CR 2006/5
International Court Cour internationale
of Justice de Justice
THHEAGUE LHAAYE
YEAR 2006
Public sitting
held on Wednesday 1 March 2006, at 10 a.m., at the Peace Palace,
President Higgins presiding,
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)
________________
VERBATIM RECORD
________________
ANNÉE 2006
Audience publique
er
tenue le mercredi le 1 mars 2006, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à l’Application de la convention pour la prévention et la répression du
crime de génocide (Bosnie-Herzégovine c. Serbie-et-Monténégro)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-PresiKntasawneh
Judges Ranjeva
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Skotnikov
Judges ad hoc AhmedMahiou
Milenko Kreća
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
AlKh.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Sjoteiskov,
MM. Ahmed Mahiou,
KMrilenko ća, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Bosnia and Herzegovina is represented by:
Mr. Sakib Softić,
as Agent;
Mr. Phon van den Biesen, Attorney at Law, Amsterdam,
as Deputy Agent;
Mr.Alain Pellet, Professor at the University of ParisX-Nanterre, Member and former Chairman of
the International Law Commission of the United Nations,
Mr. Thomas M. Franck, Professor of Law Emeritus, New York University School of Law,
Ms Brigitte Stern, Professor at the University of Paris I,
Mr. Luigi Condorelli, Professor at the Facultyof Law of the University of Florence,
Ms Magda Karagiannakis, B.Ec, LL.B, LL.M.,Barrister at Law, Melbourne, Australia,
Ms Joanna Korner, Q.C.,Barrister at Law, London,
Ms Laura Dauban, LL.B (Hons),
as Counsel and Advocates;
Mr. Morten Torkildsen, BSc, MSc, Tork ildsen Granskin og Rådgivning, Norway,
as Expert Counsel and Advocate;
H.E. Mr. Fuad Šabeta, Ambassadorof Bosnia and Herzegovina to the Kingdom of the Netherlands,
Mr. Wim Muller, LL.M, M.A.,
Mr. Mauro Barelli, LL.M (University of Bristol),
Mr. Ermin Sarajlija, LL.M,
Mr. Amir Bajrić, LL.M,
Ms Amra Mehmedić, LL.M,
Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, University of Paris X-Nanterre, - 5 -
Le Gouvernement de la Bosnie-Herzégovine est représenté par :
M. Sakib Softić,
coagment;
M. Phon van den Biesen, avocat, Amsterdam,
comme agent adjoint;
M. Alain Pellet, professeur à l’Université de ParisX-Nanterre, membre et ancien président de la
Commission du droit international des Nations Unies,
M. Thomas M. Franck, professeur émérite à lafaculté de droit de l’Université de New York,
Mme Brigitte Stern, professeur à l’Université de Paris I,
M. Luigi Condorelli, professeur à la faculté de droit de l’Université de Florence,
Mme Magda Karagiannakis, B.Ec., LL.B., LL.M.,Barrister at Law, Melbourne (Australie),
Mme Joanna Korner, Q.C.,Barrister at Law, Londres,
Mme Laura Dauban, LL.B. (Hons),
comme conseils et avocats;
M. Morten Torkildsen, BSc., MSc., Tork ildsen Granskin og Rådgivning, Norvège,
comme conseil-expert et avocat;
S. Exc. M. Fuad Šabeta, ambassadeur de Bosn ie-Herzégovine auprès duRoyaume des Pays-Bas,
M. Wim Muller, LL.M., M.A.,
M. Mauro Barelli, LL.M. (Université de Bristol),
M. Ermin Sarajlija, LL.M.,
M. Amir Bajrić, LL.M.,
Mme Amra Mehmedić, LL.M.,
M. Antoine Ollivier, attaché temporaire d’ense ignement et de recher che à l’Université de
Paris X-Nanterre, - 6 -
Ms Isabelle Moulier, Research Student in International Law, University of Paris I,
Mr. Paolo Palchetti, Associate Professor at the University of Macerata (Italy),
as Counsel.
The Government of Serbia and Montenegro is represented by:
Mr. Radoslav Stojanović, S.J.D., Head of the Law Council of the Ministry of Foreign Affairs of
Serbia and Montenegro, Professor at the Belgrade University School of Law,
as Agent;
Mr. Saša Obradović, First Counsellor of the Embassy of Serbia and Montenegro in the Kingdom of
the Netherlands,
Mr. Vladimir Cvetković, Second Secretary of the Embassy of Serbia and Montenegro in the
Kingdom of the Netherlands,
as Co-Agents;
Mr.Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, member of
the English Bar, Distinguished Fellow of the All Souls College, Oxford,
Mr. Xavier de Roux, Masters in law, avocat à la cour, Paris,
Ms Nataša Fauveau-Ivanović, avocat à la cour, Paris and member of the Council of the
International Criminal Bar,
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Directo
r
of the Walther-Schücking Institute,
Mr. Vladimir Djerić, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, and President of the International Law Association of Serbia and Montenegro,
Mr. Igor Olujić, Attorney at Law, Belgrade,
as Counsel and Advocates;
Ms Sanja Djajić, S.J.D., Associate Professor at the Novi Sad University School of Law,
Ms Ivana Mroz, LL.M. (Minneapolis),
Mr. Svetislav Rabrenović, Expert-associate at the Office of th e Prosecutor for War Crimes of the
Republic of Serbia, - 7 -
Mme Isabelle Moulier, doctorante en droit international à l’Université de Paris I,
M. Paolo Palchetti, professeur associé à l’Université de Macerata (Italie),
cocomnseils.
Le Gouvernement de la Serbie-et-Monténégro est représenté par :
M. Radoslav Stojanović, S.J.D., chef du conseil juridique du ministère des affaires étrangères de la
Serbie-et-Monténégro, professeur à la faculté de droit de l’Université de Belgrade,
coagment;
M. Saša Obradovi ć, premier conseiller à l’ambassade de Serbie-et-Monténégro au Royaume des
Pays-Bas,
M. Vladimir Cvetković, deuxième secrétaire à l’ambassade de Serbie-et-Monténégro au Royaume
des Pays-Bas,
comme coagents;
M. Tibor Varady, S.J.D. (Harvard), professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre de la Commission du droit international, membre
du barreau d’Angleterre, Distinguished Fellow au All Souls College, Oxford,
M. Xavier de Roux, maîtrise de droit, avocat à la cour, Paris,
Mme Nataša Fauveau-Ivanovi ć, avocat à la cour, Paris, et membre du conseil du barreau pénal
international,
M. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur de
l’Institut Walther-Schücking,
M. Vladimir Djerić, LL.M. (Michigan), avocat, cabinet Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, et président de l’association de droit international de la Serbie-et-Monténégro,
M. Igor Olujić, avocat, Belgrade,
comme conseils et avocats;
Mme Sanja Djajić, S.J.D, professeur associé à la faculté de droit de l’Université de Novi Sad,
Mme Ivana Mroz, LL.M. (Minneapolis),
M. Svetislav Rabrenovi ć, expert-associé au bureau du procureur pour les crimes de guerre de la
République de Serbie, - 8 -
Mr. Aleksandar Djurdjić, LL.M., First Secretary at the Ministry of Foreign Affairs of Serbia and
Montenegro,
Mr. Miloš Jastrebić, Second Secretary at the Ministry of Foreign Affairs of Serbia and Montenegro,
Mr. Christian J. Tams, LL.M. (Cambridge),
Ms Dina Dobrkovic, LL.B.,
as Assistants. - 9 -
M. Aleksandar Djurdjić, LL.M., premier secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Miloš Jastrebić, deuxième secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Christian J. Tams, LL.M. (Cambridge),
Mme Dina Dobrkovic, LL.B.,
comme assistants. - 10 -
The PRESIDENT: Please be seated. The session is now open and I call upon
Professor Franck.
Mr. FRANCK: Thank you, Madam President, Members of the Court.
G ENOCIDE AS DEFINED BY THE G ENOCIDE C ONVENTION
It will be amply apparent that we have been following a schema for presenting our argument
to you which consists in part of pleading groups of facts, grouped by where the facts occurred,
when they occurred, what the nature of the facts was, and we have interspersed these pleadings of
fact, which undoubtedly have been troubling and disturbing, with less disturbing discourses on the
applicable law, the law that relat es to these facts. This morning I will, with your permission, talk
for a while about genocide, as defined by the Genocide Convention. May it please the Court. I
would like to offer a few observa tions to begin on the role assigne d to this Court by the Genocide
Convention.
The role assigned to this Court by the Genocide Convention
1. We all know, of course, the events leading to the Convention’s drafting. After the
1
extermination of eight million persons , primarily because of their race, religion or ethnicity, major
German war criminals were indicted on 8October 1945 2. One year later, the United Nations
3
General Assembly unanimously a ffirmed that genocide is “a crime under international law...” .
It simultaneously called for the drafting of the Ge nocide Convention, a universal treaty giving
effect to that determination. Two years late r, in 1948, the drafting of that Convention was
completed and the Convention entered into force on 12 January 1951. In its first Article, it
obligates the parties, first of all, “to prevent and punish” this offence against international law 4.
But it also provided another implementing process, one just as important.
2. That process was set out in Article IX of the Convention, by which the International Court
of Justice is given jurisdiction over State respons ibility for genocide. This was adopted only after
1
Oppenheim’s International Law, Ninth ed., Vol. 1, Pts. 2-4, p. 993, para. 434.
Trial of the Major Criminals before the International Military Tribunal , Nuremberg,
14 November 1945-1 October 1946, Nuremberg, 1947, Vol. I, pp. 43-44.
Resolution on the Crime of Genocide, General Assembly resolution 96 (I) of 11 December 1946.
Convention on the Prevention and Punishment of the Crim e of Genocide, General Assembly resolution 260 (III)
of 9 December 1948. United Nations, 78 Treaty Series (UNTS) 277. - 11 -
the earlier draft was deliberately amended. The reason for this change in the draft is very relevant
to this case and I will take a moment to discuss it. The original draft would have confined the ICJ’s
jurisdiction solely to disputes relating to the inte rpretation or application of the Convention and it
would have barred jurisdiction with respect to any issue which had been referred to and was
pending before, or had been passed upon by an international criminal court. It is important to recall
that, even back then, the creation of such an in ternational criminal jurisdiction was already being
contemplated. After extensive debate in the Sixth Committee of the General Assembly, that
provision was deleted and it was replaced by a new text proposed by the United Kingdom and
Belgium 5. This new text granted the ICJ expande d jurisdiction over any “disputes between the
contracting parties relating to the interpretati on, application or fulfilment of the Convention
including those relating to the responsibility of a State for genocide . . . ” 6 ⎯ those key words were
new. The drafters had decided that State respons ibility for genocide was an essential aspect of any
effort to use law with respect to genocide, even while contemplating vari ous ways to criminalize
genocidal conduct by individual persons.
3. To this end the drafters established a non-crim inal jurisdiction and vested it, of course, in
this Court and made it the legal weapon of choice for States that violate their legal obligation to
other States by engaging in genocide. What States had clearly understood was that it is States, as
well as individuals, who are the actual perpetrators of genocide. In the words of the British
delegate Sir Gerald Fitzmaurice during the deba te on Article IX in the Sixth Committee of the
General Assembly, “the inclusion of the idea of international responsibility of States or
7
Governments was necessary for the establishment of an effective convention on genocide” . The
French representative also observed that, “w hether as perpetrator or as accomplice, the
Government’s responsibility was in all cases implicated” 8.
4. It is notable that the General Assembly, in approving a convention which deliberately
gave the ICJ jurisdiction to ascertain State respons ibility for genocide, did so in full contemplation
5
A/C.6/258.
6
See Yearbook of the United Nations, 1948, p. 955. Emphasis added.
7United Nations, Official Records of the General Assembly , Sixth Committee, Summary Records,
21 September-10 December 1948, p. 444.
8Id., p. 146. - 12 -
of the eventual need for a separate criminal process that would bring to justice individuals
committing genocide. Thus, the Assembly, even while adopting the draft of the Genocide
Convention and opening it for ratification, passed another resolution. That resolution requests the
ILC, the International Law Commission, to study the desirability of having another treaty that
would authorize an “international judicial organ” to bring to trial persons charged with genocide. It
is of some historic interest that this resolution “requests the International Law Commission, in
carrying out this task, to pay attention to the possibility of establishing a Criminal Chamber in the
9
International Court of Justice” .
5. Well, as we know, the slowly maturing fru it of that endeavour is the International
Criminal Court, which has yet to speak in a case before it, and the two ad hoc Criminal Tribunals
for Yugoslavia and Rwanda; that is where responsibility, culpability, for individual acts of
genocide reside. The Yugoslav a nd Rwandan Tribunals ha ve developed a mature jurisprudence,
which I will examine further on Thursday morning. Thus, while the jurisdiction over genocidal
crimes did not devolve on this Court, instead, other temporary and permanent institutions were
created to punish individual perpetrators.
6. What comes through quite clearly in this history is that, from the very inception of the
Genocide Convention, it was always intended that there be two complementary jurisdictions to deal
with two quite clearly distinguishable aspects of the grizzly phenomenon of genocide: the problem
of State responsibility for genocide and the problem of personal culpability. It was understood
then, and that understanding must be honoured toda y, that both aspects of genocide need to be
addressed, but by different institutions. Personal culpability is being addressed by the ICC and the
two Criminal Tribunals, Yugoslavi a and Rwanda. The world expects that State responsibility for
genocide will be addressed by this Court.
7. Yet, despite all this ready-to-hand eviden ce to the contrary, the Respondent has persisted
in arguing, as recently as 1997, that the “Convention does not envisage a state as the perpetrator of
genocide” 10. You had already spoken emphatically on this matter in 1996 11. Well, this case will
9
General Assembly resolution 260 (III) B.
10
Counter-Memorial, p. 303, para. 4.4.1.9.
11Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II). - 13 -
provide an additional opportunity for this Court to rule on that important matter, not only for the
guidance of the Parties here before you, but for th e benefit of future generations that should not
have to fear the immunity of States from responsibility for their genocidal acts.
