CR 2006/40
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2006
Public sitting
held on Wednesday 3 May 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
tenue le mercredi 3 mai 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: Presieigtgins
Vice-Prsi-Kntasawneh
Ranjevaudges
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Skotnikov
Judges ad hoc Mahiou
Kre ća
Couevrisrar
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-K.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Sjoteiskov,
MaMhou.,
Kre 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),
Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, University of Paris X-Nanterre,
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, - 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 fact 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),
M. Antoine Ollivier, attaché temporaire d’ense ignement et de recher che à l’Université de
Paris X-Nanterre,
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., - 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, Master 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, Director
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. (Indianapolis),
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 Djeri ć, 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. (Indianapolis),
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. PhD. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrkovic, LL.B.,
as Assistants. - 9 -
M. Aleksandar Djurdji ć, LL.M., premier secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Miloš Jastrebi ć, deuxième secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Christian J. Tams, LL.M., PhD. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrkovic, LL.B.,
comme assistants. - 10 -
The PRESIDENT: Please be seated. Mr. Cvetković, you have the floor.
CMVr.TKOVI Ć: Thank you, Madam President. Now, yesterday I began my pleading on
the question of paramilitaries and I examined their stat us in the beginning of the conflict, that is in
the spring of 1992. Today I will continue with the status of paramilitaries after spring 1992.
The status of paramilitaries after spring 1992
36. In April 1992 the Bosnian Serbs proc laimed their State and it was only this
new-proclaimed State that can be responsible fo r the actions of the paramilitary groups operating
on its territory. It seems, however, that although attempts were made to that extent, this State in its
beginning did not have the capability to entirely seize control over various paramilitary groups.
Therefore, paramilitaries stayed either out of any control or were under the control of local
authorities and crisis staffs of the new State. In summer 1992, after the warring parties had
completed the initial division of the territories, the new State was ready to take full control over the
paramilitaries.
37. On 13 June 1992, the Presidency of the Serbian republic of Bosnia and Herzegovina
adopted a decision on the prohibition of forming a nd activities of armed groups and individuals in
1
the territory of the republic which are not under the unique command of the army or militia . This
decision prohibited the forming and activities of self-organized armed groups and individuals in the
Republika Srpska territory and ordered that tho se groups and individuals be put under the unique
command of the army or of the Ministry of the Interior of Republika Srpska.
38. However, the implementation of this Decision was not easily accomplished. A number
of paramilitary groups remained out of control of the official organs of the Republika Srpska. On
28 July 1992, the Main Staff of the army of the Re publika Srpska issued a report, which stated that
there were still around 60 paramilitary groups, to talling between 4,000 and 5,000 men, which had
to be placed under the exclusive command of the army, or else be disarmed and legal measures
1
Rejoinder, Anns., Vol. 1, Ann. R10. - 11 -
2
taken . The report indicated that paramilitaries we re unacceptable because they hid behind corrupt
authorities, evaded combat, harmed the reputatio n of the official authorities and created an
impression among the population that the ruling party was pro-Cetnik and that the paramilitaries
3
were its exponents . According to the report, the presence of the paramilitary groups was
negatively affecting the Serbian people by diminishi ng trust in the Government and its capacity to
deal with war profiteers, criminals and mass murderers and immensely discouraging the fighting
élan of the Serbian republic of Bosnia and He rzegovina army members, often resulting in the
4
abandonment of positions .
39. In accordance with the Main Staff repor t, the Commander of the 1st Krajina Corps,
General Momir Talić, issued an order on 30 July 1992. The order read as follows:
“1. Offer all paramilitary formations and their leaders, if they do honestly intend to
serve the rightful struggle for survival of the Serbian people, an opportunity to join
regular Serbian Republic of Bosnia and Herzegovina Army units and assign them
in accordance with their military occupational specialties and military skills.
2. Do not include in units individuals and groups which have been involved in crimes
and looting or have committed other criminal acts. Disarm and arrest them and
bring criminal charges against them in SR BiH army courts, regardless of their
citizenship.
3. In co-operation with the SR BiH MUP, disarm and arrest paramilitary formations,
groups and individuals belonging to them who refuse to come under the unified
command of the SR BiH Army and bring criminal charges against them
5
corresponding to the criminal acts they have committed.”
General Talić added that citizens of the Federal Repub lic of Yugoslavia, who accepted the unified
command of the Serbian republic of Bosnia and He rzegovina, were to be treated as volunteers and
assigned to combat units. The existence of an y paramilitary group was forbidden and, by
6
15 August 1992, all paramilitaries were to be disarmed .
2Report on Paramilitary Formations in the Territory of the Serbian Republic of BiH of 28 July 1992, quoted in
ICTY, Prosecutor v. Krajišnik , 1992 Bosnian Serb Command & Control (JNA-TO-VRS), Expert Report by
Richard Butler, para. 7.4.
3Ibid., quoted in ICTY, Prosecutor v. Brdjanin, Military Developments in the Bosanska Krajina ⎯ 1992, A
Background Study, Expert Report by Ewan Brown, para. 2.62.
4Loc. cit.
51st Krajina Corps Order of 30 July 1992, quoted in ICTY, Prosecutor v. Brdjanin, Military Developments in the
Bosanska Krajina ⎯ 1992, A Background Study, Expert Report by Ewan Brown, para. 2.63.
6Ibid., para. 2.64. - 12 -
40. Despite the problems that the army enco untered in gaining control over paramilitary
forces during most of 1992, it seems that these effo rts finally succeeded, since by the end of 1992
the Main Staff reported that “infantry units of th e territorial defence and paramilitary formations,
initially used according to the decision of crisis staffs and other similar authoritative bodies were
7
incorporated into the VRS” .
41. All these efforts are, of course, misinter preted by the Applican t as evidence that the
8
Respondent had exercised control over paramilitary units . In fact, these efforts of the Republika
Srpska to put paramilitary forces under its control, and the decisions issued to that extent, prove
that:
(a) there was no effective control over paramilitary groups during spring 1992; and
(b) the paramilitary groups were not formally pa rt of the army or th e police of the Republika
Srpska until 13 June 1992.
42. In addition, and of more importance for the question of attribution, the decisions and
orders of the Republika Srpska official bodies prove that:
(a) paramilitary formations were initially used accord ing to the decisions of crisis staff and other
similar authoritative bodies of the Republika Srpska, which means that, even when these
formations did act under control of other organs, they acted under the control of crisis staff and
other similar bodies of the Republika Srpska, and not under the control of the Respondent 9;
(b)these decisions also prove that the Republika Srpska authorities intended, and eventually
succeeded, in putting the paramilitary groups und er its control, irrespective of whether
members of these groups were from Bosnia and Herzegovina or from the Federal Republic of
10
Yugoslavia .
7
ICTY, Prosecutor v. Krajišnik, 1992 Bosnian Serb Command & Contro l (JNA-TO-VRS), Expert Report by
Richard Butler, Exhibit P528, para. 7.5.
8
See CR 2006/9, pp. 20-21, paras. 36-40 (Karagiannakis).
9Ibid., para. 40.
10Ibid., para. 39. - 13 -
Paramilitary involvement after 1992
43. Madam President, distinguished Members of the Court, having established the legal
framework created in 1992 in the Republika Srpska, it is within this legal framework that we have
to address the issue of the paramilitary involvemen t in the territory of Bosnia and Herzegovina
after 1992. It is obvious that the official bodies of the Republika Srpska made very serious efforts
to put all the paramilitary units under its cont rol and command, and this approach is entirely
consistent with the attitude expressed by General Mladi ć on as early as 13 May 1992. Remember
that Mladić said: “All under arms are under my command, if they want to stay alive.”
44. Thus, after 1992 the paramilitary involvement became very rare, and there were only a
few occasions when paramilitary troops origina ting outside of Bosnia and Herzegovina were
engaged in fighting in that territory. The Applicant mentioned only two occasions ⎯ the
involvement of paramilitaries in the so-called “Pa uk” group, in late 1994 and early 1995, and the
involvement of paramilitaries in fighting around Sarajevo in the summer of 1995. In addition,
there is evidence that in autumn 1995 some para military troops were involved in Bosanska Krajina
to protect Serbian territories from the joint attack of Bosnian Muslim and Croat forces. In any
case, whenever paramilitaries were engaged in Bo snia and Herzegovina after 1992, they were
under the command of the Republika Srpska authoriti es or other local authorities, as was the case
during the “Pauk” operation.
