
place before 27 April 1992 (alternatively, 8 Octor b1991) are admissible, that the requests in
paragraphs 1(a), 1(b), 1(c), 1(d,)2(a), 2(b), 2(c) and 2(d) ofthe Submissions of the Republic
of Croatia be rejected in their entirety lscking any basis eitherin law or in fact.
II
4. That the Republic of Croatia has viol ated its obligations unde r the Convention on the
Prevention and Punishment of the Crime of Genocide by committing, during and after
the operation Storm in August 1995, the following acts with intent to destroy as such the
part of the Serb national and ethnical group living in the Krajina Region (UN Protected
Areas North and South) in Croatia:
- killing members of the group,
- causing serious bodily or mental harm to members of the group, and
- deliberately inflicting on the group conditi ons of life calculated to bring about
its partial physical destruction.
5. Alternatively, that the Republic of Croatia has viol ated its obliga tions under the
Convention on the Prevention and Punishment of the Crime of Genocide by conspiring
to commit genocide against the part of the Serb national and ethnical group living in the
Krajina Region (UN Protected Areas North and South) in Croatia.
4706. As a subsidiary finding, that the Republic of Croatia has violated its obligations under
the Convention on the Prevention and Punishme nt of the Crime of Genocide by having
failed and by still failing to punish acts of genocide that have been committed against
the part of the the Serb national and et hnical group living in the Krajina Region (UN
Protected Areas North and South) in Croatia.
7. That the violations of international law set out in paragraphs 4, 5 and 6 above constitute
wrongful acts attributable to the Republic of Croatia wh ich entail its international
responsibility, and, accordingly,
1) that the Republic of Croatia shall immediately take effective steps to ensure full
compliance with itsobligation to punish acts of genocide as defined by Article II
of the Convention, or any other acts proscribed by Article III of the Convention
committed on its territory before, during and after operationStorm; and
2) that the Republic of Croatia shall redress the consequences of its international
wrongful acts, that is, in particular:
a) pay full compensation to the members of the Serb national and ethnic
group from the Republic of Croatia for all damages and losses caused
by the acts of genocide;
b) establish all necessary legal conditions and secure environment for
the safe and free return of the members of the Serb national and
ethnical group to their homes in the Republic of Croatia, and to
ensure conditions of their peaceful and normal life including full
respect for their national and human rights;
c) amend its Law on Public Holiday s, Remembrance Days and Non-
Working Days, by way of remo ving the “Day of Victory and
Homeland Gratitude” and the “Day ofCroatian Defenders”, celebrated
th
on the 5 of August, as a day of the triumph in the genocidal operation
Storm, from its list ofpublic holidays.
The Republic of Serbia reserves its right to supplement or amend these submissions in the
light of further pleadings.
Belgrade, 21 December 2009 ____________________________
Dušan T. Bataković,
Agent of the Republic of Serbia
471 LIST OF ANNEXES
Volume II
SECTION I: The Independent State of Croatia 1941–1945 and Genocide against Serbs,
Jews and Roma /Historical Sources/
Annex 1: Map of the Independent State of Croatia 1941–1945
Annex 2: Excerpts from the Legal Decrees of the Independent State of Croatia
Annex 3: Fikreta Jelić-Butić, Ustashe and the Independent State of Croatia, Zagreb, 1977,
pp. 166–167, 185–187
Annex 4: Report of the State Commission of Croatia for the Investigation of the Crimes of the
Occupation Forces and Their Collaborators, Crimes in the Jasenovac Camp,
Zagreb, 1946 (translated by Sinisa Djuric)
Annex 5: Map of the Jasenovac Concentration Camps
Annex 6: Photos from the Jasenovac Concentration Camps
Annex 7: Photos of the Children Victims of the NDH Concentration Camps
SECTION II: The 1990s Croatian Historical Revisionism and the Revival of the Ustashe
Principles /Excerpts from Contemporary Literature and Original Sources/
Annex 8: Chronology of the Ustashe Movement after World War II