8. The Convention stipulates that genocide is ⎯ not will be , but is ⎯ prohibited under
12
international law and thus makes clear that this problem already was a principle of customary
international law, even before the Convention came into force 13. What the Convention added to
the pre-existing law, however, is crucial. It created a universal, treaty-based concept of State
responsibility. And, as a consequence, it created a tribunal ⎯ this honourable Court ⎯ before
which that responsibility may be ascertained.
9. It is State responsibility for genocide that this legal proceeding is all about. It is the
determination of State responsibility that Article IX assigns to the ICJ. It is the State responsibility
of the Respondent that we seek to establish during the course of these pleadings.
The Genocide Convention’s purpose
10. Permit me now, Madam President, to turn to the question of the Genocide Convention’s
underlying purpose. In its Advisory Opini on of 1951, this Court sought to underscore the
important point that “the principles underlying the Convention are principles which are recognized
by civilized nations as binding on States, even without any conventional obligation” 14. These
principles are perhaps the most important part of the normative structure that underpins all
international law and that upholds the very concept of State accountability. It cannot be escaped.
11. This Court will undoubtedly wish to make it clear that every State’s responsibilities
under this normative structure are binding, that it takes much more than an opportunistic shrug to
escape these normative bonds which bind nations to the common skein of civilization.
12. In the same Advisory Opinion, the Court further emphasized the Convention’s purpose, a
purpose that is very much at issue in the proceed ings underway here, today. “The Convention was
manifestly adopted for a purely humanitarian and civilizing purpose”, you said:
12
Convention, Art. I.
1See: Adam Roberts and Richard Guelff, eds., Documents on the Laws of War, 1982, p. 157
1Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23. - 14 -
“It is indeed difficult to imagine a convention that might have this dual
character to a greater degree, since its object on the one hand is to safeguard the very
existence of certain human groups and on the other to confirm and endorse the most
15
elementary principles of morality.”
13. These elementary principles of morality are still in contention, alas, and what this Court
does, in these proceedings, will have a determining role in establishing the “elementary principles”
to which the Convention sought to bind States. In this case the Court must surely tell the citizens
of all States that they, the whole population ⎯ and not just rogue leaders and criminals in their
midst ⎯ shares the onerous responsibility of preventing the commission of genocide in their name,
and a fortiori, not themselves to commit genocide. If they fail in that universal obligation, then
they ⎯ their State ⎯ must at least shoulder part of the t ask of rebuilding the shattered lives and
social fabric of the survivors. That, surely, is at the core of the Convention’s “humanitarian and
civilizing purpose”.
What the Genocide Convention prohibits
14. Permit me now to address what the Convention itself prohibits. The purpose of the
Genocide Convention is to prevent or to stop acts co mmitted with intent to destroy in whole or in
16
part, a national, ethnical, racial or religious group, as such .
15. In its Advisory Opinion of 1951, this Court made clear that the intention of the drafters
and ratifiers was to make unlawful acts “involving a denial of the right of existence of entire human
groups, a denial which shocks the conscience of mankind and results in great losses to humanity,
17
and which is contrary to moral law and to the spirit and aims of the United Nations” .
16. In our pleadings we will more than demonstrate that the “right of existence of entire
human groups” was denied in Bosnia.
17. We will show that this did, indeed, r esult “in great losses to humanity”, and we will
demonstrate that this denial is attributable to the Respondent.
15
Id., p. 23.
16
Convention, id,, Art. II.
17I.C.J. Reports 1951, p. 23. - 15 -
18. But, it is you, the judges, as the “conscience of mankind”, who will have to decide
whether these acts do, indeed, “shock the conscience”, and, if so, whether the “moral law and . . .
the spirit and aims of the United Nations” will be enforced.
19. The drafters were quite specific in enum erating the acts that constitute genocide. In
Article II, the Convention defines genocide as:
“(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”
if “any of the following acts [were] committed with intent to destroy, in whole or in part, a
national, ethnical, racial, or religious group, as such”.
20. The drafters knew that even this very specific enumeration would need to be construed in
the light of as yet unforeseeable circumstances. It was Dr.Bartos, speaking on behalf of
Yugoslavia, who foresaw that, for example, “Genocide could be committed by forcing members of
18
a group to abandon their home.”
21. We are demonstrating that almost every one of the enumerated elements of genocide was
perpetrated against the non-Serb population of Bo snia and Herzegovina and that these acts were
committed with “intent to destroy, in whole or in part” a specific and historic “national, ethnical
and religious group as such”.
22. In compliance with ArticleIX of the Genocide Convention, we are presenting evidence
that, we think, overwhelmingly demonstrates th e “responsibility of a State for genocide”. The
State in question is the Respondent, known to us during these proceedings by various names that
reflect the evolution of its domestic politics, but wh ich remains eternally responsible for these acts.
We will show that the acts perpetrated in Bosnia have left an indelible trail of perpetrators,
instructions, uniforms, and money that leads straight back to Belgrade.
1United Nations, Official Records of the General Assembly, First Part of sixth sessio, 82nd meeting,
23 October 1948, pp. 184-185. - 16 -
23. We are showing that these acts were not merely the wanton cruelties of a random rabble,
but, rather, that were the deliberate policy of the St ate that, at various times, has described itself as
the Socialist Federal Republic of Yugoslavia, the Federal Republic of Yugoslavia and, most
recently, as Serbia and Montenegro. We will insist to this Court, charged as it is with being the
“conscience of mankind”, that this State cannot be allowed to rid itself of the stench of the blood it
has spilled merely by putting on fresh new names.
24. Article IX of the Convention authorizes this action to determine “the responsibility of a
State for genocide or any of the other acts enumerated in Article III”. We will present
overwhelming evidence of the acts of genocide enum erated in the Convention’s Article II, as well
as of those other, ancillary acts enumerated in Article III. Article III includes:
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) Complicity to commit genocide.
25. The Convention’s definition of genocide pr ecisely matches the events in Bosnia and
Herzegovina in the first half of the past decade. Hundreds of thousands of innocent civilians have
been tortured, raped and killed solely on account of belonging to a group, and have had conditions
imposed on them that are calculated to bring about th e physical destruction, in whole or in part, of
the group to which they belong. The Special Rapporteur of the United Nations Commission on
Human Rights, Mr. Tadeusz Mazowiecki, has reporte d that non-Serbs are by far the bulk of those
who have been beaten, robbed, raped, forced to flee, and that this is “undoubtedly related to the
political objectives formulated and pursued by Serbian nationalists . . .” 19. The General Assembly
has registered its horror at the “widespread ra pe and abuse of women and children” and “in
particular its systematic use against the Muslim women and children in Bosnia and Herzegovina by
20
Serbian forces . . .” .
26. But, the Respondent asks, which Serbs? We accept that the jurisdiction afforded this
Court under ArticleIX of the Convention extend s only to issues between States. We shall
19
A/47/666; S/24809, 17 November 1992, Ann., p. 6.
2General Assembly resolution 48/143 of 20 December 1993. - 17 -
demonstrate that the responsibility for these acts of genocide adheres not to some Stateless crowd
that can be traced directly to a State, the responde nt State. To quote again the General Assembly,
21
these “tactics” which were deployed “as a matter of policy” were “the primary responsibility” of
“the commanders of Serb paramilitary forces” which we saw in the film that ended yesterday so
depressingly “and military leaders in the Federal Republic of Yugoslavia (Serbia and
Montenegro) . . .” 22.
With your indulgence, I would like now to turn to the interpretation of the definition of
genocide.
The interpretation of the definition of genocide
27. When this case began, the International Court of Justice was faced with interpreting the
Genocide Convention as a matter of first impression. Now, more than a decade later, the legal text
has had the benefit of extensive analysis by two specialized tribunals established by the Security
Council precisely to serve that purpose in the context of actual genocides committed in the former
Yugoslavia and in Rwanda. The law of genocide, alas, is becoming clearer through usage.
28. The International Criminal Tribunal for the former Yugoslavia, created under
ChapterVII of the United Nations Charter by Security Council resolution808 (1993), is
responsible for the prosecution of persons commit ting genocide in the territory of the former
Yugoslavia since 1991. The Tribunal’s Statute, Ar ticle 4, paragraph 2, defines genocide and its
ancillary crimes by incorporating Articles II and III, which we have just discussed, of the Genocide
Convention, thereby authorizing the judges to apply that Convention in the Tribunal’s proceedings.
They have done so, conspicuously, in accord ance with Articles31 and 32 of the Vienna
Convention on the Law of Treaties, taking into account the objects and purposes of the Genocide
Convention 23 and recognizing that the Convention has codified a norm that is recognized in
24
international law as jus cogens .
21Id.
22
Id., para. 4, emphasis added.
23ICTY, Prosecutor v. Radislav Krstić, case No. IT-98-33-T, Judgment, para. 540 (2 August 2001).
24Id., para. 541. - 18 -
T2he. ad hoc Yugoslav Tribunal has now had a decade in which to engage in these tasks.
It has had several cases in which the crime of ge nocide was among the indictments brought against
a defendant and in these cases the proceedings have culminated in convictions. Its findings are
important evidence both as to law and as to facts. The decisions of the trial chamber in these cases
have clarified the law pertaining to genocide ⎯ particularly, but not exclusively, as it pertains to
“intent” ⎯ and have ascertained facts about what was done, where, when, by whom and to whom.
The Appeals Chamber by its careful scrutiny of th e law applied, and of the facts found, has
strengthened the credibility of this jurisprudence.
30. The ICTY has also carefully taken into account the travaux préparatoires of its mandate,
25
as well as the work of the Preparatory Comm ission for the International Criminal Court . It has
also given full credence to the jurisprudence on genocide generated by the Criminal Tribunal for
Rwanda, its sister institution, which, as we ha ve noted, operates under an essentially identical
mandate 26. The Tribunal has also taken into account the law-related work of other parts of the
United Nations system, such as the report on the law of genocide by the Sub-Commission on the
27
Prevention of Discrimination and Protection of Minorities .
31. We believe that this Court will agree that both the determinations of law and of fact by
the Yugoslav Tribunal cannot but be relevant to these deliberations.
32. It will be apparent to this Court that the facts established to the satisfaction of the
Yugoslav Tribunal have been subjected to a vigorous and prolonged adversary process and have
met the rigorous evidentiary standards benefiting a crim inal trial. In one salient instance, the facts
were established by agreement between a ve ry prominent defendant, Mrs.BiljanaPlavsi ć, a
co-President of the Republika Srpska, between her and the Prosecutor of the Yugoslav Tribunal, an
agreement endorsed by the judges of that Tribuna l, who said, “A written Factual Basis for the
crime described [in that judgment] was filed w ith the Plea Agreement. The factual basis was
agreed by the accused and forms the basis upon which the Trial Chamber . . . passes sentence.” 28
25
PCNICC/2000/INF/3/Add.2, 6 July 2000.
26Id., para. 541.
27Nicodeme Ruhshyankiko, Study on the Question of the Prevention and Punishment of the Crime of Genocide ,
United Nations ECOSOC, Commission on Human Rights, Sub-Commission on Pr evention of Discrimination and
Protection of Minorities, E/CN.4/Sub. 2/416, 4 July 1978.
28ICTY, Prosecutor v. Biljana Plavsik, IT-00-37&40/1-S, 27 February 2003, Sentencing Judgment, para. 9. - 19 -
33. We intended to present these factual dete rminations agreed by co-PresidentPlavsi ć and
the ICTY judges as highly persuasive evidence for this Court, especially in so far as they pertain to
the very matters contested in our present case. They are important not only as to the agreed facts,
but also as to the conclusions of law which the facts were held to support. The Respondent has
invited this Court to disregard all this ev idence as being of “dubious evidential value” 29. We will
ask you, the judges of the World Court to give the appropriate answer, not only because this
baseless contempt for a legitimate legal institution should not be allowed to stand, but, more
importantly, to safeguard the historic record being established by the Yugoslav Tribunal from the
arrogant machinations of the genocide deniers.
34. The facts established by the ICTY that will be cited to assist this Court in order to reach
its own conclusions regarding the commission of ge nocide have various pedigrees. Some are facts
found in cases in which genocide was charged by the ICTY Prosecutor and in which that Tribunal
concluded that genocide had been committed by the indicted individual or individuals. But we will
also be drawing your attention to facts establishe d to the satisfaction of the Yugoslav Tribunal in
cases in which individuals were charged with crimes other than genocide: crimes against humanity
and war crimes. The facts found in those more nume rous cases will be laid before you in order to
establish an even more important point of law, one the criminal tribunals could not establish
because it was not within their mandate: that point is that proven individual acts of murder, torture,
rape and forcible displacement, when seen cumu latively in the context of numerous criminal
prosecution of individuals, begin to emerge as, yes, a pattern. It is that terrible pattern which,
ultimately, transforms many ordinary crimes into over-arching and undeniable genocide. It is the
accumulation of solitary crimes ⎯ the dreadful repetition of evil acts ⎯ that emerges finally,
clearly, as the super crime of genocide. When we piece together these many smaller proven facts,
each gleaned in the rigorous adversary process in which one person at a time is convicted in a
criminal trial, by evidence established beyond a reasonable doubt, of acts which constitute
violations of humanitarian law, or crimes agains t humanity, only then, when the parts are pieced
together, does a larger, more sinister picture begins to emerge, one that makes clear the respondent
29
Rejoinder, 22 February 1999, para. 3.1.4. - 20 -
State’s fateful unleashing of the planned and intend ed destruction of an important part of the
Bosnian people and of their communities.
35. The decisions of the Rwanda Criminal Tribunal ⎯ established in 1994, also under the
30
Security Council’s Chapter VII mandatory authority ⎯ are, admittedly, less relevant to these
proceedings in so far as they constitute findings of fact that arise in a different geographic and
demographic context. Nevertheless, that Tribunal, too, has made important determinations of law
that certainly are relevant to you. It has heard cases in which genocide was among the offences
charged, and thus the Tribunal has had to inte rpret and apply the Genocide Convention. These
interpretations of the law have added to the juri sprudence pertaining to genocide, conspiracy to
commit genocide, incitement and complicity. On Thursday morning, I will endeavour to present
some of the highlights of this jurisprudence, wh ich, despite the caustic disparagement of counsel
for the Respondent, will readily be seen to be relevant to an understandi ng of the import and the
significance of the Genocide Convention to these proceedings.