45. This was best confirmed by the Applican t’s expert, General Sir Richard Dannatt. The
expert, responding to a question put by Ms Korner, stated the following:
“They [paramilitaries] were subsequently brought under the main command of
the army and indeed, under the regulations of the army they were obliged to come
under the command of the army, and there is documentary evidence in the pack of
GeneraMl ladic 11cepting command of a ll the paramilitaries and territorial
organizations.”
A little later, there was this exchange between Ms Korner and the expert:
“Ms KORNER: If the paramilitary formations came from Serbia and were then
taken under the control of the VRS ⎯ under Mladic ⎯ if they came from there, if
they were sent by the VJ, posted to the VRS, for example, under whose control or
whose authority were they operating?
11
CR 2006/23, p. 32 (Dannatt). - 14 -
General DANNATT: They were operati ng on the territory of the VRS, as I
have indicated, Madam President, they would have been under the command of
Mladic and part of the chain of command of the VRS.” 12
Although Ms Korner’s assertion that the paramilitaries were sent to Bosnia and Herzegovina by the
army of the Respondent was in clear contradic tion with the claims of other counsel for the
Applicant that the paramilitaries were sent by the Ministry of the Interior of the Republic of Serbia,
the answer of General Dannatt is unambiguous on the question of under whose command the
paramilitaries were in that territory. Moreove r, never in his testimony did General Dannatt
explicitly confirm that the paramilitaries were sen t to Bosnia and Herzegovina by the official
organs of the Respondent.
Operation “Pauk”
46. I will now discuss the Pauk operation. The operation “Pauk” was an operation created to
support the forces of the Autonomous Province of Western Bosnia, governed by Fikret Abdić. We
have already explained to the Cour t, on various occasions, who Mr.Abdi ć was, and we have
informed the Court of the Muslim-Muslim armed conflict, waged between the forces of Mr. Abdi ć
and the government forces of Bosnia and Herzegovina . Not to our surprise, the Applicant tried to
completely conceal the existence of this conflict during their oral pleadings, since it simply did not
fit the “pattern of Serbian genocid al conduct” which they allege befo re this Court. Accordingly,
the Deputy Agent for the Applicant never once mentioned the Muslim-Muslim conflict in his
13
section on “Pauk” in the first round .
47. Furthermore, Mr.van den Biesen went on to say: “Bihac was, for the purpose of
realizing a Greater Serbia, an important strategic area that needed to be under the control of Serbs if
the Greater Serbia project were to be successful.” 14 It is difficult to see, Madam President, how the
Serbs wanted to realize the project of “Greater Serbia” by helping one Muslim force fight the other.
48. Nevertheless, the existence of the Muslim-Muslim conflict is discussed in more detail by
other speakers of Serbia and Montenegro and I will st ay with the issue of paramilitaries. It is true
that Arkan’s men were involved in the operation. It seems also, from the “Pauk” diary, that the
1Ibid, p. 33.
13
CR 2006/8, pp. 52-54, paras. 50-59 (van den Biesen).
1Ibid, para. 51. - 15 -
“Scorpions” were involved as well, although they were not referred to by that name. On the other
hand, the “Pauk” diary does not support the assertions that units of the Serbian Ministry of the
Interior were involved. The question before us, however, is not whether the mentioned units were
involved or not, but under whose command and for what purpose.
49. I have already mentioned the purpose of their engagement and the purpose was to help
the forces of Fikret Abdi ć to protect their province. This was confirmed by the expert for the
Applicant, General Sir Richard Dannatt, who stat ed: “The operation was conducted in the Bihac
area in the north of Bosnia with the intention of destroying the Sarajevo forces 5thCorps which
would have removed the authority of Bosnia from Bihac and enabling Fikret Abdi ć’s forces to take
15
control in Bihac . . .” Furthermore, the diary of the “Pauk” group clearly demonstrates that the
operation itself was a typical military operation, with two forces engaged at the battlefield, and one
force dominating the other in turn. This diary w as in a large part kept and entries recorded by
Muslims from the Abdić forces 16. There was absolutely nothing genocidal and nothing criminal in
the operation and this fact was, in a way, conf irmed by the ICTY Prosecutor, since no person has
so far been charged with any crime committed during this operation.
50. The second issue is the issue of command a nd control. According to all the available
information, and according to the “Pauk” diary its elf, the operation was co nducted on behalf of
Mr. Fikret Abdić. The military command of Serb forces pa rticipating in the operation was in the
hands of General Mile Novaković, the Chief of Staff of the army of the Serbian republic of Krajina,
that is the army of Croatian Serbs. There is absolutely no evidence that the operation was
commanded or controlled from Belgrade. The fact that the government in Belgrade probably knew
about the operation, and perhaps even sent a limite d amount of supplies, is not enough to entail the
responsibility of the Respondent. Of course, and once again, it should be stressed that there was
absolutely nothing illegal or criminal in the operation itself, and even if some form of responsibility
may be established, quid non, there was nothing illegal to be responsible for.
15
CR 2006/23, p. 31 (Dannatt).
1See for example pp. 91, 92, 98, 101, 102 etc. - 16 -
Sarajevo (Treskavica)
51. The second involvement of paramilitary units from Serbia in the territory of Bosnia and
Herzegovina happened on the battlefield around Sarajevo in the summer of 1995. In her pleading,
MsKaragiannakis referred to the following sente nce from the ICTY indictment against Stanisic
and Simatovic:
“Before the VRS attack on Srebrenica, th e Scorpions and the other special units
attacked ABiH [army of Bosnia and He rzegovina] forces near Sarajevo in a
co-ordinated move to draw units of the ABiH from Srebrenica and Žepa to Sarajevo
by leaving open a land corridor between Srebrenica and Sarajevo. The ABiH
responded by moving units to Sarajevo, thus making it easier for VRS forces to take
control of Srebrenica.” 17
52. The truth was, however, rather different. At that time, the Bosnian Muslim forces
launched an offensive against the Serb forces, a nd this is how the Netherlands Institute for War
Documentation (NIOD) described the situation:
“What UNPROFOR had been expecting for a long time, happened on 16 June:
the battle of Sarajevo broke out again. That day the ABiH had started a major
offensive from Sarajevo. The intention was to connect the city with the area of the
Muslim-Croat Federation north and west of the city. From Central Bosnia the ABiH
simultaneously attacked the VRS in the back . This outbreak attempt was in violation
of the Security Council resolution 913 of 1994, that prohibited ‘provocative action . . .
in and around Safe Areas’, but there was little UNPROFOR could do about it.
Initially the offensive seemed to yield succe sses. The ABiH managed to bloc18two
supply routes of the VRS, which caused counter-attacks from the VRS.”
53. The Serb forces, consisting of the army and the police of the Republika Srpska, were
outnumbered and the leadership of the Republika Sr pska asked for assistance. Paramilitary forces
responded to the call and two units were deployed ⎯ the “Scorpions” and the “Arkan’s Tigers”.
These units participated in fighting under the command of the Republika Srpska police and, during
their stay in Trnovo, a village near Sarajevo, th e “Scorpions” executed sixMuslim prisoners and
recorded their crime on the video. There is no evidence that any other crime was committed by
either the “Scorpions” or the “A rkan’s” men, and there is no evid ence that these units participated
in the attack on Srebrenica. Fo r the crime they have committed, the “Scorpions” are currently on
trial before the Belgrade War Crimes Chamber. Contrary to the repetitive claims of the
17
ICTY, Prosecutor v. Staniši ć and Simatovi ć, Second Amended Indictment, 20 December 2005, para. 60;
CR 2006/9, p. 16, para. 19 (Karagiannakis).
1NIOD Report ⎯ Srebrenica “A Safe Area”, Part III, Chapter 1 ⎯ “The military and political situation in spring
1995”, para. 16, available at http://www.srebrenica.nl/en/. - 17 -
19
Applicant , the indictment against the members of the “Scorpions” includes the commander of that
20
unit ⎯ a man called Slobodan Medic, also known as “Boca” .
54. The absence of any credib le evidence that any of the units allegedly controlled by the
Belgrade authorities had participated in the att ack on Srebrenica was recently confirmed by the
ICTY Trial Chamber which deals with the case of Jovica Stanisic and Franko Simatovic.
55. On 12 April 2006, the Trial Chamber i ssued a decision on defence motions regarding
defects in the form of the second amended indictment. This decision deals exclusively with the
charges relating to Srebrenica, which have been introduced by the ICTY prosecution in the second
amended indictment. The new charges are containe d in paragraphs 55 to 65 and paragraph 68 of
the amended indictment. They include the sen tence which MsKaragiannakis quoted in her
pleading in the first round 2.