Annex 9: Efraim Zuroff, Operation Last Chance, New York, 2009, pp. 131–150
Annex 10: Karl Pfeifer, Croatia – Tudjman and the Genesis of Croatian Revisionism,
Searchlight Magazine, 2003
Annex 11: Viktor Ivančić, Točka na U, Split, 1998, pp. 113–115, 132–133
Annex 12: Excerpts from Aleksa Crnjaković, Interview with Dinko Ljubomir Šakić, former
Commandant of the Jasenovac Camp, I did my duty (Obavljao sam svoju
dužnost), published in Magazin, Zagreb, 1995
Volume III
SECTION III: Maps
Map no 1: The Habsburg Military Krajina, 1792, in J.R. Lampe, Yugoslavia as History: Twice
There was a Country, Cambridge, 2000, p.19
Map no. 2: The Socialist Federal Republic of Yugoslavia, DI Cartography Center, reprinted in
Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History
of the Yugoslav Conflict 1990–1995
472Map no. 3: Ethnic Composition in the Former Yugoslavia, 1991, DI Cartography Center,
reprinted in Central Intelligence Agency (CIA), Balkan Battlegrounds:
A Military History of the Yugoslav Conflict 1990–1995
Map no. 4: Serb Population in the Croatian Municipalities, 1991, in N. Baric, Serbian
Rebellion in Croatia 1991–1995 (Srpska pobuna u Hrvatskoj 1991–1995),
Zagreb, 2005, p. 40
Map no. 5: The RSK Municipalities, in N. Baric, Serbian Rebellion in Croatia 1991–1995
(Srpska pobuna u Hrvatskoj 1991–1995.), Zagreb, 2005, p. 174
Map no. 6: UN Forces in Croatia, Early 1995, DI Cartography Center, reprinted in Central
Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the
Yugoslav Conflict 1990–1995
SECTION IV: Selection of the Relevant RSK Documents
Annex 13: Statute of the Serbian Autonomous Region of Krajina, Basic Provisions,
reprinted in S. Radulović, Sudbina Krajine, 1996, p. 140
Annex 14: Resolution on the Separation of the Republic of Croatia and the Serbian
Autonomous Region of Krajina, Krajina Journal, Official Gazette of the
Serbian Autonomous Region of Krajina and Municipalities of Benkovac,
Donji Lapac, Gračac, Knin, Korenica and Obrovac, no. 1/1991, paras. 1–3
Annex 15: Decision on the Promulgation of the Statute of the Serbian Autonomous Region
of Krajina by the Constitutional Law of the Serbian Autonomous Region of
Krajina, Krajina Journal, Official Gazette of the Serbian Autonomous Region
of Krajina and Municipalities of Benkovac, Donji Lapac, Gračac, Knin,
Korenica and Obrovac, no. 4/1991
Annex 16: Decision on the Creation of Specialized Units of the Minisrty of Interiorof the Serbian
Autonomous Region of Krajin a called “Krajina Police”that will be under the
Authority of the Minsitry of Defense,Krajina Journal, Official Gazette of the
Serbian Autonomous Region of Kraijna and Municipal ities of Benkovac,
Donji Lapac, Gračac, Knin, Korenica and Obro vac, no. 4/1991, Art. 2
Annex 17: Decision on the Implementation of the Law on Defence of the Republic of Serbia
in the Territory of the Serbian Autonomous Region of Krajina, Krajina
Journal, Official Gazette of the Serbian Autonomous Region of Krajina
and Municipalities of Benkovac, Donji Lapac, Gračac, Knin, Korenica
and Obrovac, no. 4/1991, no. 8/1991, Art. 5
473Annex 18: Declaration on the Sovereign Self-rule of the Serbian People of Slavonia,
Baranja and Western Syrmicum, Official Gazette of the Serbian Region
of Slavonia, Baranja and Western Syrmicum, no. 1/1991, paras. 6 & 7
Annex 19: Constitution of the Republic of Serbian Krajina, Official Gazette of the Republic
of Serbian Krajina, no.1/1992, Articles nos. 1, 8, 78, 102
Annex 20: Amendment VIII, Official Gazette of the Republic of Serbian Krajina, no.9/1992
Annex 21: Law on Amendments to the Law on Defence, Official Gazette of the Republic
of Serbian Krajina, no.9/1992, Article 1
Annex 22: Amendments XII – XIV, Official Gatz te of the Republic of Serbian Krajina, no.2/1993
SECTION V: Selection of the Relevant SFRY Documents
Annex 23: Agreements of the SFRY concluded in the Second Part of 1991:
Tab. 1: Agreement between the Federal Executive Council of the Assembly
of the Socialist Federal Republic of Yugoslavia and the Government of the
United States of America concerning the Program of the United States Peace
Corps in the Socialist Federal Republic of Yugoslavia, dated 1 July 1991
Tab. 2: METAP Grant Agreement (Environment Management Project) between