36. The Respondents are contemptuous of this process by which law is interpreted by judges.
“The enumeration of the prohibited acts is exhaustive”, they say ⎯ and I’m quoting them in their
Counter-Memorial ⎯ and they note, for example, that et hnic cleansing and rape are not mentioned
31
in the Convention . But the Convention does specify “[c]ausing serious bodily or mental harm”
and “imposing measures intended to prevent birth s”. Can a pattern of rapes carried out against
members of one ethnic and religious group by members of another be seen to qualify? Can the
terrorization of large numbers of Bosnian Muslims so as to force them to flee their communities in
areas intended to form part of a Greater Serbia be construed as evidence of an intent to destroy
those communities? The Convention, like every ot her law, could not have anticipated every form
which genocide might take in future.
37. However, the Convention does contemplate how interpretation of its turgid text would
occur: by the bringing of legal action before qualified judges ⎯ that is the civilized way, that is the
way intended by the Convention. The Conventio n contemplates actions precisely like this one,
before, precisely, this Court. And it contemplates criminal proceedings before an international
30
Security Council resolution 955, 8 November 1994.
3Counter-Memorial, p. 299, para. 4.3.1.1. - 21 -
criminal tribunal. Since the Rwanda and Yugoslav Tribunals have been in operation for more than
a decade, it is completely appropriate to examine that jurisprudence to see how the terms of the
Convention have been illuminated in the various circumstances of its application.
38. The Respondents do not like this.
39. Should we dignify with a response the unsubstantiated insult of the Respondent’s
Rejoinder memorandum of 22 February 1999 that, “[t]here are serious reasons for doubt about the
correctness of the legal findings and views” of the Yugoslav Tribunal? Should we respond to the
allegation of “[e]xtreme insufficiency of lega l regulations on the basis of which the Tribunal
functions”? Need we rebut the charge that the Tribunal’s procedure “remains completely
32
unregulated”? The judges of the Tribunal for the former Yugoslavia are accused by the
Respondent of an “unbalanced attitude... towards the three parties to the conflict in Bosnia and
Herzegovina”. And that allegation is supported by the claim that “a large disproportion in the
number of accused Serbs has been charged in comparison with that of accused Muslims” 33. Well,
there were more Germans than French in the dock at Nuremberg. Should we have to address such
scurrilous pleadings? We think it beneath judicial dignity.
40. In fact, since the exchange of written pl eadings in this case, more Bosnian Muslims and
Bosnian Croats have been indicted, but they have been charged with lesser offences than those
levelled at Serb leaders who have been charged w ith genocide. This disparity in the number and
gravity of offences charged is directly attributable to the facts in Bosnia, and provide evidence of
the infinitely greater volume and degree of culpability on the one side as compared to the other.
41. Rather than respond to every desperate attempt to discredit the Yugoslav Tribunal and its
jurisprudence, we will proceed on the basis that the Court before which we now stand is fully
aware of the legitimacy of both the Yugoslav and Rwandan Tribunals and will proceed to examine
the extent to which those judges’ rulings have enriched the jurisprudence pertaining both to
genocide in general and, in particular, to the interp retation, in practice, of the text of the Genocide
Convention. We are confident that this Court will reject the Respondent’s baseless allegations
against the legitimacy of the criminal courts’ judiciaries.
32
Respondent’s Rejoinder, 22 February 1999, p. 480, paras. 3.1.7 and 3.1.8.
3Id., p. 485, para. 3.1.17. - 22 -
42. Nevertheless, it is instructive that the R espondent continues to deny the findings of the
Yugoslav Tribunal and to attack its legitimacy, rather than face up to the consequences of its
findings. This, it seems to me, makes it all the more important that this good Court exercise its
ultimate power and responsibility in such a fashion that denial of what happened cannot any longer
be the refuge of the perpetrators.
Thank you, Madam President, Members of the Court.
May I now ask, Madam President, that you call upon my colleague Magda Karagiannakis.
The PRESIDENT: Thank you, Professor Franck. I now call upon Ms Karagiannakis.
MsKARAGIANNAKIS: Madam President, Members of the Court, today before the break
and after the break, I shall be addressing you on the issue of camps and detention facilities.
C AMPS AND DETENTION FACILITIES
1. In the summer of 1992 the world was shocked to see images beamed into their living
rooms of starved and mistreated people behind barbed wire fences in the middle of Europe. These
pictures were filmed in the most notorious camps in Bosnia and Herzegovina where Muslims were
systematically detained in inhumane conditions, and beaten, tortured, raped, killed, simply because
people of their ethnicity had to be cleansed from the territory claimed by the Serbs.
2. In this part of the pleadings we will not repeat our written pleadings on the issue which are
set out in sections 5 and 7 in our Reply. Rath er we will seek to demonstrate from additional
sources that have come to light since then which demonstrate, with the use of well documented
examples, where the camps fitted into the blueprint of ethnic purification and what happened.
3. Given the notoriety of the camps and th e numerous United Nations reports addressing
them, which we have set out in our Reply, it is no surprise that the Yugoslav Tribunal investigated
them. These investigations resulted in a number of indictments and final judgments regarding local
camp guards and commanders and local politicians and military personnel, particularly in the
Prijedor and Foca municipalities. These indictments and associated judgments were limited in
scope both territorially and temporally. - 23 -
4. A much broader selection of detention facilities, both in number and location, were
included in the charges of the highest level politicians and military personnel of the former
Republic of Yugoslavia (FRY) and the Republic of Srpska (RS). For example, one judge who was
a former detainee in Manjaca camp and representative of an association of former camp inmates
testified, in relation to the Indictment against President Plavsi ć, that in the 37 municipalities listed,
there was a total of 408 detention facilities where Muslims and other non-Serbs were detained by
force and exposed to serious physical and mental abuse 34. The most important of the high-level
accused who are charged with genocide, such as Karadzi ć and Mladi ć, remain fugitives from
justice and others are currently in a defence case of their trials such as Milosević and Krajisnik.
5. Therefore, it is this Court that will be th e first international judicial body which will have
the opportunity to decide upon the “big picture” of the camps system in Bosnia. The ICTY sources
could assist this Court in this task, because a numb er of its chambers have specifically examined
some examples of the Serb-run camps.
A. Camp numbers and locations
6. According to the Allian ce of Detainees of Bosnia and Herzegovina, 520 camps and
detention facilities existed under Serb control, whic h were active in 50 different municipalities in
Bosnia from 1992 until 1995. Estimates of how ma ny people were detained there range from a
provisional minimum estimate by the Alliance of Detainees of 100,000 people and up to
35
200,000 people reported by other sources, including non-governmental organizations .
7. In the following diagram you will be able to see where these camps were and how many
were situated in each municipality. The municipa lities are coloured in blue and the number inside
of the municipality border is the number of camps and detention facilities.
8. The Court has been provided with another map which sets out the names of each of the
municipalities, so that it may better understand the diagram. The picture is obvious.
34
ICTY, Prosecutor v. Plavsić, Sentencing Judgment, case No. IT-00-39 and 40/1, 27 February 2003, para. 45.
3Exhibit No. P404.7a; Testimony of Malesević, Monday 10 March 2003, in ICTY, Prosecutor v. Milosević, case
No. IT-02-54-T. - 24 -
B. Camps: an integral part of the ethnic cleansing blueprint
9. These camps were, in fact, a part of a high-leve l plan of the Serb leadership to rid the land
they claimed as theirs of Muslims and Croats.
10. As we have explained earlier, the Bosnian Serb leadership sought implement the Greater
Serbia aim in Bosnia. They did so by seekin g to create a contiguous block of ethnically pure
territory, pursuant to Strategic Objectives of the Serbian People announced by Radovan Karadzić in
the Assembly of the Serbian People on 12 May 1992.
11. According to David Harland, a United Na tions Civil Affairs and Political Officer based
in Sarajevo from 1993, members of the Bosnian Serb leadership expressed their resolve to achieve
the objective at all costs, and that Radovan Karadzi ć, in particular, in his pre-conflict statements,
forecast the extermination of the Bosnian Muslim population in the event of war.
Radovan Karadzić stated, “[w]e will use this Serbia n-supported war machine to make life
36
impossible for civilians”, to terrorize the civilians in order to reach a particular goal .
12. This aim, and the place of detention facilities in achieving it, was confirmed by
Mrs. Plavsić in the Agreed Facts accompanying her plea of guilty. There it is stated that the:
“Bosnian Serb military, police and civilian forces, collaborating with the JNA,
the MUP of Serbia and paramilitary units committed persecutions upon non-Serb
population through acts including ‘unlawful de tention and killing’ and ‘cruel and
inhumane treatment and inhumane conditions in detention facilities’.”
Mrs. Plavsić acknowledges these acts “were committed in furtherance of the objective of ethnic
separation by force and are supported by th e evidence and are acknowledged... as having
37
occurred” . These general facts are consistent with the findings of relevant United Nations reports
and the findings of the Tribunal.
13. These facts are further fortified by recent findings of the trial chamber hearing the case of
the Momćilo Krajisnik. He was a member of the co llective Presidency of the Republika Srpska
with Mrs. Plavsi ć, and the President of its Assembly. This chamber was dealing with genocide
charges relating to, among other things, approxi mately 400 detention facilities in 37Bosnian
36
Testimony of Harland, Thursday 18 Sept ember 2003, transcript p. 27004 and ICTY, Prosecutor v. Milosevic,
Decision on Motion for Judgment of Acquittal, case No. IT-02- 54-T, 16 June 2004, para. 240.
3ICTY, Prosecutor v. Plavsić, Factual Basis for Plea of Guilt, case No. IT-00-39 and 40, 30 September 2002,
paras. 10 and 19. - 25 -
municipalities. In its Decision on the Defence Motion for Acquittal the trial chamber found that
there was evidence that:
“civilians were systematically detained for periods ranging from a few days to several
months in what were frequently makeshif t detention facilities. Detainees were, as a
rule, kept in crowded, unsanitary conditions, with very little food or water. Many
were killed, or subjected to severe physical or psychological abuse, including beatings,
torture, or rape. Some detainees were forced to perform labour at front lines, or forced
to act as human shields in combat situations . There is evidence that several persons
used in those ways were killed.”
That trial chamber also found that there was evidence that:
“the Bosnian Serb leadership received extensive information from a variety of sources
about the existence of detention facilities fo r Bosnian Muslims and Bosnian Croats in
the indictment municipalities and the treatment meted out in those facilities. For
example, in July 1992 Biljana Plavsi ć stated that she was aware of 3,000 non-Serbs
38
who were being detained in Omarska camp in Prijedor.”
14. These findings are not yet part of a final judgment. However, they are based on
voluminous and extremely detailed evidence which h as been tested by the defence and scrutinized
by the judges, in a trial that began more than two years ago. The same is also true for another
finding of this chamber which has a particular re levance to this case where it was held that there
was evidence that:
“these Serb leaders and their political and military subordi nates intended to
accomplish the task of creating a Serb-dominated territory through any means, and in
particular through killings, unlawful detenti on, physical or psychological abuse, and
deportation of Muslim and Croat civilians, and destruction of their cultural
monuments. The evidence is sufficient to infer an intent at the top level to destroy not
only the part of the Bosnian Muslim group living in the territory slated to become
Republika S39ska, but also the part of the Bosnian Croat group living in that
territory.”
15. Bosnia has demonstrated facts related to camps in its Reply through reference to United
Nations reports, the reports of United Nations Member States, the ICRC and the reports of
journalists who were witnesses to their terrible existence. These sources are overwhelming. They
have not been undermined by the passage of time but have only been bolstered by more specific
factual findings of the ICTY to which we will turn next.
38
ICTY, Prosecutor v. Momćilo Krajisnik, Decision on the Defence Motion for Acquittal under Rule 98 bis, case
No. IT-00-39-T for Friday, 19 August 2005, transcript pp. 17128-17130.
3ICTY, Prosecutor v. Momćilo Krajisnik, Decision on the Defence Motion for Acquittal under Rule 98 bis, case
No. IT-00-39-T for Friday, 19 August 2005, transcript pp. 17130-17131. - 26 -
C. Examples in eastern Bosnia
16. The following examples of detention facilities come from eastern Bosnian municipalities
along or close to the Drina River. In this rega rd it is important to recall the overall strategic
objective of the Serbian people, which was the separation of the ethnicities and the strategic
objective numbered three which required the estab lishment a corridor in the Drina River Valley
thereby eliminating the Drina as a border separating Serbian states. The following examples
demonstrate the eradication of the non-Serb presen ce from these municipalities and the role of the
detention facilities in this process.
(iVlasenica municipality
17. One of the major camps in eastern Bosnia was Susica Camp in Vlasenica municipality.
The appalling things that happened there were addr essed in Section5 of Bosnia’s Reply. Since
then the horrors of that place have been confirmed by its former camp Commander,
Dragan Nikolić. He confessed his guilt and admitted all factual details contained in his indictment
in open court on 4September 2003 and a sentenci ng judgment ensued setting out the pertinent
facts40. The events relating to the camp demonstrate the pattern of arrest, detention and deportation
that was being repeated all over Serb-claimed territory as each municipality was taken over by Serb
forces.
18. On or about 21April 1992 the town of Vlasenica was taken over by Serb forces
consisting of the JNA, paramilitary forces and ar med locals. Many Muslims and other non-Serbs
fled from the Vlasenica area, and from May 1992 an d continuing until September 1992, those who
had remained were either deported or arrested.
19. Susica Camp was established in late May or early June 1992 and operated until about
30 September 1992. During this time as many as 8,000 Muslim civilians and other non-Serbs from
Vlasenica and the surrounding villages were detain ed there. Men, women and children were
detained in Susica camp, some being detained as entire families. They were subjected to inhumane
living conditions. They were deprived of adequa te food, water, medical care, sleeping and toilet
facilities. An atmosphere of terror reigned in the camp.
40
ICTY, Prosecutor v. Dragan Nikolić, Sentencing Judgment, case No. IT-94-2-S, 18 December 2003. - 27 -
20. The guards brutally beat the detainees on a daily basis. Many were beaten to death. Axe
handles, metal knuckles, iron bars, rifle butts and rubb er tubing with lead inside, were used. After
one detainee was subjected to numerous terrible beatings, the camp commander approached him
and said words to the effect of: “I can’t believe how an animal like this can’t die; he must have
two hearts.” He then proceeded to beat him again and stomped on his chest. The camp
commander personally participated in nine vicious murders of non-Serb detainees. In one example,
the camp commander repeatedly beat a 60 year ol d man over a seven-day period, kicking him and
using a metal pipe. On each occasion he would be beaten into uncon sciousness until he finally
succumbed to death. Women were raped and sexually assaulted by camp guards or other men who
were allowed to enter and take them out. When they came back they were traumatized and
distraught.