56. From the Trial Chamber decision we can first learn that the ICTY prosecution apparently
did not even intend to link the two accused with th e attack on Srebrenica. In its response to the
defence motion, the prosecution wrote that “it is not alleging that the accused were a party to the
planning of the mass-murders in Srebrenica, only th at the units of the Serbian DB participated in
22
the murder of six Muslim prisoners after the capture of the Srebrenica enclave” .
57. More importantly, however, we can learn that the Trial Chamber was not satisfied by a
mere explanation of the prosecution intentions. The Trial Chamber found “that the indictment is
defective in that it is unclear from the indictment that the new charges related to the Srebrenica area
pertain only to the murder of the six Bosnian Muslim prisoners” 23. For that reason, the Trial
Chamber ordered the prosecution to file “a revised Indictment which clarifies that the new charges
24
pertain only to the murder of the six Muslim prisoners” .
19
CR 2006/30 p. 33, para. 11 (van den Biesen); CR 2006/11, p. 10, para. 1 (Condorelli).
2See “The Scorpions Indictment Raised”, the official presentation of the War Crimes Prosecutor of the Republic
of Serbia, available in English at www.tuzilastvorz.org.yu/html_eng/saopstenja/s_07_10_05.htm.
2Ibid., para. 51.
2ICTY, Prosecutor v. Stanisic and Simatovic , Decision on Defence Motions Regarding Defects in the Form of
the Second Amended Indictment, 12 April 2006, para. 14.
2Ibid., para. 17.
24
Ibid., dispositive. - 18 -
58. Madam President, distinguished Members of the Court, during this oral hearing the
Second Amended Indictment against Stanisic and Simatovic was cons tantly used by the Applicant
in their effort to link the Respondent with the attack on Srebrenica. The recent decision of the
ICTY Trial Chamber in that case has not only proved that this is not true; it has also demonstrated,
in the most obvious way, how the ICTY indictments can be unreliable as sources of evidence.
The relationship between the paramilitaries and the
official organs of the Respondent
59. The Applicant further claims that the paramilitary forces were not what they pretended to
be, but that they actually were units of the Serbian Ministry of the Interior. Thus, in her pleading,
MsKaragiannakis declared: “Indeed, forces su ch as Arkan’s men, the Red Berets and the
Scorpions were actually part of the Serbian MUP and others such as Šešelj’s forces were supported
25
by them and participated in joint operations with them in Bosnia.” I will proceed with examining
the status of all of the four mentioned groups and I will start with the Red Berets.
“Red Berets”
60. According to the Applicant, the “Red Berets” were “a unit founded under the direction of
26
the State Security Service of the Serbian MUP, i.e., the Serbian DB” . Madam President, the
notion of “Red Berets” is a myth created during th e wars in former Yugoslavia, the myth that was
started in Croatia and then spread to Bosnia and Herzegovina. This myth derives from several
unquestionable facts, which were later amply misinterpreted:
(a) first, a large number of different units operati ng in Croatia and Bosnia and Herzegovina wore
red berets, which became a kind of status symbol among the fighters,
(b) second, some members of the Serbian Ministry of the Interior, usually those originally from
Croatia or Bosnia and Herzegovina, participated as volunteers in fighting or in training of Serb
units from Bosnia and Herzegovina or Croatia,
(c) third, in 1996, the Serbian Ministry of the In terior formed a Special Operation Unit (“Jedinica
za specijalne operacije ⎯ JSO”), to which a certain number of people who had participated in
25
CR 2006/9, p. 14, para. 15 (Karagiannakis).
2Ibid., p. 14, para. 16. - 19 -
fighting in Croatia or Bosnia and Herzegovina si gned up. This unit also adopted a red beret as
a distinctive headgear.
61. The man probably most responsible for the creation of the “red berets” myth is
Mr. Dragan Vasiljković, better known as “CaptainDragan”. This “CaptainDragan” was a Serb
from Australia who appeared in the beginning of the Croatian conflict and formed a special unit of
the Republika Srpska Krajina, called “Knindze”. Mr. Vasiljkovi ć testified in the Milošević trial as
a witness of the Prosecutor. Wh en asked by the accused about his status during the conflict,
Mr. Vasiljković explicitly said that he had never been a member of the State Security Service of
27
Serbia , that he had never received any order at a ll from any person who had been a member of
that Service, and that he had never received any salary during his service in Krajina 28.
62. This is how, in answer to a question put by the Prosecutor, Mr. Vasiljkovi ć explained the
origin of a red beret:
“Q: Mr. Vasiljkovi ć, after the battle of Glina, did your men -- or did you issue
your men a distinctive garment that they wore from that point forward?
A: Yes. All the participants in the battle for Glina had red berets. I obtained
red berets for them. It was the only thing I had to give them.” 29
The battle of Glina happened in summer of 1991, but we can learn from the same witness that this
practice continued in 1993, when the witness was hi red by the Republic of Srpska Krajina to train
30
their units. After the completion of the training, the graduates would be given red berets .
63. According to the Applicant, the Red Bere ts “participated in operations in Bosnia
31
including operations targeting the non-Serbs of the Br čko municipality” . The issue of “Red
Berets” participation in Br čko was one of the issues discussed during the testimony of
Mr. Vasiljković. From a rather long exchange between th e witness and the Prosecutor, we can see
32
that the “Red Berets” in Brčko were actually members of the Krajina special police . Incidentally,
the Second Amended Indictment of the ICTY Pros ecutor against Stanisic and Simatovic, the two
27ICTY, Prosecutor v. Milošević, testimony of Dragan Vasiljković, 19-21 February 2003, pp. 16575-16576.
28
Ibid., p. 16577.
29
Ibid., p. 16498.
30Ibid., pp. 16674-16675.
31CR 2006/9, p. 15, para. 16 (Karagiannakis).
32ICTY, Prosecutor v. Milošević, testimony of Dragan Vasiljković, 19-21 February 2003, pp. 16535-16536. - 20 -
men who were charged for the crimes allegedly co mmitted by the “Red Berets”, does not contain
any charge relating to the municipality of Brčko.
64. Testifying in the Milosevic trial, Mr. V asiljkovic gave a very important overview of the
situation, from which we can actually see how the “Red Berets” myth was created:
“A: Let me tell you how I think it was generally speaking in Yugoslavia. After
the battle for Glina, the Knindza, who were then the special forces of the Krajina
police, gained a significant reputation so that almost all those who fought there
consider themselves to be special units or Knindza or Red Berets, so that my
understanding of a special unit differs drasti cally from the special units that I saw on
the ground.
Q: Would it be fair to say that it was common for... many different units to
take on the title or incorporate into the title of their unit ‘special purposes unit’?
A: Well, yes. I think that there were more special purpose units than regular
units. I rarely came across someone who said, ‘I was just a soldier.’ Everyone over
there was a so-called ‘specialist’ or a member of a special unit. It didn’t mean much
to me. It just meant that he was a fighter down there.” 33
65. The mention of various units called “Red Berets” can be found in numerous documents
before the ICTY. The Trial Chamber in the Brdjanin case found that a “Bosnian Serb paramilitary
34
group known as the Red Berets” participated in the attack on the Sanski Most municipality .
Interestingly, this same sentence was quoted by MsKaragiannakis in her pleading on detention
35
facilities .
66. We saw, therefore, how the first part of the myth was created. As to the second and the
third parts, it would be useful first to establish when exactly the Special Operation Unit (the JSO)
was formed. Mr. Zoran Lili ć, the former President of the Fede ral Republic of Yugoslavia, another
witness called by the ICTY Prosecutor, testified that this unit was officially formed in 1996 36. This
37
was confirmed before the ICTY by witness Obrad Stevanovic , who testified as a witness of the
accused Milosevic.
67. It is not contested that some people who became members of this Special Operation Unit
had previously participated in fighting in Bo snia and Herzegovina or in Croatia, some as
33Ibid., p. 16537.
34
ICTY, Prosecutor v. Brdjanin, Judgement of 1 September 2004, para. 102, emphasis added.
35
CR 2006/5, p. 31, para. 35.
36ICTY, Prosecutor v. Milošević, testimony of Zoran Lilic, 9 July 2003, p. 24013.
37ICTY, Prosecutor v. Milošević, testimony of Obrad Stevanovic, 26 May 2005, p. 39961. - 21 -
paramilitaries and some as members of the arme d forces of either Republika Srpska or of
Republika Srpska Krajina. It is also quite possi ble that some of these men were previous members
of the Serbian Ministry of the Interior who we re engaged in either Croatia or Bosnia and
Herzegovina as volunteers. On the other hand, the commander of the Muslim forces in Srebrenica,
Naser Oric, was also a previous member of the Serbian Special Police and we see nothing strange
38
in the fact that he joined the army of Bosnia and Herzegovina .