Socialist Federal Republic of Yugoslavia and International Bank for
Reconstruction and Development, dated 4 October 1991, and the Facsimile
Cover Sheet with Message from the World Bank/IFC/M.I.G.A. dated
1 October 1991
Tab. 3: Protocol between the Federal Executive Council of the Assembly of the
Socialist Federal Republic of Yugoslavia and the Government of Romania on
Trade in Goods and Services, dated 27 November 1991
Annex 24: Exchange of Ambassadors, late 1991- early 1992:
Tab. 1: Letter from Mr. Mikhail Gorbachev, President of the USSR
to the Presidency of the SFRY, dated 5 November 1991
Tab. 2: Letter from Mr. Soeharto, President of Indonesia, to the Presidency
of the SFRY dated 15 January 1992
Tab.3: Letter from Mr. Bamako, President of Mali to the Presidency of the SFRY
dated 18 January 1992
Tab. 4: Letter from Mr. Ishaq Khan, President of the Islamic Republic of Pakistan
to the Presidency of the SFRY dated 30 January 1992
474Annex 25: Minute of the 127 Meeting of Members of the Presidency of the Socialist Federal
Republic of Yugoslavia held on 18 July 1991
Annex 26: Letter of Mr. Stjepan Mesić to the SFRY Presidency dated 9 January 1992
Annex 27: Excerpt from the Transcript of the 31 stsession of the Sobranije of the Republic
of Macedonia held on 10 January 1992
Annex 28: Decision of the Federal Secretariat for Foreign Affairs concerning the Retirement
of Mr. Budislav Lončar, Federal Secretary for Foreign Affairs dated
7 February 1992
Annex 29: Borisav Jović, Last Days of the SFRY: Excerpts from a Diary (Poslednji dani
SFRY, izvodi iz dnevnika), Belgrade, 1989, pp. 402, 411 & 420.
Annex 30: Letter of the Ministry of Defence addressed to the Ministry of Foreign Affairs
of the Republic of Serbia dated 18 November 2009
Annex 31: JNA, Operation Group South Command, Decision for Continuation of Assault
Operation Vukovar, Strictly Confidential no. 235-1 dated 29 October 1991
SECTION VI: War Crime Trials in Croatia
Annex 32: OSCE Mission to Croatia, Background report: domestic war crime trials 2005,
dated 13 September 2006, p. 29
Annex 33: District Court of Sisak, Velemir case, Judgment of 26 September 1996
Annex 34: Federal Court of Australia, Snedden case, Appeal Judgment of 2 September 2009
SECTION VII: Documents related to the Activities of the Commission for Missing
Persons of the Government of the Republic of Serbia
Annex 35: Minutes of the Meeting between the Office of the Commissioner for Detained
and Missing Persons of the Government of the Republic of Croatia
and the Commission for Missing Persons of the Government
of the Republic of Serbia held in Zagreb on 30 June 2009
SECTION VIII: Documents related to the Crimes committed against
the Serbs in Croatia 1991–1995
Annex 36: Martin Špegelj, Minister of Defence of the Republic of Croatia, Soldier’s Memory
(Sjećanja vojnika), Zagreb, 2001, p. 288, table IV: Weapons purchased in the
organization of the Ministry of Defence of the Republic of Croatia between
5 October 1990 and 15 January 1991
475Annex 37: Examples of Attacks on the Serbs in Croatian Towns 1990-1991
according to the Croatian Press
Annex 38: Centre for Peace, Non-Violance and Human Rights Osijek, Croatia,
Monitoring war crime trials: War crime in Osijek
Annex 39: Centre for Peace, Non-Violance and Human Rights Osijek, Croatia,
Monitoring war crime trials: Crime in Paulin Dvor
Annex 40: Centre for Peace, Non-Violance and Human Rights Osijek, Croatia,
Monitoring war crime trials: The war crime in Marino Selo
Annex 41: District Court of Rijeka, Orešković et al. case,
Judgment of 24 March 2003 (Excerpt)
Annex 42: Amnesty International, A shadow on Croatia's future: Continuing impunity
for war crimes and crimes against humanity
Annex 43: Nebojša Taraba, Most of them floated down the Sava, Split, 1993
Annex 44: First Municipal court in Belgrade, Minutes of Witness Hearing
of Milanče Tošić dated 19 February 2002 (Lora case)
Annex 45: First Municipal court in Belgrade, Minutes of Witness Hearing
of Vojkan Živković dated 21 February 2002 (Lora case)
Annex 46: NGO “Veritas”, List of the Killed or Missing Members of the RSK Territorial
Defense at the Miljevci Plateau
Annex 47: Statement of Nikola Nadoveza, given to the Serbian Army of Krajina