21. The detainees were forcibly transferred from the camp and Vlasenica municipality. At
the end of June 1992, large numbers of the male detainees were transferred from Susica camp to
the larger Batkovic detention camp located near Bijeljina in eastern Bosnia, whereas most of the
women and children detainees were transferred to Bosnian Muslim-controlled territory. By
September 1992, virtually no Muslims or other non-Serbs remained in Vlasenica.
(ii)Fo ča municipality
22. The largest detention facility in the municipality of Fo ča was the KP Dom facility.
Again this camp was addressed in Section5 of Bosnia’s Reply. Since that time, the camp
commander of that facility, Milorad Krnojelać, was tried and convicted by the ICTY in relation to
41
what occurred there . This was only one of the places where non-Serbs were imprisoned, tortured,
raped and mistreated. Many of these other camps have been the subject of other judgments relating
42
to local military personnel participating in rape and detention of Muslim women and girls . These
4ICTY, Prosecutor v. Krnojelać, Trial Judgment, case No. IT-97-25-T, 15 March 2002; ICTProsecutor v.
Krnojelać, Judgment, case No. IT-97-25-A, 17 September 2003.
4Also see ICTY, Prosecutor v. Kunarać et al., Judgment, case No. IT-96-23&23/1, 22 February 2001; ICTY,
Prosecutor v. Kunarać et al., Judgment, case No. IT-96-23, IT-96-23/1-A, 12 June 2002 . - 28 -
judgments have been confirmed on appeal and are the subject of a body of adjudicated facts from
43
this municipality which tells the awful story of what happened there .
23. The main Serb attack on Foca town focused on the Muslim areas of the town and started
on 8April 1992. The Serb forces included sold iers from Montenegro and Yugoslavia, and in
particular a paramilitary formation known as the Wh ite Eagles as well as local Serb forces. After
the takeover of the town, Muslims were referred to as “balija”, they couldn’t work, they couldn’t
meet, their telephone lines were cut, their homes we re searched, their businesses were looted or
burned and their equipment was seized. Their nei ghbourhoods were systematically destroyed. As
Muslim houses burned, fire engines protected Serb houses. The Muslim civilian population,
including women and children, was brutalized and killed or detained. Their mosques were blown
up or burned.
24. But following the successful takeover of Fo ca town, the attack on the non-Serb civilian
population continued and the Serb forces continued to take over or destroy Muslim villages in the
municipality. The campaign was also waged against the Muslim civilian populations of
neighbouring municipalities of Gacko and Kalinovik. Once the towns and villages were securely
in their hands the Serb forces applied the same pattern: Mus lim houses and apartments were
systematically ransacked or burnt down, Mus lim villagers were rounded up or captured, and
sometimes beaten or killed in the process. Fo r example, on one occasion Serb troops followed
fleeing Muslims in the direction of Gorazde and captured civilians taking shelter at the JNA fuel
depot warehouse at Pilipovići. Muslim men were separated from the women and children. The
Serb forces selected several men whose names were on a list and arbitrarily selected several others.
These nine men were separated from the others and shot. One escaped, one survived.
25. Almost all the remaining Muslim men and women from Foca, Gacko and Kalinovik
municipalities were arrested, rounded up, separated fro m each other, and imprisoned or detained at
several detention centres like Buk Bijela, Ka linovik High School, Partizan and Foca High School
as well as the KP Dom in Foca, in accordance with the recurring pattern. Some of them were
killed, raped or severely beaten. The sole reason for this treatment of civilians was their Muslim
4ICTY, Prosecutor v. Krajisnik, Decision on Third and Fourth Prosecution Motions for Judicial Notice of
Adjudicated Facts, IT- 00-39-PT, 24 March 2005, Annex, pp. 9-22. - 29 -
ethnicity. The Muslim detainees held at the Kalinovik High School, Foca High School and
Partizan Sports Hall were guarded and kept in an atmosphere of intimidation without hygienic
conditions and insufficient food.
26. Sexual abuses and mass rape in these a nd other detention facilities in Foca will be
addressed in more detail during the presentation of Professor Stern on Thursday.
27. The KP Dom had previously been a pris on facility in Bosnia. From 17April1992
soldiers from the Užice Corps in Serbia, a part of the JNA, were running KP Dom, this was
occurring after the time that Bosnia had been recognized by the international community as an
independent State. The control of this prison was transferred to local Serbs during the course of the
following weeks 4. The warden of the prison ⎯ the subsequent warden of the prison ⎯ was
responsible to the Bosnian Serb Ministry of Justi ce and, to a certain extent, to the local military
command.
28. Prisoners at KP Dom, which had previously served as a prison in Bosnia, numbered
between 350 and 500 people, with peaks at about 7 50 detainees. The detention facility operated
from April1992 until October1994. Muslim men were interned just because of their ethnicity,
sometimes for periods of up to two-and-a-half y ears. The non-Serb detainees were forced to
endure brutal and inadequate living conditions whil e being detained at the KP Dom; they were
tortured and beaten during interrogation and many of the men who were detained there were killed.
29. In exhumations conducted in the Foča area, 375 bodies were identified by the State
Commission for the Tracing of Missing Persons. All but one of these was Muslim. The remaining
person was a Montenegrin who married to a Muslim.
30. Most of the surviving non-Serb popul ation was eventually forced to leave Foča. All
traces of Muslim presence in Fo ča, which had a Muslim majority in 1991, and its culture were
wiped out of Fo ča. In January1994, the Serb authorities crowned their complete victory by
renaming Foča, “Srbinje”, literally the town of the Serbs.
I will now move to examples in Bosnian Krajina.
4ICTY, Prosecutor v. Krajisnik, Decision on Third and Fourth Prosecution Motions for Judicial Notice of
Adjudicated Facts, IT- 00-39-PT, 24 March 2005, Ann. para. 467. - 30 -
D. Examples in Bosnian Krajina
(i) Bosnian Krajina in general
31. The region referred to as Bosnian Krajina is in the north-western part of Bosnia and is
just over the border from the territory of the self-p roclaimed Republika Srpska Krajina in Croatia.
Apart from the first strategic goal of the Serbian People, that is ethnic separation, the other strategic
goal which is pertinent to this area is the second goal, which required the setting up of a corridor
between Semberija, an area in the north-eastern corner of Bosnia, and Krajina.
32. The Brdanin judgment made the following findings in relation to the camps in this area:
“In the spring of 1992, camps and othe r detention facilities were established
throughout the territory of the Bosnian Krajina in army barracks and compounds,
factories, schools, sport facilities, police stations and other public buildings. These
camps and detention facilities were set up an d controlled by the Bosnian Serb army,
civilian authorities or the Bosnian Serb poli ce. Non-Serb civilians were arrested en
masse and detained in these camps and dete ntion facilities... While prominent
members of the SDA and the HDZ were among the first to be arrested, the
overwhelming majority were normal citizens arrested solely because of their
ethnicity ... Inmates were interrogated, beaten, subjected to inhuman and degrading
conditions of life and tortured. Women we re raped and killings occurred on a regular
45
basis.
33. Before proceeding to discuss examples of the camps in Bosnian Krajina it is important to
provide a context to what occurred in this region. The trial chamber in the Brdanin case found that
it was satisfied beyond reasonable doubt that “there was a coherent, consistent strategy of ethnic
cleansing” against Bosnian Muslims in this region which was implemented by several means 46. It
went on to describe these means.
34. Military operations were carried out against towns and villages that were not military
targets. Attacks were carried out in Prijedor, Sanski Most, Bosanski Novi, Klju č, Teslić, and
Kotor Varoš among others. Such military operations were undertaken with the specific purpose of
driving the Bosnian Muslim and Bosnian Croat residents away. The displacement of persons was
not simply a consequence of military action, but the aim of it. Following these attacks on towns
and villages, Bosnian Muslim and Bosnian Croa t men, women and children were rounded up and
often separated from each other. Most of them were confined to camps and detention centres for
45
ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, para. 115.
4ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, paras. 548-551. - 31 -
varying lengths of time. Most of these people were then deported or forcibly transferred, some of
them transferred immediately. The expulsion of Bosnian Muslims and Bosnian Croats was often
accompanied by a widespread destru ction of their homes and institutions dedicated to religion.
These expulsions and forcible removals were system atic throughout the region. Tens of thousands
of Bosnian Muslims and Bosnian Croats were permanently displaced. This mass forcible
displacement was intended to ensure the ethnic cleansing of the region.
(ii) Sanski Most municipality
47
35. Relevant findings have also been made in respect of Sanski Most municipality . The
SDS took over the municipality on 19April1992 through an armed attack on the municipality
building conducted by the JNA’s 6th Krajina Corps, territorial defence forces and members of a
Bosnian Serb paramilitary group known as the Red Berets. At the end of May 1992, after calls for
disarmament had been made, attacks were la unched on the Bosnian Muslim neighbourhoods and
villages. These attacks were planned well in adva nce by the army and the municipal crisis staff,
and they were carried out by the army acting jointly with a local paramilitary group. They would
begin with heavy shelling from outside the target ed neighbourhoods or villages. This shelling
caused severe damage and people were killed. Th e shelling forced the inhabitants of these villages
to flee. After the troops had entered the villages, a number of people who had not fled, were killed.
Houses were looted and fleeing persons’ belongings were taken from them.
36. There are a number of examples of particularly brutal killings of non-Serb men, women
and children in this municipality. After the attack on the Muslim hamlet of Begići by Bosnian Serb
soldiers, the men were separated from the women and between 20 and 30 of them were taken to
Vrhpolje bridge over the Sanna River. They were ordered to jump off one by one. As they landed
in the water the soldiers shot them. Twenty-eight people were killed.
37. On 31 May 1992, soldiers in JNA unifor ms, who referred to themselves as the ‘Serbian
Army’, came to the Muslim village of Hrustovo. Muslim women, children and one man gathered
in a garage adjacent to Ibrahim Merdanovi ć’s house. At one point, Bosnian Serb soldiers came to
the garage and started shouting. Shots were fired, and the people inside the garage panicked. The
4ICTY, Prosecutor v. Brdanin, Judgment , case No. IT-99-36-T, 1 September 2004 paras.101; 632-633
(takeover) 416-422; 451-452; 454 (killings); 868-886 (camps). - 32 -
only man inside walked out and was shot dead immedi ately. Then, the soldiers started to fire into
the garage randomly. Some people left the garage and tried to escape, but the soldiers continued to
shoot at them as they fled. At least 15 members of the Merdanović family were killed that day.
38. The killings continued. On 22June 1992, Bosnian Serb soldiers ordered around
20Muslim men to dig a hole in a stream flowing below the area near the Partisan Cemetery in
Sanski Most. All but three of them did not finish with the work because their throats were slit by
one of the soldiers. After Bosnian Serb soldiers attacked the Muslim hamlet of Budim on
1August1992 they executed 14members of the Alibegovi ć family, all of whom were unarmed
civilians. Seven Bosnian Croats were execu ted by paramilitaries in the Glamonica forest on
2 November 1992.
39. Beginning 27 May 1992, Muslim and Croa t civilians were detained both by regular and
Bosnian Serb military police and confined in detention facilities in Sanski Most until about the end
of August 1992. They were detained in places including the SUP building, Betonirka, Hasan Kikić
gymnasium and the Magarice military facility.
40. As of early June 1992, Bosnian Muslim civilians detained in facilities in Sanski Most and
the surrounding area were brought to the Manja ča camp in Banja Luka, on a large scale. Civilian
and military police from both Banja Luka and Sanski Most were in charge of putting together and
escorting the convoys. Two hundred and fourteen Bosnian Muslim men were transported on two
dates, 6June and 7July 1992. Upon arrival of the first group at Manja ča camp, at least six
prisoners were beaten and subse quently killed by policemen from Sanski Most. Twenty prisoners
died during the second transportation because of th e overcrowding, heat and lack of water during
the nine-hour transportation.
Madam President, I see that it is 11.22. Perhaps it would be a good moment to take a break?
The PRESIDENT: Yes, thank you. Before we do so, could I come back to the plan, the
graphic you presented us of the camps and detention facilities at the beginning of your presentation.
What is the provenance of this? Is it somethi ng that Bosnia and Herze govina had made specially
for the judges’ folders and upon what data is it based? - 33 -
Ms KARAGIANNAKIS: Yes, Madam President, it is based on the testimony of
Mrs. Milošević from the Alliance of Detainees of Bosnia a nd Herzegovina and it is also based on
her analysis as produced in Exhibit No. P4-04-7A in that trial. It was not produced upon the
request of the Bosnian Government but it is an independent document and exhibit in the Miloševi ć
trial.
The PRESIDENT: It is obviously helpful to understand from the graphics these things and
the same question will arise about the one that I s uppose we will come to later in the morning on
the destruction of cultural property.
The Court will rise.
The Court adjourned from 11.25 to 11.35 a.m.
The PRESIDENT: Please be seated. You have the floor.
Ms KARAGIANNAKIS: I now move to Prijedor municipality.
(iii) Prijedor municipality
41. The notorious camps in Prijedor were th e focus of numerous United Nations and civilian
society reports which have been set out in our Re ply. Since these reports were issued, the facts
contained in them have been c onfirmed and made even more vivid, by a series of judgments and
48
guilty pleas at the ICTY specifically focusing on this municipality . The camps in this
municipality are also the subject of adjudicated facts from the ICTY chambers that put the
49
atrocities that happened there beyond any doubt .
42. On 30 April 1992, life changed overnight, within 24 hours, in the Prijedor area. On that
day, Serb forces conducted a bloodless takeover of the town of Prijedor and declared their intention
48
ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004; ICTY, Prosecutor v. Mrda,
Sentencing Judgment, case No. IT- 02-59-S, 31 March 2004; ICTY, Prosecutor v. Stakic, Judgment, case
No. IT-97-24-T, 31 July 2003; ICTY, Prosecutor v. Kvocka et al., Judgment, case No. IT-98-30-PT, 2 November 2001;
ICTY, Prosecutor v. Kvocka et al. , Judgment, case No. IT-98-30/1-A, 28 February 2005; ICTY, Prosecutor v.