68. We agree, however, that some of the members of the Special Operation Unit were
subsequently found to have been criminals. Th e best example is the former member of Arkan’s
unit, the man called “Legija”, who currently faces ch arges in Belgrade for the assassination of the
Prime Minister Djindjić and several other crimes. However, this by no means confirms that these
people had been members of the Serbian Ministry of the Interior prior to the establishment of the
Special Operation Unit. On the contrary, the f act that this unit was established in 1996 can only
indicate that it had not existed before. The speech of FrankoSimatovic from 1997, to which
39
Ms Dauban referred , was described by the ICTY pro secution witness Vasiljkovic as, “so
40
exaggerated that it couldn’t possibly have been more pumped up” . The witness further confirmed
that the unit was given credit for things that we re actually accomplished by individual members of
41
the unit while they were members of different formations .
69. MsDauban made another effort to conn ect the “Red Berets”, as a supposed unit of the
Serbian State Security Service, with the crimes committed in Bosnia and Herzegovina. Referring
again to Mr.Deronjic, and under the subtitle “The role of paramilitaries from the FRY in the
takeovers of municipalities in 1992”, she discussed a meeting in which Mr.Deronjic allegedly
42
participated together with Fr anko Simatovic and Vinko Pandurevic . MsDauban carefully
avoided saying what the alleged meeting was about and instead she declared: “The meeting was
held to discuss the activities which were to be carried out in the Drina Valley.” 43
38See Central Intelligence Agency , Balkan Battlegrounds: A Military History of the Yugoslav Conflict,
1990-1995, Vol. II, p. 336, quotation in CR 2006/35, p. 30, para. 31 (Dauban).
39
See CR 2006/34, p. 60, para. 37 (Dauban).
40
ICTY, Prosecutor v. Milošević, testimony of Dragan Vasiljković, 19-21 February 2003, pp. 16701-16703.
41Ibid., p. 16703; see also pp. 16558-16561, 16630-16632, 16691-16707.
42CR 2006/35, pp. 27-28, para. 25 (Dauban).
43Loc. cit. - 22 -
70. We have seen how reliable a witness Mr. Deronjic was, but even if we are to believe him
this time, his testimony alleges that the meeting wa s held in June or July 1992, and that it solely
concerned the establishment of training camps for the members of the Bosnian Serb armed forces,
44
in which instructors from Serbia would take part .
71. Madam President, the so-called “takeove r” of municipalities in the Drina Valley,
45
according to Ms Dauban’s own account, had been completed in early May 1992 and the alleged
meeting that took place in June or July the same year could not possibly discuss this “takeover”.
Even if Mr. Deronjic told the truth this time, whic h is not very likely, the truth would only be that
the Serbian Ministry of the Interior, in agreemen t with the authorities of Republika Srpska, agreed
to help the training of the Bosnian Serb armed forces after the fighting in the Drina Valley had
already ended. There is absolutely nothing crimin al in the whole operation and this training, even
if it happened, had no connection with the previo us “takeover” of municipalities in the Drina
Valley. Nevertheless, the way in which the A pplicant tried to connect this statement of
Mr.Deronjic with that “takeover” shows that the record of the Applicant’s intentional
misrepresentation of the evidence is never-ending.
Arkan’s Serbian volunteer guard
72. According to the Applicant, “Arkan’s unit was in fact a unit of the State Security Service
of the Serbian Ministry of the Interior or the DB” 46. The main source for this allegation is a
protected witness who testified in the Miloševi ć trial, Ms B-129. By reading the transcripts of her
testimony given on 16 and 17April 2003, we can find that the testimony was almost completely
circumstantial and based on what she had heard from other people. In fact, she testified to a great
extent about the events that had happened befo re she even became Arkan’s secretary or even
“shared an office with the Serbian Volunteer Guard”.
73. However, even that testimony was wrongl y presented to this Court. The Applicant
alleged that Arkan’s unit was a unit of the State S ecurity of the Serbian Police, while in fact the
4ICTY, Prosecutor v. Miroslav Deronjic, statement of Miroslav Deronjic, Exhibit No. P600a, p. 38-41.
45
See CR 2006/6, pp. 10-26 (Dauban).
4CR 2006/9, p. 17, para. 25 (Karagiannakis). - 23 -
testimony of B-129 confirmed the opposite. Thus, in a response to a direct question of the accused,
the witness said the following:
“Q: You said that there were close ties with the DB. Did anyone ⎯ was
anyone from the SDG [Serbian Volunteer Guard] a member of the DB?
A: Do you mean during the war operations?
Q: What I mean is throughout, throughout all the things and time you know
about. Or let me be more specific. Did any of them have an ID card affiliating him to
the DB?
A: No.” 47
74. As to the issue of payment, referring to B-129, counsel for the Applicant declared, in
general terms:
“Arkan and his men were paid by the SerbianDB usually in cash which was
either delivered to the headquarters or collected. It was sometimes as much as three to
four million Deutschmarks at a time and this was newly printed money which had just
48
come out of the mint.”
This statement is rather dubious since it implies that, in addition to having control over Arkan, the
State Security of Serbia also had control over th e German Bundesbank, being able to print millions
of Deutschmarks as it felt necessary.
75. However, even if we accept this statement as true, by reading B-129’s testimony
carefully, we can see that her statement relies excl usively to what she referred to as the “Banja
Luka Operation”, the one action of the Arkan’s unit that the Applicant did not mention at all, and in
which Arkan’s unit was engaged to defend the Serb ian-held territory from the joint Muslim-Croat
attack. For the other two operations in which Arkan’s men participated, the witness gave an
entirely different account, or simply did not know the answer. This is what she stated with respect
to “Operation Pauk”, answering questions put by the accused:
“Q: All right. Now, do you know that it was precisely the leadership of the
Autonomous Province of Western Bosnia that they were hired out to help as
instructors, to help the army of the Autonomous Province of Western Bosnia? Do you
know that?
A: Yes.
47
ICTY, Prosecutor v. Milošević, testimony of B-129, 16 and 17 April 2003, p. 19568.
4CR 2006/9, 6 March 2006, p. 18, para. 27 (Karagiannakis), referring to testimony of B-129, p. 19454. - 24 -
Q: Well, do you, therefore, also know that the money which was sent for those
purposes, you say through the SDG, was the money that the authorities of the
Autonomous Province of Western Bosnia paid out for the jobs that they were
supposed to do; that is to say, the training for the instructors and so on?
A: Yes. They received money from Fikret Abdi ć during the Velika Kladusa
event. But it didn’t stop there with trai ning. The members of the guard were at the
49
front. They fought for Fikret Abdić.”
And in response to a similar question of the Pro secutor regarding the involvement of Arkan’s unit
on the Treskavica Mountain, the Prosecutor asked:
“Q: How were the Tigers at Treskavica paid?
A: Regarding their payments, I don’t know anything because all that happened
on the ground.” 50
76. Madam President, conclusions about the re lationship between the State Security of the
Republic of Serbia and Arkan and his men are not th at easy to be drawn. What is obvious is that
Arkan’s volunteer guard was not a part of the official structures of the Respondent as the Applicant
alleges. It is very probable, on the other hand, that Arkan had some contacts with a couple of
people who held high positions in the State Securi ty of the Republic of Serbia. These contacts
were, however, far from the relationship of subord ination and the Applicant has not offered any
reliable evidence that Arkan and his unit were under the command or control of the Respondent
when engaged in fighting in Bosnia and Herzegovina or elsewhere. On th e contrary, the evidence
suggests that whenever they were engaged on the territory of Bosnia and Herzegovina, they were
under the command of local Serbian forces, or even under the command of Fikret Abdić.
Scorpions
77. The third unit which the Applicant claimed had been a unit of the Ministry of the Interior
of the Republic of Serbia are the “Scorpions”. As I said in the beginning, this unit was not well
known during the conflict, but became notorious because of the horrific video showing the
execution of six Muslim prisoners near the village of Trnovo.
78. In her pleading, MsKaragiannakis discussed two documents which mention the
51
“Scorpions” as a unit of the Serbian Ministry of the Interior . Both documents are intercepts of
4ICTY, Prosecutor v. Milošević, testimony of B-129, 16 and 17 April 2003, p. 19562.
50
Ibid., p. 19479.
5See CR 2006/9, p. 16, paras. 20-22 (Karagiannakis). - 25 -
cables sent by the detached command post in Trnovo of the Republika Srpska police. The first
document was signed by the Deputy Commander of the Special Police Brigade,
Ljubiša Borovčanin, and the second by the Staff Commander of that detached command post,
Savo Cvjetinović. Both these men were officials of the police forces of Republika Srpska. And
both documents were addressed exclusively to various units within the Ministry of the Interior of
Republika Srpska. No unit or organ of the Respondent is mentioned as a recipient of these
documents.