on 21 November 1993, reprinted in “Veritas”, Miljevci, available from
http://www.veritas.org.rs/publikacije/Miljevci/Tekstovi/Srpski/sesta.htm
Annex 48: Basic Court in Gradiska, Bosnia and Herzegovina, Minutes of Witness Hearing
of Petar Božič dated 7 May 1995 (Novi Varoš case)
Annex 49: Basic Court in Banja Luka, Bosnia and Herzegovina, Minutes of Witness Hearing
of Savo Počuča dated 10 May 1995 (Operation Flash)
Map no. 7: Croatia: Western Slavonia, May 1995 (Operation Flash), DI Cartography Center,
reprinted in Central Intelligence Agency (CIA), Balkan Battlegrounds:
A Military History of the Yugoslav Conflict 1990–1995
Annex 50: General J. Bobetko, All My Battles (Sve moje bitke), Zagreb, 1996, pp. 400 & 407
Annex 51: Public Statements which Directly Provoked Perpetrators to Commit Genocide
against the Serb National Group in Croatia
476 Volume IV
SECTION IX: Operation Storm /Evidence/
Annex 52: Minutes of the Meeting held by the President of the Republic of Croatia,
Dr. Franjo Tudjman, with Military Officials, on 31 July 1995 at Brioni
Map no. 8: Bosnia & Croatia: Livno Valley, 25–30 July 1995, Central Intelligence Agency
(CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990–1995
Map. No. 9: Operation Oluja, 4–8 August 1995, Central Intelligence Agency (CIA), Balkan
Battlegrounds: A Military History of the Yugoslav Conflict 1990-1995
Annex 53: Minutes of the Meeting held by the President of the Republic of Croatia,
Dr. Franjo Tudjman, with Military Officials, on 23 August 1995 in Zagreb,
pp. 01325991, 01325993-01325997
Annex 54: ECMM Team N2, The Consequences in former “RSK” of Operation “Storm”,
Special Report, dated 23 August 1995 (Author Soren Liborius)
Annex 55: Humanitarian Crisis Cell Sitrep, Compilation of Human Rights Reporting,
7 August – 11 September 1995
Annex 56: Public Statement of President Tudjman, according to HINA Article, Franjo
Tudjman: Hour of return has come both for East Slavonia and Baranja,
dated 28 August 1995, reprinted in Jovan Bošković, NDH drugi put –
LUX Croatiae, Belgrade, 1999, pp. 378–379.
Annex 57: UNMO HQ Sector South, Summary of Humanitarian Violations,
DAILY SITREPS, 4 September – 4 October 1995
Annex 58: UNMO HQ Sector South & Human Rights Activities Team (HRAT), Survey
Report on the Humanitarian Rights Situation in Sector South, 4 October –
4 November 1995 (drafted by Major Peter Marti and Captain Kari Anttila)
Annex 59: UN A/50/727, S/1995/933, Report on the situation of human rights in the territory
of the former Yugoslavia submitted by Mrs. Elisabeth Rehn, Special
Rapporteur of the Commission on Human Rights, pursuant to Commission
resolution 1995/89 and Economic and Social Council decision 1995/290,
dated 7 November 1995, Part II. Croatia, paras. 9-50.
Annex 60: ECMM, 100 Days after Operation “Storm” in the former “Serb Krajina”,
Comprehensive Survey Report on the First Hundred Days of Croatian Rule
in UN Sector South, dated 21 November 1995
477Annex 61: Croatian Helsinki Committee for Human Rights, Militry Operation “Storm”
and It’s Aftermath, Report, Zagreb, 2001
Tab. 1: Civilians Killed During and After Military Operation “Storm”
(former UN Sector South), pp. 137-169
Tab. 2: List of Killed and Missing Persorom the Refugee Columns, pp. 223–230
Tab. 3: List of murdered and missing civilians in the area of the former Sector
North with descriptions of executions, pp. 236–260
Annex 62: NGO “Veritas”, Bilten No. 114, August 2007, Žrtve «Oluje» i postoluje, pp. 5–13
Annex 63: Recommendations for the Non-Governmental Organization “Veritas”
by the UN Liason Office Belgrade, the International Committee
f the Red Cross and the ICTY Deputy Prosecutor
Annex 64: ICTY, Gotovina et al. Case, IT-060-90, Reynaud Theunens, Expert Report
“Croatian Armed Forces and Operation Storm” dated 18 December 2007,
Excerpts
Annex 65: Commission of the European Communities, Croatia 2009 Progress Report,
SEC(2009) 1333 dated 14 October 2009, pp. 15–16
Volume V
SECTION X: List of Serb Victims on the Territory of Croatia 1990–1998
Annex 66: Report of the Non Governmental Organization “Veritas”, Serb Victims of War
and Post-War in the Territories of Croatia and the former
Republic of Serbian Krajina 1990–1998 dated 31 October 2009
478
volume I