Predrag Banović, Sentencing Judgment, case No. IT- 02-65/1-S, 28 October 2003; ICTY, Prosecutor v. Sikirica et al.,
Sentencing Judgment, case No. IT-9 5-8-S, 13 November 2001; ICTY, Prosecutor v. Tadić, Judgment, case
No. IT-94-1-A, 15 July 1999; ICTY, Prosecutor v. Tadić, Opinion and Judgment, case No. IT-94-1-T, 7 May 1997 and
ICTY, Prosecutor v. Milosević, Decision on motion for Judgment of Acquittal, case No. IT-02-54-T, 16 June 2004.
49ICTY, Prosecutor v. Krajisnik, Decision on Third and Fourth Prosecution Motions for Judicial Notice of
Adjudicated Facts, case No. IT-00-39-PT, 24 March 2005, Ann., pp. 22-38. - 34 -
to rename the territory the “Serb municipality of Prijedor”. After the takeover, non-Serbs were
dismissed from their jobs, their children were no longer allowed to attend school and their
movements were restricted. Propaganda against Muslims and Croats was broadcast on the radio
50
and both mosques and Catholic churches were targeted for destruction .
43. The forces which executed this takeover were the JNA and local police. This was one of
the JNA military operations which had comme nced before 19 May 1992 but did not cease
immediately on that day. The same elements of the VJ continued to be directly involved in this
operation after that date. Indeed, the attack on the Muslim area of Kozarac was continued by the
same JNA unit restyled as a VRS 1st Krajina unit with the same officers in command 51.
44. Between May and July 1992, the predom inantly Muslim and Croat inhabited areas and
villages were attacked by the Bosnian Serb army acting jointly with the police and the paramilitary
groups. Attacks were conducted by intensive sh elling with heavy armed weaponry. Houses in
Muslim villages and neighbourhoods were targeted and shelled indiscriminately, resulting in
extensive destruction and civilian casualties. Many of the survivors fled the villages and sought
shelter in the surrounding forests. After the she lling, armed soldiers ente red the villages, looted
and torched houses, and expelled or killed some of the villagers who remained behind. Women
52
were raped. Countless Muslim civilians were killed during these attacks .
45. At the end of May 1992, after the takeover of Prijedor and the outlying areas, women and
children were separated from the men before th ey were all loaded onto buses and taken to
Trnopolje, Omarska or Keraterm where the Serb forces confined thousands of these civilians.
Generally, the men were taken to Keraterm and Omarska dete ntion camps and the women to
Trnopolje. Male and female pris oners were subjected to severe mistreatment, which included
beatings, sexual assaults, torture, and summary executions. Prisoners were guarded by uniformed
and armed soldiers, police forces, local Serb milita ry or territorial defence (TO) units, who would
racially abuse the prisoners calling them “Balijas ”, a derogatory term for Muslim people, or
50
ICTY, Prosecutor v. Kvocka et al., Judgment, case No. IT-98-30-PT, 2 November 2001, para. 1.
51
ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, para. 151, footnote 391.
5ICTY, Prosecutor v. Brdanin, Judgment , case No. IT-99-36-T, 1 September 2004, paras.104, 151,
footnotes 391 and 401-415. - 35 -
“Ustasha”. Members of paramilitary organizations and local Serbs were routinely allowed to enter
the camps to abuse, beat, and kill prisoners 53.
(a) Omarska
46. During the summer of 1992, Omarska contained about 3,000 mainly Bosnian Muslim,
detainees. This is one of the most notorious camps in Bosnia and Herzegovina. One survivor
described the confines of the camp as follows:
“The Omarska camp wasn’t surrounded by barbed wire, but it was as secure as
a stone fortress. It was encircled by three rings of guards, with 30 guards in each ring.
One ring was in the camp, the second some 50 yards beyond, and the third about one
100yards from the first ring. The first and second group kept an eye on the camp
itself to make sure no prisoners ran away; the third protected the camp from any
possible invaders.” 54
47. Inmates in Omarska were divided into three categories:
“Category one comprised intellectuals and political leaders from the Bosnian
Muslim and Bosnian Croat communities, w ho were earmarked for elimination.
Persons who associated themselves with tho se from the first category would fall into
the second category, and the third category encompassed detainees that were in the
view of the Bosnian Serb authorities, the l east ‘guilty’, and eventually were to be
released. However, in practice, people from all three categories were kept detained in
the camp.” 55
48. Prominent members of the Muslim and Croat communities were specifically targeted and
killed there. At the end of July 1992, the killi ng of inmates with a special professional background
started. One night, lawyers were targeted, following which policemen and physicians were marked
for killing.
49. The fate of one of the physicians in Omarksa was described as follows:
“sari.kovi ć, a physician, had previously worked for the United Nations
High Commissioner for Refugees (UNHCR) and was described as a charismatic and
deeply humane person. In Omarska, he helped other detainees wherever he could, and
was regarded as a ‘moral and spiritual authority’. One night, a camp guard appeared
and said: ‘Dr.Eso Sadikovi ć, come out and take your stuff with you.’ The other
detainees knew that this meant he would not return. Everybody stood up and bid him
56
farewell.”
53
ICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No. IT-02-54-T,
16 June 2004, para. 183.
54
“The Tenth Circle of Hell: A Memoir of Life in the Death Camps of Bosnia” by Rezak Hukanovć, (1996),
p. 85.
55
ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, para. 443.
5ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, para. 445. - 36 -
He was taken out and killed.
50. Between 30 and 35 women were also detained in Omarska. They were frequently called
out by the camp Commander and the camp guards a nd raped. They were later transferred to
Trnopolje camp. Minors and mentally impaired non-Serb people were also imprisoned in
Omarska.
51. Prisoners were held in large numbers in very confined spaces, with little room either to
sit or to lie down to sleep. Sometimes 200 persons were held in a room of 40 sq m. Prisoners were
even crowded into lavatories where they were packed one on top of the other and often they had to
lie amidst excrement. Hunger was acute with some prisoners loosing 20 to 30kg in body weight
during their time there and others considerably more 57.
52. The detainees were severely beaten. They were tortured. They were killed. Many of the
killings at Omarska camp were committed at the building known as the “White House”. Incoming
detainees recount that dead bodies were lying around there on various occasions, and the inside of
the “White House” was covered with blood. Edin Elkaz, who was taken there, remembered that
“you could still see bits of flesh or brains [there] the next day” 58. This same Omarska survivor
recounted how he was beaten into unconsciousness:
“The barrel [of the gun] was in my mouth and I was receiving double blows
with a rubber baton and with a metal spring... My head was bursting, blood was
bursting. It was awful. My teeth were breaking. Everything was breaking. I cannot
remember exactly which blow was the last one. The last one was really terrible . . . I
do not know whether the barrel was out of my mouth at the moment or before that, but
I received a terrible blow there and everything burst.” 59
53. Killings also occurred at the “Red House”. Detainees were deprived of their lives in
various ways. Many of them were so severely beat en that they died from their injuries. Others
were riddled by bullets, jumped on by camp guards, or strangled. Many were called out never to be
seen again.
57
ICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No. IT-02-54-T,
16 June 2004, paras. 191-193.
58
Raw memory, Prijedor: an “Ethnic Cleansing Laboratory”, by Isabelle Wesselingh and Arnaud Vaulerin, p. 53.
5Ibid., p. 52. - 37 -
(b) Keraterm
54. Another notorious camp in Prijedor was Keraterm. Keraterm began operating on
25May1992 and held up to 1,500 prisoners crow ded into a number of large rooms or halls.
Conditions in Keraterm were atrocious. Prisoners were crowded into its unlit, windowless,
unventilated rooms with as many as 570 in one room. Prisoners were kept locked in these rooms
for days on end. The pattern recurred; the f ood, water, sanitation and medical treatment were
woefully inadequate or non-existent.
55. Detainees were beaten, tortured and killed. During July 1992, the approximately
200Bosnian Muslim cleansed men from the Brdo area were crammed into room3 and were
executed. Witnesses heard the sound of breaking meta l and shattered glass, and human cries. The
next morning, dead bodies were piled outside room 3, and the entire area was covered in blood. A
truck arrived to carry away the bodies. When the truck left, blood could be seen dripping from it.
A fire engine was used to clean room 3 and the surrounding area from the traces of the massacre.
(c) Trnopolje
56. The third most notorious camp in Prije dor was Trnopolje. Trnopolje held thousands of
prisoners, most of whom were older men and wome n and children. They were detained there by
armed guards. No food was supplied by the camp authorities. Because the Trnopolje camp housed
the largest number of women and girls, there were more rapes at this camp than at any other, with
girls between the ages of 16 and 19 at greatest risk.
57. Detainees were also taken from this ca mp and massacred. On 21August 1992, four
buses comprised only of men set off from Trnopolje camp. At a junction near Kozarac, the buses
from Trnopolje were joined by other buses full of prisoners. Two of the buses headed towards the
line of separation between Bosnian Serb- and Bosn ian Muslim-controlled territory. Two of these
buses stopped on the road at Kori ćanske Stijene. On one side th ere was a deep gorge, and on the
other side was a steep face of rock. The men from the buses were taken in a column to the edge of
the cliff and ordered to kneel down. Before the victims were executed, they cried and pleaded for
their lives. Then the shooting started. The dead bodies fell into th e abyss or were pushed over the
edge, sometimes by other Bosnian Muslims prior to their own execution. Grenades were thrown
into the gorge to make sure no one would survive. At a minimum, 200 men were killed. - 38 -
58. The Trnopolje camp was the culminati on of the campaign of ethnic cleansing because
those Muslims and Croats who were not killed at the Omarska or Keraterm camps were sent to
Trnopolje, and then deported from Bosnia.
59. According to the 1991 census the population of Prijedor was 112,543. Of those
43.85 per cent were Bosniaks, 42.48 per cent were Serbs and there were 5.61percent Croats.
Bosniaks and Croats constituted the largest ethni c group in the municipality whereas most of the
60
municipalities surrounding Prijedor ha d a majority Serb population . By 1995, ethnic cleansing
had been so successful that the population had dropped to 66,100, of which 92.28percent was
61
Serb, 5.44percent Muslim and 1.51percent Croat . Thus the Muslim and Croat population of
Prijedor, which had been in the majority in 1991, had been almost completely cleansed from this
municipality.
(iv) Banja Luka municipality
60. We now move to the Banja Luka municipality. The most horrific camp in Banja Luka
municipality was Manjaca. It began operati ng as a detention camp on 15 May 1992 and contained
62
predominantly Muslim men and minors. The overwhelming majority of detainees were civilians .
63
Thousands of people were detained there with numbers ranging from 3,640 to 5,434 . In addition
to killings and beatings 64, the sanitary conditions in Manjaca were described as “disastrous...,
inhuman and really brutal”. Manjaca was said to be a “camp of hunger”. Most inmates lost
between 20 and 30 kg of body weight while they were detained there. One survivor stated that he
believed that had the ICRC and UNHCR not arrived, the inmates would have died of starvation” 65.
61. Manjaca was staffed by Bosnian Serb military police and was under the command of the
1stKrajina Corps. This was one of the m ilitary formations that underwent the so-called
transformation process from the JNA to the VRS after 19 May 1992.
60ICTY, Prosecutor v. Tadić, Opinion and Judgment, case No. IT-94-1-T, T, 7 May 1997, para. 128.
61
ICTY, Prosecutor v. Radoslav Brđanin, case No. IT-99-36-T, exhibit P58, pp. 6-7, ERN No. 930356-930357.
62
ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, paras. 749-750.
63ICTY, Prosecutor v. Plavsić, Sentencing Judgment, case No. IT-00-39 and 40/1, 27 February 2003, para. 47.
64ICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No. IT-02-54-T,
16 June 2004, para. 178.
65ICTY, Prosecutor v. Plavsić, Sentencing Judgment, case No. IT-00-39 & 40/1, 27 February 2003, para. 48. - 39 -
62. The camps we have been dealing with in Prijedor and the Manjaca camp in Banja Luka
were discovered by the world’s media. For this reason we have video footage of what they looked
like.
63. Before we turn to those videos, we do have footage of the takeover of Prijedor. [On
screen] There is no sound to this: it is just pictures.
s[crenen]
64. In the next clip we are going to see images of Omarska and hear the comments of a judge
and a journalist who were detained there.
s[crenen]
This explanation provided by the journalists re lated to the visit of the first journalist to
Omarska and the attempts made by the authorities to hide the true fact of what was going on in that
detention facility.
65. In the next sequence we will see images from Trnopolje and Manjaća.
s[crenen]
E. Examples of municipalities linking northern Bosnia and eastern Bosnia
66. I am now going to move on to examples of municipalities linking northern Bosnia and
eastern Bosnia and the detention facilities there. Th e next examples that will be addressed are the
municipalities of Bosanski Šamac and Br čko. At this point it is useful to recall the strategic
objectives of the Serbian people. In addition to the first strategic objective of ethnic separation, the
second strategic goal required setting up a corridor between Semberija and Krajina, essentially
linking the north-western part of Bosnia to the north-eastern part of Bosnia. The municipalities of
Bosanski Šamac and Brčko were in this linkage area.
(i) Bosnanski Šamac municipality
67. One of the earliest examples of camps and the co-ordination of the JNA, Serbian
paramilitaries and local Bosnian Serb forces in th e process of detention and inhuman treatment of - 40 -
non-Serbs can be found in the municipality of Bosan ski Šamac. This municipality was the subject
66
of a multi-defendant trial and judgment of the UNICTY in the Simić case .
68. In this case the Tribunal found that on 17 April 1992, the municipality of
BosanskiŠamac was forcibly taken over by Serb forces, including Serbian paramilitaries and the
JNA. From that time these forces participated in executing a plan to persecute the non-Serb
civilians in the municipality.
69. Following the takeover, hundreds of non-Serb civilians, including men, women, children
and old people, were arrested and detained in va rious detention facilities in the municipality. The
first large-scale arrests were carried out by local Serb police and paramilitary forces from Serbia,
with some later arrests being carried out by the J NA soldiers. Their detention was arbitrary. Their
interrogations were coercive and forced. They were detained because of their non-Serb ethnicity
and political affiliations.