79. Having been intercepts, the two documents are of a debatable authenticity. If they were
authentic then they should exist, or should have existed, in their original form. The Respondent did
not have access to the originals of those documen ts and from the form in which they were
presented it is difficult to assess how authentic they really are. Nevertheless, even if we accept
their authenticity, these documents do not prove anyt hing more than that some police officials of
Republika Srpska attributed the “Scorpions” to th e Ministry of the Interior of the Republic of
Serbia.
80. On the other hand, there is evidence that proves the contrary ⎯ that the “Scorpions”
were not a unit of the Serbian police. In her effort to create an impression of a long-term
Belgrade-directed genocidal history of the “Scorpions”, Ms Karagiannakis stated that the history of
this unit began in Vukovar, probably referring to the events in Vukovar in 1991. To prove this, the
counsel for the Applicant referre d to a witness in the Miloševi ć trial ⎯ C-017 5. Witness C-017
testified in that trial as a witness of the Prosecu tor. According to his testimony, witness was from
Western Herzegovina 5, a region around Mostar in Bosnia a nd Herzegovina, and he later became a
member of the unit called “White Wolves”. Acco rding to the witness, the “White Wolves” were a
unit of the army of Republika Srpska unde r the direct control of General Mladi ć 54. If we read the
part of his testimony to which counsel for the Applicant referred, we can see that his testimony was
misrepresented. However, this part of his testimony is much more revealing than that.
52
Ibid., p. 15, para. 18.
53
ICTY, Prosecutor v. Milošević, testimony of C-017, 11 June 2003, p. 22150.
5Ibid., p. 22135. - 26 -
81. The witness was involved in the fighting in Treskavica and he was later despatched to
Jahorina, under the orders of General Mladic. While staying in Jahorina, the witness saw the
“Scorpions” arrive, of which he gave the following account:
“A: . . . [w]hen we arrived at Jahorina... we first saw vehicles with license
plates of the Republic of Srpska Krajina. And after that, people in black uniforms
with markings of Arkan’s Tigers and othe rs with Skorpije markings and people from
the MUP of Srpska Krajina. Some of them were in black uniforms and others in the
55
standard police uniforms.
. . .
Q: Did you see any soldiers with scorpion patches as well?
A: Yes, I did.
Q: Who were they?
A: At that point in time, I had no idea, because that was the first time for me to
see people with such insignia, and it was the first time I had heard of the name
Scorpions. But later on, staying in Vukovar, I learnt that it was a unit from that area
whose commander was a certain Boco.” 56
A little later, the Prosecutor put to the witness one of the two documents which Ms Karagiannakis
discussed in her pleading. This is how the testimony continued:
“Q: And reference in this document is made to the Scorpions unit of the
Serbian MUP . . Were you aware that the Scorpions were a police unit related to the
Serbian MUP, or is that not known to you?
A: No, that was not known to me.” 57
82. This exchange between the ICTY Pr osecutor and the witness C-017, who actively
participated in the fighting on the Treskavica Mountain around Sarajevo, is significant for many
reasons:
(a) first, and I would say the least important, it show s that the witness did not say that the history
of the “Scorpions” began in Vukovar in 1991 (as alleged by the Applicant), but only that he
learned afterward, while staying in Vukovar, that the “Scorpions” were from that area;
(b)second, the testimony shows that the “Scorp ions” were, in fact, from the Vukovar area,
irrespective of when they were actually formed. Vukovar is, of course, in Croatia;
5Ibid., pp. 22076-22077.
56
Loc. cit.
5Loc. cit. - 27 -
(c) third, the testimony demonstrates that the “Sco rpions” drove vehicles bearing license plates of
Republika Srpska Krajina, again in Croatia;
(d) fourth, and the most important, it shows that a man who was heavily engaged in the fighting
alongside the “Scorpions” did not have any idea that the “Scorpions” were, in fact, a unit of the
Serbian police. It would be rather reasonable to expect that a man, who obviously had a lot of
knowledge about different units operating in Bosnia and Herz egovina, would know whether a
certain unit fighting next to him belonged to the Serbian police or not.
83. That the “Scorpions” arrived from Republik a Srpska Krajina was confirmed also by one
of the highest officials of the Republika Srpska poli ce at that time. In his interview to a Sarajevo
newspaper Slobodna Bosna , published last year after the video showing the execution of six
Bosnian Muslims had first appeared, Mr. Tomislav Kova č, former Deputy Minister of the Interior
of Republika Srpska at that time, stated that the “Scorpions” had arrived as a part of the Ministry of
58
the Interior of Republika Srpska Krajina .
84. It seems, thus, that the evidence regarding the status of the “Scorpions” is, at least,
controversial and, in light of the other evidence, the two documents referred to by the Applicant
cannot be taken as a sufficient proof that the “Scorpions” were a unit of the Serbian Ministry of the
Interior, especially since the authen ticity of the documents is disput able. Whatever is the case, all
the evidence, including the two documents ⎯ if they are authentic ⎯ clearly shows that, once
deployed in Bosnia and Herzegovina, the “Scorpions” entered the command structure of Republika
Srpska and were completely under the control of the Republika Srpska police forces.
Šešelj’s forces
85. Finally, Madam President, we come to the forces led by Vojislav Seselj. It is
uncontested that the paramilitary volunteer units of his political party participated in fighting in
Bosnia and Herzegovina, mostly in 1992, but contrary to what the Applicant claimed, they were not
under the control of the Serbian Ministry of the Interior. The main evidence on connections
between the Serbian police and Šešelj’s forces are va rious statements of Šešelj himself, given in
5Summary of the interview available in Englis h on: http://www.b92.net/ english/news/index.php?
version=print&dd=10&mm=06&yyyy=2005&nav_category=&nav_id=32192&order=priority&style=headlines. - 28 -
mid-1990s . First of all, these statements mainly rela te to the war in Croatia in 1991 and I have
already explained that the evidence concerning 1991 cannot be used in this case simply by way of
analogy. Secondly, this is what Vojislav Š ešelj said more recently, when testifying in the
Milošević trial in 2005:
“Q: Mr.Šešelj, in the course of that answer to Laura Silber on The Death of
Yugoslavia tape, you said that you were getting weapons from Miloševi ć’s police,
from the then Minister of Internal Affairs, Radmilo Bogdanovic, and then from his
successor. True or false?
A: This entire interview, which lasted about one hour, is one I published in one
of my books. And you could have found that too. So I’m not challenging the fact that
I gave this interview, however, for reasons of political propaganda, I threw
Mr. Milošević and Radmilo Bogdanovic into the entire story, wanting to annoy them
and to cause on their part an improper political reaction.” 60
86. The whole testimony of Vojislav Šešelj, which lasted for sever al weeks during the
months of August and September 2005, is full of denial of his previous statements in which he had
implicated Slobodan Miloševi ć and the State security service of the Serbian police in arming and
support of his units. Of course, it is quite possibl e that Mr. Šešelj lied during his testimony before
the ICTY. But then again, it is possible that he lied when he gave those previous interviews. We
do not intend to claim that the truth is one way or th e other; we just want to demonstrate that such
serious issues as State responsibility cannot be dete rmined from statements of a former politician,
indicted by the ICTY, who often changed those statements according to what he thought opportune.
International case law on paramilitaries
87. Madam President, distinguished Members of the Court, at the end of this analysis
concerning the relationship of the paramilitary un its which operated in Bosnia and Herzegovina
and the Respondent, I will briefly analyse the relevant international case law on paramilitaries.
88. The practice of international jurisdictions offers us only a few precedents with respect to
the issue of State responsibility for paramilitary ac tions. One of them was adjudicated by this
honourable Court, in the case concerning Military and Paramilitary Activities in and against
Nicaragua. The relevant paragraphs of the Judgment of 27 June 1986 have already been discussed
59
Video materials submitted by Bosn ia and Herzegovina on 16 January 2006, DVD No.2, referred to in
CR 2006/35, p. 27, para. 24 (Dauban).
6ICTY, Prosecutor v. Milošević, testimony of Vojislav Šešelj, 7 September 2005, p. 11917. - 29 -
extensively in this case by both sides. If the fact s of the two cases are compared they become
self-explanatory and it is obvious that the Applicant has failed to offer ev idence that would even
get close to the test of effective control adopted in the Nicaragua case. Mr. Brownlie has already
dealt with this in the first round and he will further elaborate on the issue today.