70. The non-Serb civilians were repeatedly and violently beaten in the detention facilities in
Bosanski Šamac and in Crkvina, Brčko, and Bijeljina municipalities. Some were beaten upon their
arrest and others during their imprisonment. Th e implements used included rifles, metal bars,
baseball bats, metal chains, police batons, and chair legs. Some prisoners were beaten while
undergoing interrogation. The beatings were a pplied by paramilitary forces from Serbia, local
policemen, and a few members of the JNA. The beatings took place on a daily basis, day and
night.
71. On one occasion, a victim was beaten in the crotch, and his assailants told him that
Muslims should not propagate. They were tortured through heinous acts of sexual assault, the
threat of execution and the extraction of teeth. This last form of vicious cruelty was recounted by
the Simić chamber:
“When, as a result of the beatings, th e detainees would open their mouths, an
object would be put in to keep the mouth open, and ‘Zubar’ came with his bloody and
rusty pliers and extracted teeth . . . When the gym of the primary school was cleaned
the next morning, over 100 teeth were in the main corridor outs67e the gym...
[T]hese same men went to the TO and pulled teeth there.”
66
ICTY, Prosecutor v. Simić, Judgment, case No. IT-95-9-T, 17 October 2003. See in particular, paras. 442-456;
654-669; 770-772; 984.
6ICTY, Prosecutor v. Simić, Judgment, case No. IT-95-9-T, 17 October 2003, para. 722. - 41 -
72. The trial chamber in the Simić case concluded that
“the detainees who were imprisoned in th e detention centres in Bosanski Šamac were
confined under inhumane conditions. The prisoners were subjected to humiliation and
degradation... They did not have sufficient space, food or water. They suffered
from unhygienic conditions, and they did not have appropriate access to medical care.
These appalling detention conditions, the cruel and inhumane treatment through
beatings and the acts of torture caused sev ere physical suffering, thus attacking the
very fundamentals of human dignity... This was done because of the non-Serb
ethnicity of the detainees.”68
73. One group of approximately 47 Bosnian Mu slim and Bosnian Croat detainees, who were
held in the Territorial Defence building in B onanski Šamac, was transferred at the end of
April1992 by the JNA to the JNA barracks in Br čko where they were guarded by JNA soldiers.
They were held there until the fighting broke out in Br čko on 1 or 2 May 1992. They were then
transferred by a military escort to the JNA barracks in Bijeljina where they were beaten by Serb
forces, including members of the JNA 69. Some were taken back to detention facilities in
BosanaksiŠamac. Some detainees were subject to court proceedings in Bijelina. Significantly,
another group of detainees, including prominent pe rsons, were transferred across the border out of
Bosnia and Herzegovina to Serbia proper, to a place called Batajnica where they were subjected to
so-called trials in May 1992 70. This is a most telling example of the co-operation between the
Bosnian Serbs and their associates across the border.
(ii)Br čko municipality
74. We now move to an example of an atrocious camp in north-eastern Bosnia, in the critical
strategic position of Brčko: the Luka camp. The horrors of the Luka camp were first demonstrated
in Bosnia’s Reply in Section5 and were confirmed most recently by an up-to-date finding of the
ICTY trial chamber hearing the Milosević case. This stated:
“Many Muslim men of Br čko were detained in Luka Camp in May and
June 1992. Witnesses gave testimony describing the manner in which these detainees
were transported by bus to Luka Camp in Br čko. The number of detainees
incarcerated there varied on a daily basis; and [one witness] estimated that the number
of detainees could have been up to 1,500 at any given time. The conditions and
6UNICTY, Prosecutor v. Simić, Judgment, case No. IT-95-9-T, 17 October 2003, para. 773.
69
UNICTY, Prosecutor v. Simić, Judgment, case No. IT-95-9-T, 17 October 2003, para. 718.
7UNICTY, Prosecutor v. Simić, Judgment, case No. IT-95-9-T, 17 October 2003, paras. 667-669. - 42 -
treatment to which the detainees at Luka Camp were subjected were terrible and
included regular beatings, rapes, and killings.” 71
It went on to find:
“At Luka Camp, [one witness] and othe r detainees were forced to remove the
bodies, which typically had marks of beatings and gunshot wounds to the back of the
head. The witness personally moved about 12 to 15 bodies and saw approximately
100bodies stacked up like firewood at Luka camp; each day a refrigerated meat
truck . . . would come to take away the dead bodies.” 72
75. In making its finding that a trial chamber could be satisfied beyond reasonable doubt that
genocide was in fact committed in Br čko, it referred to various additional facts including those
which showed that the non-Serb leadership and particularly members of the SDA, which was the
main Muslim political party, were targeted. For example, people were called out by their surnames
and beaten, because their names were recognized as belonging to those who had been organizers of
the SDA. In another example, one witness saw men from Šešelj’s or Arkan’s group kill a Serb who
had tried to help a Muslim flee the former Yugosla via; later that night, the soldiers killed the
73
Muslim, who was an active member of the SDA .
76. Evidence of the use of lists in Luka also supports the proposition that the Muslim
leadership was particularly targeted. For example during an interrogation one witness saw
Goran Jelesić circle the names of three people on a list and order them to be brought into the office.
When the three Bosnian Muslims came in Jelesić interrogated them, beat them, and then took them
74
out of the office. The witness heard gunshots and screaming afterwards.
77. The existence of lists is supported by a detainee at Luka who was forced to clean the
administration offices. On one occasion, while cleaning one of the offices she saw a list with
50 names on it of mostly prominent, educated or well-off Muslims. The list was titled “The List of
People to be Executed” 75.
71ICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No. IT-02-54-T,
16 June 2004, para. 159.
72UNICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal case No.IT-02-54-T,
16 June 2004, para. 161.
73UNICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No.IT-02-54-T,
16 June 2004, paras. 160, 165-168, 246.
74ICTY, Prosecutor v. Milosević, case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal,
16 June 2004, para. 168.
75Testimony of 6 February 2004, Transcript, p. 612, ICTY Prosecutor v. Krajisnik, case No. IT-00-39-T. - 43 -
78. Non-Serbs were also detained in other parts of the Br čko municipality after its takeover
by Serb forces. For example, one witness in the Milosević case testified that, while detained in the
house of a Muslim in Brč ko by Simo Radovanovi ć (a.k.a. “Captain”), who was a member of the
Red Berets from Serbia, she worked like a servant and was used as an object of sexual gratification
for him 76.
F. Conclusions
79. The conclusion that is forced upon us when confronted with this material is inescapable.
At a minimum 100,000 to a maximum of 200,000 Bosniak and other non-Serb men, women,
77
children and elderly people were imprisoned in camps across Se rb-claimed territory, for no other
reason than their ethnicity. Some were even detained outside the State borders of the independent
Bosnian State, in Serbia proper.
80. People were commonly imprisoned after be ing driven from their homes by Serb forces
including the JNA, the Bosnian Serb Army (VRS ), the Bosnian Serb police and both Bosnian and
Serbian paramilitary formations. Some of the detention centres were actually controlled and
operated by the JNA.
81. The inhumanity of the conditions in ca mps was uniform with little or no sanitation,
shelter, water, food and medical care. Inmates were routinely humiliated and debased. They were
subjected to horrific beatings, rape and other form s of torture by merciless perpetrators including
JNA personnel, the Bosnian Serb army and police, and paramilitaries from Serbia and Bosnia.
Untold numbers died as a result or were cold-bloodedly executed.
82. The leaders of the Bosnian Muslim commun ity were targeted for the worst atrocities and
for elimination, particularly in regions important to the nascent, ethnically “pure”, Serb State. The
survivors of this systematic terrorization were de ported, transferred or exchanged to areas out of
the territory of the Serb-declared areas. The Serb goals were achieved.
7ICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No. IT-02-54-T,
16 June 2004, para. 152.
7Exhibit No. P404.7a; Testimony of Malesevi ć, Monday 10 March 2003, in ICTY, Prosecutor v. Milosević,
case No. IT-02-54-T. - 44 -
83. Madam President, Members of the Court, this concludes my pleading. May I ask you to
give the floor to my colleague Laura Dauban.
The PRESIDENT: Thank you, Ms Karagiannakis. I give the floor to Ms Dauban.
DMAs BAN:
D ESTRUCTION OF CULTURAL HERITAGE IN BOSNIA AND H ERZEGOVINA
1. Madam President, distinguished Members of the Court, as this is the first time I am
pleading before this Court, I would like to say what a very great honour it is for me.
2. During my pleadings, I will be presenting one of the most significant patterns of the
genocide in Bosnia and Herzegovina, a pattern wh ich can only be described as the deliberate
savaging of the country’s rich and unique architectural, bibliographical a nd religious heritage.
Cultural and historical significance and beauty aside, these buildings act as beacons and symbols to
keep the spirit of Bosnia and Herzegovina alive in the hearts of its people, whatever their faiths.
They are the heart and spirit of communities and their presence alone marks some part of the
chronicle of the nation and its people. The destru ction of Bosnia’s cultural heritage, alongside the
horrific ethnic cleansing was nothing less than a ru thless campaign to destroy not only the Bosniak
and Bosnian Croat aspects of the history of Bosnia and Herzegovina but also the very fabric of its
society.
3. In order to show the Court what I mean by the “destruction of cultural heritage” in Bosnia
and Herzegovina, I will be showing the calculate d damage done to and eradication of mosques,
churches, historical landmarks, libraries, manu script collections and ot her landmarks associated
with religion such as schools and offices. For there was not only an obliteration of Bosnia’s
religious heritage but also its written heritaThe characterization by the Committee on Culture
and Education of the Council of Europe of the destruction of cultural heritage in Bosnia as “a
cultural catastrophe in the heart of Europe”8 is very much correct. The ramifications of such
devastation will be felt for years and centuries to come.
78
Council of Europe Parliamentary Assembly, doc. 6756, 2 February 1993. - 45 -
4. Under the Hague Regulations and customary international law, institutions dedicated to
religion are protected. This protection is restated in both Additional Protocols I and II to the
Geneva Conventions. This protection can be lost if the buildings are used for military purposes,
but I intend to show you during the course of my pleadings on this subject that the destruction was
very often carried out in places which were under Bosnian Serb control and thus the fighting for
control of those places had indeed stopped.
The intent behind the destruction
5. Madam President, Members of the Court, such a wanton and deliberate destruction of
religious buildings gives a clear indication of the inte nt of the perpetrators: they wanted to ensure
that the departure of the Bosniak and Bosnian Croat populations would be on a permanent basis.
On top of the physical removal of the non-Serb po pulation, such a destruction of their cultural
heritage shows an attempt to wipe out the traces of their very existence. And not only to forget the
people but also the rich and unique history of Bosnia and Herzegovina: this is what they wanted to
destroy forever.
6. The intent for such a destruction can be seen by the words of those people in positions of
authority in the Bosnian Serb hierarchy. One of the Republika Srpska Assembly delegates,
Miroslav Vjestica, was not concerned about the damage done to the town of Veliki Badic by the
Serbs but he was more worried by the prospect that if the Muslims returned there: “We will have
to compensate them for everything that we destroyed and burned there and the 17 mosques we
79
razed to the ground.” The razing of churches and mosques was inextricably linked to the
cleansing of villages, towns and municipalities.
7. The eradication of the mosques in Bijeljina, was justified by the town’s mayor in 1996,
when he stated that: “For six centuries, mosques were synonymous with evil in this area... I
don’t want my children to see mosques again, ever ... We don’t want to live in any kind of
common country with them.” 80 These sorts of statements show the sort of misplaced ideological
rationale for the removal of all traces of the shar ed cultural heritage of Bosnia and Herzegovina.
79
34th Session of the Republika Srpska Assembly, 27 August-1 October 1993.
8Interview with Susan Sachs, Newsday, 19 March 1996. - 46 -
The Serb perpetrators saw such monuments not as treasured beacons of the local community or
even as objectively demonstrating the rich history of Bosnia; instead th ey characterized such
history as an unwelcome reminder of the 500 years before the late nineteenth century when Bosnia
formed part of the Turkish-run Ottoman empire. The Bijeljina mayor ⎯ who I just quoted to the
Court ⎯ characterized such a period as: “the worst days of [Serbian] slavery under the
81
Ottomans” .
8. The rationale for destroying the mosques was that if they were gone, the Muslims would
not return. This was stated explicitly to a jour nalist who visited Prijedor and spoke with one Serb
who had, with a military demolition team, received orders to blow up the mosque in the centre of
the town of Prijedor. His description of how the mosques were destroyed is unsettling in its very
frivolity:
“‘[it] was about 200 years old. I don’t know, they all look the same ⎯ cheap’. They
battered the door down and began smashi ng up the mosque, downing more rejki as
they looted and destroyed... One of the boys started playing Iron Maiden and
Nirvana over the loudspeakers that had once broadcast the muezzin calling the faithful
to prayer. Then they lit a bonfire of carpets and tables in the middle of the mosque
and bored holes in the walls by the light of the fire. They wired up the charges,
dismantled and took the sound system a nd gathered outside to watch the walls
crumble in a single cloudy explosion, singing and laughing. [Ranko stated to the
journalist] ‘if you destroy their džamijas [m osques] they (the Muslims) never come
82
back’.”
I would like at this point to show the Court a picture of the Stari Grad mosque in Prijedor, both in
1991 when it was still standing and in 2002 when it had been completely razed to the ground.
9. Destroying the religious buildings and cultural heritage of a community marks the death of
that community: all traces that they lived there for generations, even centuries, are cleared away
with the rubble. No one would ever be able to tell that these places were once inhabited by
Bosniaks and Bosnian Croats. Jan Boeles who was, in 1994, the Head of the Dutch delegation to
the European Community Monitor Mission to monito r political and security developments in the
regions of Bosnia and Herzegovina, had the specific task to match the dates of mosque and church
demolition with the names of militia commanders who controlled military units at the time of the
81
Bosnia Report, Vol. 2, No. 15, 15 April 1998.