89. It is perhaps for this very reason th at the Applicant asked the Court to “forget
Nicaragua”. We do not agree with this proposal. Nevertheless, we will show that the most recent
international case law also does not support the legal conclusions proposed by the Applicant.
90. In the recent case of Prosecutor v. Enver Hadžihasanovi ć and Amir Kubura , the ICTY
issued the judgment on 15 March 2006. In this judgment, the question of Mujahidin paramilitaries,
which was the core of the examination by the ICTY, is dealt with extensively, on almost 150 pages.
Although this case is primarily about individual cr iminal responsibility, the ICTY analysed the
relationship between the Mujahidin and the Bosnian army. For that reason, it might be useful to
compare the facts analysed before the ICTY with the facts brought before you by the Applicant in
this case.
91. To sum up very schematically, th e conclusion of the ICTY in the Hadzihasanovic and
Kubura case was that the Bosnian army did not have control over the Mujahidin paramilitaries
61
before this unit was included de jure in the Bosnian army . This de jure admission took place in
August 1993, by effect of an order of the supreme command of the Bosnian army 62.
92. However, to come to the conclusion of the existence of the control, the ICTY did not
satisfy itself with taking note of the mentioned or der. It also verified whether this order was
actually put into practice. The Tribunal indeed concluded to this effect, after noting that the
Mujahidin unit was effectively accepted within the Bosnian army in an official ceremony, that it
depended on the logistic support of the Bosnian ar my corps it had been subordinated to, that it was
referred to as a unit of the respective corp s and that it was used in combat operations 63.
Additionally, the Court considered that the fact that five members of the Mujahidin were decorated
61ICTY, Prosecutor v. Hadzihasanovic and Kubura, Judgement, 15 March 2006, para. 805.
62
Ibid., paras. 837-840.
63Ibid., paras. 815, 823, 839. - 30 -
in 1994 by President Izetbegovi ć also proved the effective enforcement of the order creating this
unit .4
93. The Tribunal’s reasoning continues, following its own conclusions in the Čelebići case,
where the Tribunal had found that, for engaging responsibility, the existence of a control de jure
must be confirmed by an effective control 65. For the purposes of examin ing the existence of such
an effective control, the Tribunal verifies primarily the following criteria:
⎯ first, the power to issue orders and to have them executed;
⎯ second, the command of combat operations involving the forces concerned;
66
⎯ third, the absence of any other authority over the forces concerned .
94. Thus, the Tribunal noted that after having been put under the command of the Bosanska
Krajina operational group, the Mujahidin unit took part in several combat operations together with
67
other units of the same group and under its command . To the same effect, the Tribunal also noted
that the members of the former paramilitary unit were subject to the same rules of military
discipline as the other members of the army a nd that these rules were indeed applied to the
68
Mujahidins .
95. So, it is only after the Tribunal satisfied itself that the Mujahidin unit was created de jure
by an order of the Bosnian army, that this order was indeed put into practice and that the Bosnian
army had effective control, that it engaged the responsibility of the defendant 6.
96. Madam President, applying the same reas oning to the case brought before you, one may
consider the regulations of 1991, concerning the admission of volunteers in the JNA, similar to the
order of August 1993, concerning the creation of the Mujahidin unit by the Bosnian army.
However, following the pattern est ablished by the ICTY, one can easily notice that it is not
respected in the case of Serbian paramilitaries, especi ally during the relevant period, that is, as of
April 1992.
64Ibid., para. 822.
65
Ibid., para. 845.
66
Ibid., para. 851.
67Ibid., para. 848.
68Ibid., para. 852.
69Ibid., paras. 848, 852. - 31 -
97. The Respondent contends that the 1991 regul ations were not put into practice to the
extent required by the reasoning presented above. Thus, no record of an official ceremony
accepting the units of volunteers exists, let alone a ceremony for the decoration of any of their
members. Paramilitary units we re never referred to as JNA un its. They stayed, as they are
commonly known, and as they are indicated by the Applicant, paramilitary units.
98. During the relevant period the paramilitary units did not depend on the logistic support of
the JNA, and they were not used in combat ope rations under the control of the JNA or any other
organ of the Respondent. Further on, when verify ing the existence of an effective control, the
conclusion follows as to the absence of such control on the part of the Respondent. Thus, it has not
been proved that during the relevant period any organ of the Respondent issued orders to the
paramilitary units or that, if it did, they were executed. As shown, these units were in the
beginning acting either indepe ndently or under the command of the proclaimed State of the
Bosnian Serbs.
99. This fact brings about the other criterion mentioned by the ICTY, that is, the absence of
any other authority over the forces concerned, whic h is not fulfilled as well. Equally, no case of
application of rules of military discipline by the Respondent was indicated before this Court.
100. To conclude, although it is probable that immediately after the issuance of the
regulations in 1991 a certain degree of control exis ted with respect to the units of volunteers, the
development of circumstances in 1992 led to the loss of such control and the gradual increase in the
independence of the paramilitary units. This situation had remained until the summer of 1992,
when the paramilitary units were formally put under the control of either the army or of the police
of the Republika Srpska, under which control they stayed until the end of the war in Bosnia and
Herzegovina.
101. It follows, Madam President, that even if we “forget Nicaragua” and apply the legal
reasoning of the ICTY, the conclusion remains the same ⎯ the Respondent was not in control over
the paramilitary forces operating in Bosnia and Herzegovina. - 32 -
Crimes attributed to paramilitary forces
102. Madam President, distinguished Members of the Court, it is often asserted that the
crimes committed by paramilitary forces are the most terrible crimes committed in Bosnia and
Herzegovina. We do not dispute that these units have committed crimes and, while we maintain
our position that every crime in Bosnia and He rzegovina, and everywhere else in the former
Yugoslavia, has to be investigated and adequately punished, we nevertheless have to take a brief
look at the crimes that are attributed to para military forces that were allegedly controlled by
Belgrade.
103. Apart from Slobodan Miloševi ć, who was indicted for all crimes in Bosnia and
Herzegovina, and whose indictment is, for that reason, of no particular use for this analysis, there
are four other people from Serbia and Montenegro who have been indicted before the ICTY for
crimes connected with paramilitary activities.
10Rl.knjatovi ć Arkan was the first to have been indicted. He was initially indicted
70
only in relation to crimes in Sanski Most . Since the proceedings against him were terminated
following his death, the indictme nt remained as it initially was. However, we can safely assume
that the indictment would have been expanded with other crimes attributed to Arkan’s unit. He
was charged with crimes against humanity, grave breaches of the Geneva conventions and
violations of the laws or customs of war.
105. The second is Vojislav Šešelj, who was in itially indicted on 14 February 2003. His
indictment was modified and amended on 15 July 2 005. Although rather confusing in identifying
which particular crimes are attributed to Šešelj’ s paramilitaries, the indi ctment charges Šešelj’s
forces with direct commission or participation in the commission of crimes in Zvornik, Bosanski
71
Šamac, outskirts of Sarajevo, Bijeljina, Mostar and Nevesinje . Vojislav Šešelj has been charged
with crimes against humanity and violations of the laws or customs of war.
106. Lastly, on 1 May 2003, the ICTY Prosecutor issued an indictment against
Jovica Stanišić and Franko Simatović, the former being the head and the latter being a high official
of the State Security Service of the Serbian Ministry of the Interior in the first part of the 1990s.
70
ICTY, Prosecutor v. Ražnjatović, Initial Indictment, 30 September 1997.
71
ICTY, Prosecutor v. Šešelj, Modified Amended Indictment, 15 July 2005, paras. 22-27. - 33 -
They were charged on the basis of participation in the joint criminal enterprise and on the basis of
command responsibility for all the crimes allegedl y committed by members of the Serbian State
Security Forces in Bosnia and Herzegovina (the so-called “Red Berets”), as well as for all the
crimes committed by Arkan’s unit and the “Sco rpions”. According to the second amended
indictment, they were charged with crimes committ ed in Bijeljina, Bosanski Šamac, Doboj, Sanski
72
Most, Srebrenica and Zvornik . The charges for Srebrenica are now explained to relate only to the
village of Trnovo 73. Stanisic and Simatovic are charged with crimes against humanity and
violations of the laws or customs of war.
107. As the Court will appreciate, none of th ese men who were charge d in connection with
paramilitary activities in Bosnia and Herzegovina has been charged with genocide. And,
MadamPresident, these four men are not simple individual perpetrators charged with individual
crimes. These are the four men charged with all the crimes that are alleged to have been committed
by paramilitary units supposedly under the cont rol of Belgrade. These are the men whom you
would expect to have had the genocidal intent if su ch intent had existed. Still, they were not even
charged with genocide. Of course, this Court is not bound by legal determ inations of the ICTY,
and especially not by legal qualifications of the ICTY Prosecutor, but it is indicative that the
ICTY Prosecutor did not even try to charge any of these four men with genocide.