8G. Weiss, “Street dogs, dead souls and killers who are heroes”, http://www. salonmagazine.com/jan97/
bosnia970106.html. - 47 -
destruction. They would then be able to prosecu te those people for war crimes. He stated, in an
interview with journalist Robert Fisk, that:
“You have to understand that the cultura l identity of a population represents its
survival in the future... This is the mu rder of a people’s cultural identity... In
many religions, destroying a cemetery is about the worst thing you can do. The
graveyard... proves that this piece of la nd has been in this peoples’ possession for
generations.” 83
10. Professor Thomas Franck, has pleaded before this Court about the law of genocide. I
will not attempt to duplicate what he has said but I think it is fitting to include a rather poignant
quote from the “Original definition of genocide” by Rafael Lemkin, the legal scholar who first
coined the term “genocide” in 1944 and whose initiative led to the adoption of the Convention for
the Prevention and Punishment of the Crime of Genocide four years thereafter:
“Generally speaking, genocide do es not necessarily mean the immediate
destruction of a nation, except when acco mplished by mass killings of all members of
a nation. It is intended rather to signify a coordinated plan of different actions aiming
at the destruction of essential foundations of the life of national groups, with the aim
of annihilating the group itself. The objectives of such a plan would be the
disintegration of the political and social institutions, of cultu re, language, national
feelings, religion, and the ec onomic existence of national groups, and the destruction
of the personal security, liberty, health, dignity, and even the lives of the individuals
84
belonging to such groups.”
General picture and pattern of the destruction
11. Such irreparable damage was unfortunately done to so many sites of cultural importance
that to go through them all in this part of the pl eading would simply take too long. I will instead
focus on some of the more villainous destructions while presenting the general picture and pattern
of those destructions to the Court. Mr. Andras Riedlmayer, who will provide his expert opinion to
this Court, carried out an extensive survey of 19 municipalities in Bosnia and Herzegovina for the
85
Prosecutor in the Milosević case at the ICTY and an additional seven municipalities in Bosnia
and Herzegovina for two other cases before the ICTY 86. In these reports he documented damage to
83As reported by Robert Fisk, “Waging war on history”, The Independent, 20 June 1994, p. 18.
84As quoted in Lori Lyman Bruun “Beyond the 1948 Convention: Emerging Principles of Genocide in Customary
International Law”, Maryland Journal of International Law and Trade, Vol. 17, No. 2, Fall 1993, 193-226.
85ICTY, Prosecutor v. Slobodan Milosevi ć, case No. IT-02-54-T “ Destruction of Cultural Heritage in
Bosnia-Herzegovina 1992-1996 ⎯ A Post-war Survey of Selected Municipalities”, Andras Riedlmayer,Exhibit Number
P486.
86Namely for the ICTY in the Krajisnik case and the Seselj case. - 48 -
cultural and religious sites of the Bosniaks and Bosnian Croats. His expert report for the Milosević
case, which is probably one of the most compre hensive surveys done to date, contains an
abundance of useful and accurate data, much of which I will be drawing on in my pleadings and
showing to the Court.
12. Another very reliable report is that produ ced by Dr.Colin Kaiser who testified as an
expert at the ICTY in the Brdjanin case. He conducted an investigation into the damage and
destruction of Islamic and Roman Catholic sacral buildings in a number of municipalities in
87 88
Bosnia between 1992 and 1995 . Dr.Kaiser wrote a series of reports for the Parliamentary
Assembly of the Council of Europe, for whom he acted as a consultant to the Committee on
Culture and Education, during the war. Since the year 2000 he has been Head of the Unesco office
in Sarajevo. The study Dr.Kaiser compiled for the Brdjanin Prosecutor for the ICTY is not as
comprehensive as the one carried out by Mr. Riedlmayer, as it does only cover six municipalities,
but the two studies do both come to similar conclu sions, some of which I will be presenting to the
Court over the course of my pleadings.
13. In Mr. Riedlmayer’s report, he found that all of the 277 mosques that he surveyed were
damaged and only 22 of those were assessed as lightly damaged. Most of the mosques surveyed by
him were located in territories seized and held by Bosnian Serb forces during the conflict, with
Sarajevo being the notable exception 89.
14. What can only be described as a “campaign” of devastation of buildings and institutions
dedicated to religion took place throughout the conflict. The Brdjanin trial chamber found that the
destruction of sites of cultural and religious importance was intensified in the summer of 1992, this
being the significant period of damage to Mus lim and Roman Catholic institutions. Their
conclusion was that this was “indicative that the devastation was targeted, controlled and
90
deliberate” .
87Namely Bosanski Novi, DonjiVakuf, Kljue, Kotor Varos, Prijedor and Sanski Most.
88ICTY, Prosecutor v. Brdjanin, case No. IT-99-36-T “Report on the Da maging and Destruction of Islamic and
Roman Catholic Sacral Buildings in the Municipalities of Bosanski Novi, DonjiVakuf, Kljue, Kotor Varos, Prijedor and
Sanski Most in the 1992-95 War with specific reference to 1992”, Dr. Colin Kaiser, Exhibit No. P1183.
89ICTY, Prosecutor v. Slobodan Milosevi ć, case No. IT-02-54-T “ Destruction of Cultural Heritage in
Bosnia-Herzegovina 1992-1996 ⎯ A Post-war Survey of Selected Municipalities ”, Andras Riedlmayer, Exhibit
No. P486, p. 9.
90ICTY, Prosecutor v. Brdjanin, case No. IT-99-36-T, Judgment issued on 1 September 2004, para. 642. - 49 -
15. That the destruction was deliberate rather than incidental to the conflict is something
which Mr.Riedlmayer has concluded in his report: a majority of the religious sites he identified
were destroyed as a result of attacks directed at them, rather than attacks incidental to fighting in
91
the vicinity . Madam President, Members of the Court, to raze a building to the ground is not
something which happens easily, quickly or without some amount of preparation.
16. The people who were destroying those Bo sniak and Bosnian Croat religious buildings
appeared to have been working from some pre-prep ared lists. It is Mr.Riedlmayer who deduces
this from the very fact that unfinished religious buildings were targets of vandalism but were not
generally blown up like many of the finished ones 92.
Some examples of destruction in Bosnia and Herzegovina
17. It was sometimes not even enough that the mosques had been burnt and the damage had
been so extensive that they had been rendered completely unusable: the destruction in some places
went as far as the foundations bei ng dug up and removed. One of the most chilling tales is that of
the fate of the eighteenth century Savska mosque in Brčko. A photo of the Savska mosque appears
behind me now ⎯ it is shown in its pre-war state, when it stood in all of its glory and then, in
July 2002 there is a picture which shows it is no longer there. I would like you to bear this picture
in mind while I describe what happened there. The rubble from the destruction of the Savska
mosque was mixed with tons of garbage then dumped on top of a mass grave site and used to cover
the remains of Muslim civilians from Brčko killed by Serb forces and buried on the outskirts of the
town 9. [Picture of the Savska mosque]
18. In the town of Fo ča a total of 11mosques, eight of them dating from the sixteenth
century, were destroyed during the first months of the town’s occupation by Serb forces in the late
spring and summer of 1992. One of them, the Aladza mosque, famous for its splendid mural
paintings and lofty dome, dating from 1555 and under Unesco protection, was dynamited and
razed. According to the ICTY Kunarac trial ch amber, the Aladza mosque, which was the last
standing mosque in Foča, was blown up on 1August 1992. This was “well after the end of the
9Riedlmayer, op. cit., Note 15, p. 11.
92
Ibid., pp. 9-10.
9Riedlmayer, op. cit., Note 15, pp. 12-13. - 50 -
94
fighting and . . . at a time when the town was securely under Serb control” . The Aladza Mosque
was one of the world’s most beautiful Muslim places of worship, famous for its magnificent wood
95
and marble carvings. Serb fire brigades stood by and watched as the mosques burned in Foča .
19. The Islamic community of Fo ča’s historical archive and library were also burned, as
were three shrines of Muslim holy men, and a histor ic dervish monastery of the Nakshibendi order.
In the surrounding municipality of Foč a, a total of 33 Islamic sites were destroyed, including
24 mosques. In addition to such a destruction of its cultural heritage, the very name of the town of
Foča ⎯ as Ms Karagiannakis explai ned earlier in her pleadings ⎯ was replaced; and this was a
common pattern across the territories which were cleansed by the Serbs. So, in January 1994,
“Foča” became “Srbinje”, “Serb Town”, by reference to the fact that it is now almost exclusively
inhabited by Serbs. Indeed, “[e]verything that in any way was reminiscent of the past, ... was
96
destroyed” . As a consequence of the concerted effect of the attack upon the civilian population
of Foča, and surrounding municipalities, all traces of th e Muslim presence in the area were wiped
out.
20. The village of Novoseoci, which is 50 km from Sarajevo, was the scene of an atrocious
act of cold-blooded murder, which was centred around the mosque. On 21 September 1992,
soldiers from the 2nd Romanija Brig ade of the VRS, the army of the Bosnian Serbs, blocked and
surrounded the village. There was no armed resistance in that village, Madam President. The next
day, the women and children were bussed out of the area; the men were lined up outside the
mosque and shot. The bodies were then placed in a garbage dump a few kilometres outside
97
Novoseoci and were buried beneath the rubble of the mosque . Amor Masovi ć, head of the
Bosnian Missing Persons Agency, stated that to nnes of garbage and “15-ton chunks of the
mosque”, destroyed by the Serbs had to be remove d before the mass grave site was uncovered. He
further pointed out that each of the victims had eight or nine bullet holes in them ⎯ and I shall
quote him again: “Only military trucks could have carried those huge chunks of the mosque. This
94
ICTY, Prosecutor v. Kunarac et al., case No. IT-96-23&23/1, Judgment, 22 February 2001, para. 44.
95
ICTY, Prosecutor v. Krnojelac, case No. IT-97-25, 17 September 2003 at para. 33.
96ICTY, Prosecutor v. Bijlana Plavsi ć, case NoI.T-00-39, testimony of Mirsad Tokaca, Judgment,
27 February 2003, para. 44.
97ICTY, Prosecutor v. Krajisnik, case No. IT-00-39-T, testimony of Milan Tupajić, 29 June 2005. - 51 -
98
was a deliberate, organized act of terror, not war.” Madam President, Members of the Court, the
Commander of the 2nd Romanija Brigade in 1992 was none other than Radislav Krsti ć, the man
who is currently serving a life sentence for complicity in genocide for his actions in Srebrenica. He
was sentenced by the ICTY. He was also, for a ll times between 1991 and 1995, an officer in the
VJ, the Yugoslav army, and the VRS, the army of the Bosnian Serbs. We have submitted
99
documents to the Court on a DVD on 16Ja nuary, showing that this was the case . This will be
discussed in more detail when the Deputy Agent of Bosnia and Herzegovina, Mr. van den Biesen,
presents to the Court the role and nature of Belg rade’s involvement in military matters in Bosnia
and Herzegovina.
21. Madam President, Members of the Court, I would now like to talk about Banja Luka.
This had been taken over by Serb forces at the start of the war without any fighting, all of the city’s
16mosques, including two famous sixteenth century buildings ⎯ the Arnaudija and the Ferhad
Pasha mosques ⎯ were deliberately razed to the ground. Both of these mosques were registered
with Unesco. The Mayor of Banja Luka, Djordje Umicevi ć, wrote that to rebuild the mosque
would be a “deep humiliation for the Serbian people” and further that the mosque was a
“monument to the cruel Turkish occupation” 100.
22. In the northern Bosnian municipality of Prijedor, the Brdjanin trial chamber found that
“the most systematic and brutal infliction of damage to both Muslim and Catholic institutions
dedicated to religion occurred in Prijedor” 101. Dr.Kaiser concluded that all of the acts of
102
destruction took place in the summer of 1992 . One of the most disturbing incidents so far
reported is that which Mr. Riedlmayer refers to in his expert report submitted in the Milosović case.
In the village of Carakovo, Serb forces massacred 18 Muslim villagers in front of the mosque; they
then proceeded to wrap the Imam in a prayer carpet and burnt him death, before burning down the
mosque itself and finally blowing up the minaret 103.
98M. Rosemblum, “41 Muslims Finally Buried in Bosnia”, Associated Press, 5 November 2000.
99
Documents submitted to the ICJ by Bosnia and Herzegovina, 16 January 2006, docs. Nos. 44a-j.
100
Bosnia Report, Vol. 2, No. 15, 15 April 1998.
101ICTY, Prosecutor v. Brdjanin, case No. IT-99-36-T, Judgment, 1 September 2004, para. 652.
102Op. cit., Note 14, p. 10.
103Riedlmayer, op. cit., Note 15, p. 13. - 52 -
23. Dr.Kaiser concludes that the Islamic and Roman Catholic sacral buildings were
destroyed in a “targeted, controlled and deliberat e campaign of devastation, a kind of blitzkrieg
104
against places of worship” .
24. In the eastern Bosnian municipality of Zvornik, Serb forces destroyed all five mosques in
the town and a total of 46 Islami c sites, including 36 mosques, in the municipality. I would like
now to demonstrate to the Court the link between the elimination of the religious sites and the
removal of those people so inextricably connected to them in the eyes of the Serbs, as regards the
municipality of Zvornik. In doing this, I would like to share with the Court the words of the Serb
Mayor of Zvornik, Branko Grujić, who, in early 1993, was interviewed by several foreign reporters
and he uttered a pure and simple lie when he made the absurd claim that: “There never were any
105
mosques in Zvornik.” I would now like to show you a picture of one of those mosques which
apparently never existed. It is shown in 1990, before it was destroyed. Then we see, in 1998, a car
park stands on the place where it once stood.
[Picture: mosque in Zvornik]
25. Later on in the same month, Mayor Gruji ć did admit that Muslims may once have had a
legitimate claim to ownership of eastern Bosnia. Ho wever, he quickly qualified this by explaining
why the United Nations map for the region needed to be thrown away. I would like to quote the
article where he was interviewed:
“The demographics are different now,” he said. [The journalist writes]
“Zvornik once had a population of almost 70,000 ⎯ with more than 60 per cent being
Muslims. Today, the mosque has been blown u106and the city is more than 90 per cent
Serb, maybe even 99.9 per cent Serb.”
26. A year later, Mayor Grujić was quoted in the Belgrade press as saying that there were
107
only five Muslims left in Zvornik . Unfortunately, this time, Mayor Grujić’s words were not so
10Kaiser, op cit., Note 14, p. 12.
10Branko Grujić, interviewed by Carol Williams, “Serbs Stay Their Ground on Muslim Lands: Conquering
Warlords Bend History and Reality in an Attempt to Justify Their Spoils”, Los Angeles Times, 28 March 1993;
LauraSilber, “Serb Mayor Confident in Bosnian Town Where Mosques Are Rubble”, Financial Times (London),
17May1993; Roger Cohen, “In a Town Cleansed of Muslims, Serb Church Will Crown the Deed”, New York Times,
7 March 1993.
10Chicago Tribune, 23 March 1993.
10Vreme News Digest, No. 156, 19 September 1994, Title: “On the Spot: Loznica and Zvornik, the Banks of the
Drina”, by Dragan Todorović. - 53 -
incredulous. Madam President, Members of the C ourt, before the takeover by the Serbs, Zvornik
was made up of 54 per cent Muslims. In 1997-1998 this was 0.6 per cent 10.
27. The findings of the ICTY on the destruction of religious and cultural heritage of Bosnia
and Herzegovina are succinctly put in the Brdjan in trial chamber judgment. This trial chamber
found that there was a wilful damage done to both Muslim and Roman Catholic religious buildings
and institutions in the relevant municipalities by Bosnian Serb forces. They furthermore concluded
109
that the evidence showed that they were not used for military purposes . I will describe some of
the findings of that trial chamber, as listed in the judgment, to you now.
28. In Bosanski Petrovac, the two mosques in the centre of town were destroyed during the
110
takeover of it. There was no apparent resistance in the area . The mosques in Staro Šipovo,
Bešnjevo and Pljeva were destroyed on 7 August 19 92 by Bosnian Serb fo rces. The mosques and
111
their minarets were completely destroyed and th e tombstones in the vicinity were also damaged .
The religious buildings in Sanski Most were also subject to major damage. In Čelinac town, two
mosques, the Imam’s house and a Roman Catholic church were destroyed. In Tesli ć, the Roman
Catholic church was demolished during an attack on it by Serb forces in mid-1992.
The damage done to Sarajevo’s cultural heritage
29. The damage done to Sarajevo’s cultural heritage was touched upon yesterday by the
Deputy Agent, Mr.van den Biesen. I would like now to go into a little more detail. The robust
construction of the historic buildings which make up the city managed to survive a lot of the
shelling and gunfire ⎯ although many have sustained a cons iderable amount of damage. One of
the most nefarious attacks on the cultural heritage of Sarajevo and Bosnia and Herzegovina was the
destruction on 17 May 1992 of the Institute for Or iental Studies along with its priceless collection
of more than 5,000 Arabic, Turkish, Persian and Bosnian encyclopaedias, works of Islamic
philosophy and Ottoman poets. The archives al one contained over 200,000 manuscripts, which
108
ICTY, Prosecutor v Slobodan Milosevi ć, case No.IT-02-54-T, Expert Report of Ewa Tabeau: Exhibit
No. 548, tab 2, Ann. A1, p. 72.
109
ICTY, Prosecutor v. Brdjanin, case No. IT-99-36-T, Judgment on 1 September 2004, paras. 640 and 658.
11Ibid., para. 647.
11ICTY, Prosecutor v. Brdjanin, case No.IT-99-36-T “Document mentioning the destruction of the Staro
Šipovo, Bešnjevo and Pljeva mosques”. Exhibit No. P2404. - 54 -
included the edicts of the sixteenth century sultans and land deeds for all of Bosnia, many of which
could be considered works of art 112. The destruction was significant because it was a means of
destroying the documents, such as the historic land d eeds, that was evidence of the fact that Bosnia
and Herzegovina had not always been Serb land; and because by d estroying the Oriental Institute
and its thousands of manuscripts, it annihilated one of the greatest repositories of the written legacy
of 500 years of Bosnian Muslim cultural history. Furthermore, Madam President, it is clear from
the fact that none of the other buildings, in what is a densely built neighbourhood in the city, were
hit, that this was a deliberate attack on the Institute.
30. It was only just over three months later that one of the most notorious and shattering
attacks on the cultural heritage of Bosnia and He rzegovina took place, the burning of Bosnia’s
National Library, which was, according to Mr. Andr as Riedlmayer: “the largest single incident of
113
deliberate book burning in modern history” . The pattern was similar to that of the attack on the
Oriental Institute: the Library was targeted and set ablaze by a barrage of shells. It was bombarded
by a barrage of shells and fired upon from multiple VRS positions. This shows all the hallmarks of
a co-ordinated attack. It burnt for 15 hours and smouldered for days afterwards but despite the
inside being completely reduced to ashes, the shell of the building still stands today ⎯ a distressing
reminder of what happened to the city, country a nd its people. As firemen fought the blaze, using
water from the Miljacka River as the city’s water s upply had been cut-off, they were shot at by
114
snipers . I would like to show the Court pictures of the Sarajevo National Library being burnt.
[Picture: burning library]
31. Madam President, Members of the Court, The library was a national landmark and a
cultural treasure; the main depository of Bosnia’s written history including works in the languages
of all of the cultures that have shaped the very history of the country including Old Slavic, Latin,
Hebrew, Turkish, Arabic, Persian and Serbo-Croatian. Mr.Riedlmay er estimates the loss to be
over 1.5 million volumes 115. Like the Oriental Institute, the Library is located in a densely built
11As reported by Robert Fisk, “Waging war on history”, The Independent, 20 June 1994, p. 18.
113
Riedlmayer op. cit., Note 15, p. 19.
11Ibid., pp. 18-19.
11Ibid. - 55 -
neighbourhood in the city and the surrounding bu ildings remain intact even in 2006. The written
history of a nation was reduced to ashes overnight: a blazing example of what the Serbs wished to
do to its very people and what they very nearly succeeded in doing. As Heinrich Heine warned,
nearly two centuries ago: “Where they burn b ooks, they will in the end burn human beings as
116
well.” I would now like to show the Court a picture of what the interior of the library looked
like after the destruction.
[Picture: interior of the library]
32. Aside from the two examples I have dw elt upon in Sarajevo thousands of historic
buildings and many important collections of manus cripts and works of art were lost or severely
damaged or completely destroyed throughout Bosnia. Madam President, every religious building
has its records of the local community spanning gene rations and different periods in the history of
Bosnia. The books and documents which embodied the historical memory of the Bosniak and
Bosnian Croat communities, many of which were unique and the product of centuries of cultural
history, were spitefully wiped out in a chilling parallel to the fate of the people who lived there.
Conclusions
33. The pattern of the destruction of the cultural heritage in Bosnia and Herzegovina can be
seen on the map which is appearing on the screen behind me.
[Picture: map of cultural destruction in BiH].
I would like at this point to explain to the Court that this map was compiled by Bosnia and
Herzegovina based on a database compiled by Mr. Andras Riedlmayer, submitted to ICTY in the
Milosević case which was used by the ICTY in that c ase. As you can see on the map, much of the
devastation occurred on the territory of what is now the Republika Srpska. This ties in with the
first of the strategic goals, which was to separate the Serbian people from the other two ethnic
communities. Madam President, they did not just want the territory, they wanted the territory
cleansed of all traces of the Bosnian Muslim and Bosnian Croat populations that once lived there.
34. The destruction of Bosnia’s cultural herita ge by the Serbs was an occurrence that started
right from the beginning of the war and conti nued even after the Dayton Agreement had been
116
Heinrich Heine “Dort wo man Bücher Verbrennt, verbrennt man auch am Ende Menschen” Almansor (1821). - 56 -
signed. Some of the early destructions were carried out by JNA forces, after Bosnia and
Herzegovina had been recognized by the interna tional community. Some of these destructions
carried out by the JNA were the mosques at Ko torsko and Orašje (near Doboj) on 6 May 1992, the
117
destruction of a Roman Catholic church in Gorice on 8May1992 and the destruction of the
mosque in Grapska on 12May1992 11. I would like to now show to the Court a picture of a
church in Gorice, both as it was before the war and in 2002 after it had been destroyed. Those who
destroyed these cultural, historical and religious monuments were, in fact, completing the work of
the genocidal operation.
[Picture: Gorice Church before and after destruction]
35. The conclusions of both Dr.Kaiser and Mr.Riedlmayer focus on the intent behind the
destruction, in that it was done to remove any tr ace of the Bosniak and Bosnian Croat civilizations.
Dr.Kaiser points to the difference in the level of destruction between those religious buildings in
the rural and urban areas. In the former, he found that there was less complete physical
annihilation, which he concludes is due to the assu mption, on the part of the destroyers, that the
people would not return to the areas so the walls of the mosques and churches would crumble and
disintegrate naturally. There was a more “radic al removal” of religious buildings in urban
119
centres .
36. Both Dr. Kaiser and Mr. Riedlmayer point out that the minarets on mosques were almost
always destroyed as these are the most prominent parts of the building and their removal changes
the face of the landscape in the most dramatic of ways.
37. It was not even the case that when th ese buildings were destroyed an empty space was
left: in many instances they were covered with parking lots and rubbish tips! Such a sign of
contempt and disrespect shows the attitude towards the Bosniaks and Bosnian Croats by those who
perpetrated such dreadful crimes. Mr.Riedlmayer even stated in his report that “the presence of
large, overflowing containers of rubbish on an empty lot in the centre of towns in Republika Srpska
11Riedlmayer, op. cit., Note 15, p. 16.
118
Ibid., p. 11.
11Kaiser, op. cit., Note 14, p. 12. - 57 -
120
often signals the site of a destroyed mosque” . I would like to use one comment published in
Vreme, which was one of the few remaining independent periodicals in Belgrade during the war, as
it sums up the situation accurately:
“It is characteristic that a great number of the destroyed places of worship were
not within the range of war actions. In some towns, in places where sacral buildings
had once stood, foundations have been laid for other purpose facilities. Sufficient
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cement, labour and hatred were found.”
38. The Respondent’s replies to the eviden ce we have produced so far in our written
pleadings have been entirely dismissive of the facts we have put before the Court. In their
Counter-Memorial, where they allege that Serbian cultural property was destroyed in Bosnia, they
are less than specific, both in description and date of those occurrences. More worryingly, their
evidence sometimes does not match the descriptive terms they use for the damage and at times it is
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even downright misleading. For example , they state in their Counter-Memorial of 1997 that on
“May 26, 1993 the Muslims levelled to the ground the Orthodox church which was located in the
very centre of Travnik”. In June 1994, the European Parliament’s rapporteur visited Travnik and
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found the church still there having suffered only “minor damage from small shells” .
39. The Rejoinder is even more telling, give n that it says nothing of the evidence presented
by Bosnia and Herzegovina in its Reply of 23 April 1998 and focuses entirely on counter-claims
for damage done to Orthodox heritage sites. It is important to make clear at this stage that Bosnia
and Herzegovina does not deny that damage was done to religious sites of all of the communities of
the country. There were indeed a number of attacks on Serb Orthodox churches. This was
especially seen in the early phase of the war in Herzegovina: the Serb Orthodox Church in Mostar
was blown up by Croat extremis ts in June 1992 following the JNA siege, which had destroyed
Mostar’s Catholic churches; the destruction of the old Serb Orthodox monastery in Zitomislic by a
Croat gang from Medjugorje. What is clear is that there are no statements by Bosniak members of
Government either condoning or encouraging such attacks, as Prime Minister Haris Silajdzić stated
in 1995 when questioned about the safety of Serbs living in the Federation. He said:
12Riedlmayer, op. cit., Note 15, p. 13.
121
E. Stitkovać, “More than Hatred”, Vreme News Digest Agency, 23 November 1992.
12Para. 7.4.1.3.26.
12Council of Europe, Sixth Information Report, doc. 7133, p. 5. - 58 -
“Our history is our guarantee. Our credibility is our history, this history, the
history of this conflict in which these authorities have demonstrated maximum
tolerance even at the most difficult moment s . . . I visited Bosanska Krupa following
its liberation. In one small area there had been a Catholic church, a mosque and an
Orthodox church. When I visited Krupa, the Catholic church and the mosque had
been destroyed. The Orthodox church was in tact. This is our credibility and this is
not just the way things are around Sarajevo. This is the case everywhere. There are
probably some exceptions that only confirm the rule.” 124
Madam President, Members of the Court, I see it is now 1.00 p.m. and I would like to ask the
permission of the Court as I have only a few paragr aphs left to go to complete my submission.
Thank you.
40. It is worth noting that after more than th ree years of a bloody and bitter siege, the Serb
Orthodox Church at the centre of Srebrenica was still standing ⎯ though not undamaged: it had
suffered some vandalism. When the safe area fell and Mladić entered the town, Bosnian Serb army
officers can be seen visiting the Orthodox Church and planting the Serb flag over its entrance. This
stands in stark contrast to the fate of the town’s five mosques which were systematically
destroyed ⎯ as were the town’s male Muslims. The combination of those killings with the forcible
transfer of the women, children and elderly would inevitably result in the physical disappearance of
the Bosnian Muslim population at Srebrenica. Th is ethnic cleansing of people was also achieved
by a barbaric cultural cleansing ⎯ another way of killing the people by trying also to kill their
spirit. By eradicating the mosques in the town , the aim was to make sure that the displaced
population would never return. Madam President, Members of the Court, on the screen behind me,
I would like to show you some pictures of the destruction of the mosques in Srebrenica.
s[crenen]
41. Madam President, Members of the Court, this is what genocide looks like. This is what
the wages of racial hatred and ethnic cleansing lead to. This is only a part of what Bosnia and
Herzegovina has lost through cold-blooded attacks on those things which symbolize its people, its
history and the very fabric of its society.
I would like now to conclude my pleadings and thank the Court.
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Radio Bosnia-Hercegovina, Sarajevo, in Serbo-Croat, 1900 GMT, 7 December 1995. - 59 -
The PRESIDENT: Thank you, Ms Dauban. The Court now rises and the oral arguments of
Bosnia and Herzegovina will continue tomorrow morning at 10 o’clock.
The Court rose at 1.05 p.m.
___________
Public sitting held on Wednesday 1 March 2006, at 10 a.m., at the Peace Palace, President Higgins presiding