Conclusions
108. Madam President, distinguished Members of the Court, at the end of this rather long
presentation on the paramilitaries, the following conc lusions are submitted on behalf of Serbia and
Montenegro:
(a) first Serbian paramilitary units were formed in 1991, during the war in Croatia. They were
formed as volunteer units and the JNA tried to put them under control with various regulations
adopted in 1991;
(b) these regulations had limited effect and most of the paramilitary units remained out of the
control of the JNA. In any case, these regula tions are relevant exclusively for the war in
72
ICTY, Prosecutor v. Stanišić and Simatović, Second Amended Indictment, 20 December 2005, paras. 41-67.
7Ibid., para. 55-57. - 34 -
Croatia in 1991 and the Applicant has not offere d any evidence that these regulations remained
in force in 1992 in Bosnia and Herzegovina;
(c) in the beginning of the war in Bosnia and Herzegovina paramilitary units were not under the
control of the Respondent, and they acted either independently or under the control of various
local organs of the new self-proclaimed State of the Bosnian Serbs;
(d) in the summer of 1992, Republika Srpska adopted various decisions and took other measures to
put the paramilitary units under its control;
(e) these measures were successfully put into prac tice by the end of 1992, and after that all
paramilitary units operating in the territory of Bosnia and Herzegovina were either incorporated
in or put under the command of the Republika Sr pska authorities. This included paramilitary
units and individuals from Serbia and Montenegro;
(f) after 1992, paramilitary units from Serbia and Mo ntenegro were involved in the territory of
Bosnia and Herzegovina on only few occasions;
(g) the Applicant has not proved that during their stay in that territory the paramilitaries were under
the command or control of the Respondent. On the contrary, all the evidence points out that
they were under the command of the local authorities;
(h) finally, the crimes committed by the paramilita ry units, however grave they were, did not
amount to genocide.
Madam President, this concludes my presenta tion. Thank you for your attention and I
respectfully ask you to give the floor to Mr. Ian Brownlie.
The PRESIDENT: Thank you, Mr. Cvetković. I now call Mr. Brownlie.
Mr. BROWNLIE: Thank you, Madam President.
INTRODUCTION
1. Madam President, distinguished Members of the Court, in this second presentation, I shall
pursue four tasks:
first: a rebuttal of the Bosnian delegation’s atte mpts to denigrate the documentary and other
evidence contradicting the thesis of attribution; - 35 -
second: the reaffirmation of the evidence against attribution;
third: reaffirmation of the position of Serbia a nd Montenegro relating to the interpretation
and implementation of the Genocide convention; and
finally, a further reconnaissance of relevant principles of State responsibility.
A. Rebuttal of the Bosnian attempts to denigrate the evidence
contradicting the thesis of attribution
2. Madam President, in the first round, on be half of Serbia and Montenegro, I presented a
substantial quantity of reliable evidence, includi ng significant third party sources, on the question
of attribution. This evidence produced a strong concordance which contradicted the assertion that
Republika Srpska and its armed fo rces were under the control of the Belgrade Government. The
response of the applicant State has been unconvinci ng. It has also raised a number of questions.
Why is the applicant State so reluctant to rec ognize the relevance and weight of significant third
party sources, including the Netherlands Governme nt report, the substantial CIA study and the
book by LordOwen? MsKaragiannakis dismi sses the Netherlands Government report as “not
exhaustive” and states that “the writers did not have the benefit of all of the evidence of Belgrade
involvement which we have presented to the Co urt” (CR2006/32, p.64, para.79). But the
Netherlands report runs to thousands of pages. Is it not strange that the Applicant did not consider
that it might be relevant and helpful to the Court?
3. Madam President, in our opinion the an swer lies in the reluctance of our learned
opponents to deal with the specifics of individual documents, and an indifference to matters of
actual context.
The rebuttals offered by the applicant State: response
4. It is now appropriate to examine the proposed rebuttals of our evidence produced on
behalf of Bosnia and Herzegovina–– and, firs t, the report of the Secretary-General dated
30 May 1992. - 36 -
(a) Report of the Secretary-General dated 30 May 1992
5. This document appears in the transcript ( CR 2006/16, p. 41). Mr. Ollivier suggests that
the report is not definitive (CR2006/34, paras.5- 7). However, the key paragraph is, I submit,
reasonably clear and circumstantial, and I shall quote it:
“Given the doubts that now exist about th e ability of the authorities in Belgrade
to influence General Mladic, who has le ft JNA, efforts have been made by
UNPROFOR to appeal to him directly as well as through the political leadership of the
‘Serbian Republic of Bosnia and Herzegovina ’. As a result of these efforts General
Mladic agreed on 30 May 1992 to stop the bomba rdment of Sarajevo. While it is my
hope that the shelling of the city will not be resumed, it is also clear that the
emergence of General Mladic and the forces under his command as independent actors
apparently beyond the control of JNA greatly complicates the issues raised in
paragraph 4 of Security Council resoluti on 752 (1992). President Izetbegovic has
recently indicated to senior UNPROFOR offi cers at Sarajevo his willingness to deal
with General Mladic but not with the political leadership of the ‘Serbian Republic of
Bosnia and Herzegovina’. ”
6. In my submission, this represents a carefu l contemporary appreciation of key questions of
fact relating both to the political and military status quo.
(b) Statements made by Lord Owen on relations of Republika Srpska and Belgrade
7. Second, there are the stat ements made by LordOwen on relations of Republika Srpska
and Belgrade. The quite extensive evidence on this question was set out in the first round
(CR2006/16, pp.44-48). This is detailed and reli es upon three different sources. In face of this
material Mr. Ollivier, in the fashion of his delegation, picks out a few short phrases (CR 2006/34,
paras. 8-11).
(c) The work of the International Conference on the former Yugoslavia and the recognition of
the separate political identity of the Bosnian Serbs
8. Third, there is the work of the Interna tional Conference on the former Yugoslavia and the
recognition of the separate political identity of th e Bosnian Serbs. In my first round speech I
reviewed the extensive evidence to the effect that the practice of the International Conference on
the former Yugoslavia and the Chairman of the Steering Committee recognized the negotiating
status of the Bosnian Serb party (CR2006/16, para s.123-132). This material is of considerable
significance. If the Bosnian Serbs were a fiction, why should they be given a role on the same
level as the other negotiating parties? - 37 -
9. Mr.Ollivier ignores the awkward realities, namely the equal negotiating status of the
Bosnian Serbs, and concentrates on what transpir ed at Dayton, when in any event the Bosnian
Serbs remained a party to the negotiations (CR 2006/34, paras. 12-17).
(d) The decisions of the ICTY relating to genocide
10. I come now to the decisions of the ICTY relating to genocide, significant and detailed
decisions in which there is no reference to an y involvement of the FRY Government, or any
command structure relating to leaders in Belgrade (CR 2006/17, paras1.63-169).
MsKaragiannakis responds with the observation: “However, these ICTY Chambers were not
seized with the question of Belgrade involvement and thus were not presented with relevant
evidence of this. Therefore, the lack of findings in this regard is not surprising.” (CR2006/32,
p. 64, para. 78.)
11. Madam President, first of all I must point out that this evidence was proposed by me as
evidence of the non-involvement of the Belgrade Government in the decision-making in Republika
Srpska and not with particular reference to Srebrenica as counsel appears to think. Secondly, given
the legal significance of the issue of the command structure, and the constant assertions of Belgrade
control by the Bosnian delegation, the absence of the element should be surprising at least to
Ms Karagiannakis.
(e) The final rupture between Belgrade and the Bosnian Serbs on 4 August 1994
12. In my first round speech, on behalf of Serbia and Montenegro, I presented substantial
evidence of the rupture of relations between Repub lika Srpska and Belgrade in the period 1993 to
1994 (CR2006/16, paras.122-144; and CR2006/16, paras.170-172). The evidence presented
involves, in particular, the considered views of Lord Owen, who was a major player in the
negotiations.
13. There is no point in repeating the ev idence which Mr.Ollivier sweeps to one side
(CR2006/34, paras.18-22). This cursory dismissal of major quantities of concordant evidence is
typical of the style of our opponents. The credibility of Lord Owen? Ignore it. His direct
involvement in events? Ignore it. The public evid ence of the rejection of the Vance-Owen Plan in
Pale? Ignore it. - 38 -
14. Now, of course, Mr.Ollivier points out th at Belgrade was giving assistance to Pale to
some extent. But, Madam President, this is to miss the point, which is the independence of
Republika Srpska in the political sphere. It is, of course, necessary to recall the history. The
Bosnian Serbs were eventually brought to th e negotiating table as the result of a bombing
campaign.
(f) The report of the Netherlands Institute for War Documentation on Srebrenica
15. This report was commissioned by the Netherlands Government. This important report
was relied upon by Serbia and Montenegro in the first round and I now reaffirm that reliance (see
CR 2006/17, paras. 173-176). Counsel for Bosnia and Herzegovina has the nerve to state that this
report is “by its own admission, not exhaustive”, but does not explain what this means. On any
normal assessment, it is a major third party source. One further point. Ms Karagiannakis refers to
the report “as a source which does not implicate Belgrade”. In fact the report expressly exculpates
the FRY Government. In the Epilogue to the report the conclusion is that: “There is no evidence
to suggest any political or military liaison with Belgrade, and in the case of this mass murder such a
liaison is improbable.” (Epilogue, point 10.)
(g) The Milosevic conversation with Lord Owen on 16 April 1993
16. The independent role of the Belgrade G overnment in relation to Republika Srpska is
confirmed by the episode of the telephone call i nvolving President Milosevic and Lord Owen on
16April 1993. The relevant documents were set forth in my first round speech on attribution
(CR 2006/17, paras. 177-183). The telephone call is authenticated by several sources, including the
transcript of the Milosevic trial. Milosevic is seeking to warn the UNPROFOR Commander of the
feud which existed between the two armies as a con sequence of actions in the past against Serb
villages. Milosevic was trying to frustrate the operations of Mladic and Karadzic as the documents
make clear.
17. Ms Karagiannakis (CR 2006/32, paras. 82-83) states that I quoted this evidence in order
to rebut the testimony of General Clark in the Milosevic case. That is not so. The evidence was
introduced as a major element in my first speech on attribution as a part of the confirmatory - 39 -
evidence of the non-involvement of the Belgrade Government in relation to Republika Srpska. My
reference to General Clark appears later in the same speech (CR 2006/17, paras. 292-296).
18. MsKaragiannakis alleges, without any basis, that Milosevic knew about Srebrenica
before it happened. What Milosevic knew was th at which was a matter of public knowledge in the
region, namely, that raiding from the enclave had created a legacy of hatred. There is confirmation
of the raids to be found in the following sources:
(a) The CIA study, Balkan Battlegrounds (Vol. I, p. 184).
(b) The Netherlands Government report (pp. 1277-1278).
(c) The judgment of the Trial Chamber in the Krstic case (Judgement, para. 24).
(d) The evidence of General Dannatt (CR 2006/23, p. 42: answer to my question).
19. Madam President, on this matter of the Lo rd Owen-Milosevic conversation, counsel for
Bosnia and Herzegovina is astonishingly evasive. She does not deny that it took place. Lord Owen
clearly did not believe at any stage that Belgrade had advance knowledge of the murders in 1995.
And, finally, why are counsel for Bosnia and Herzegovina so reluctant to accept the opinion of
independent contemporary observers?
B. In addition to this material the respondent State has produced documentary evidence
rebutting allegations of the involvement of the Belgrade Government
specifically in the events in Srebrenica.
(a) Report of the Secretary-General dated 15 November 1999
20. In the first round the report of the S ecretary-General dated 15 November 1999 was
submitted (CR 2006/17, para. 268). As I pointed out, this substantial report, entitled “The Fall of
Srebrenica”, contains no indications that the FRY Government had been involved in the events.
(b) The evidence of the former FRY President Zoran Lilic in the Milosevic trial
21. In my first round speech on attribution I pointed out that the former President of the
FRY, Zoran Lilic, giving evidence in the Milosevic case, had denied that Milosevic had any role in
the events in Srebrenica. The relevant passag e I include in the transcript for the sake of
convenience: - 40 -
“Q. After the fall of Srebrenica and when the details of the massacre were
discovered, the accused’s reaction was, as you’ve already told us, but just remind us.
A. Yes. I tried to link that up to the constitution of the centres. And one of the
fears was, in which I issued an order for th is to be stopped, that President Milosevic
himself-actually, I was in a situation in which I could directly at the beginning of
August have intensive meetings to discu ss other issues and problems within the
Federal Republic of Yugoslavia. I know that he was personally very upset and angry,
and I think that he was very sincere in his behaviour and conduct, and he even said at
one point that that leadership from Pale, that they were mad, if they had actually done
that. And I’m quite sure that as far as he is concerned, he could not have issued an
order of that kind. I do believe that Sr ebrenica, unfortunately, is the result of the
individuals who allowed themselves to perpetrate an act of that kind, and it is my deep
conviction that it cannot be placed in the context of any participation on the part of the
Yugoslav army at all, and that is wh y I said that Mr.Milosevic, which was
exceptionally angry, his reaction was very stro ng, and he considered that this kind of
behaviour and conduct would worsen our positions with respect to preparations for the
Dayton Conference. I think he even said that at one of the meetings. Of course,
nobody would take on this great burden on the side of the Bosnian Serbs, that is.”
(Transcript, 17 June 2003, pp2 .2616-22617.) (See further CR 2006/17,
paras. 271-272.)
22. In this context Ms Karagiannakis has advi sed the Court not to consider this evidence “as
objective and conclusive evidence on the issue of Srebrenica” (CR2006/32, para.81). If
Mr.Lilic’s evidence is not to be taken into account , then one should rule out a great deal of the
evidence produced by the applicant State, much of which is second-hand.
(c) The evidence of Colonel Robert Franken, De puty Commander of the Dutch battalion in
Srebrenica (CR 2006/17, paras. 274-276)
23. His answers to the two questions from Mr. Milosevic appear in the transcript as follows.
“Mr. Milosevic: [Interpretation]
Q. But anyway, Mr.Franken, do you know that in the last part of the main
report of the Dutch government 2001 in point 10 it says literally, ‘There are no
indications that the action was launched in co-operation with Belgrade either in
respect of political or military co-ordination.’ Are you [illegible] of that?
A. [From Franken] I’ve read that. Yes, I’ve read that. That’s correct.
Q. [From Milosevic] Is that in keeping with what you know from that period of
time? Does it coincide with your knowledge?
A. [From Franken] At least for me, I did not have any evidence that it was
launched in co-operation with Belgrade. A nd again, I read all kinds of reports and
opinions and papers where all kinds of scenarios were analysed, and so forth. Again, I
do not have any proof that the action, being the attack on the enclave, was launched in
co-operation with Belgrade.” - 41 -
24. Unfortunately, Madam President, we shal l depart from these hearings without knowing
what counsel for Bosnia has to say about Colonel Franken’s evidence.
Madam President, if it were it convenient for you I can stop there. Thank you.
The PRESIDENT: Yes. Thank you, Mr. Brownlie. The Court will now briefly rise.
The Court adjourned from 11.20 a.m. to 11.45 a.m.
The PRESIDENT: Please be seated. Professor Brownlie.
Mr. BROWNLIE: Thank you, Madam President. I was reviewing the evidence rebutting
allegations of the involvement of the Belgrade Go vernment in the events in Srebrenica and I had
just reached the item:
(d) The CIA account published in May 2002
25. This contains the following passage as a conclusion to the section entitled “The
Possibility of Yugoslav Involvement”:
“No basis has been established to imp licate Belgrade’s military or security
forces in the post-Srebrenica atrocities. Wh ile there are indications that VJ or RDB
(the Serbian State Security Department) may have contributed elements to the
Srebrenica battle, there is no similar evid ence that Belgrade-directed forces were
involved in any of the subsequent massacres. Eyewitness accounts by survivors may
be imperfect recollections of events, and details may have been overlooked.
Narrations and other available evidence sugg est that only Bosnian Serb troops were
employed in the atrocities that followed the military conquest of Srebrenica.” ( Balkan
Battlegrounds, Vol. I, p. 353.)
26. In response to my quotation of this paragraph, MsKaragiannakis quotes an earlier
introductory paragraph, one of a sequence of three paragraphs (see CR2006/32, para.80).
Madam President, the paragraph I quoted in the first round is clearly the concluding assessment.
(e) The intercept evidence presented in the Krstic trial
27. We introduced some important ma terial which was presented in the Krstic case
(CR2006/17, paras.278-279). This intercept ev idence has not been att acked by Bosnia and
Herzegovina and it is important because it relates to the period immediately after Srebrenica and - 42 -
provides clear indications that Republika Srpska forces did not act in co-operation with the
Belgrade authorities. It appears in my argument in CR 2006/17, paragraphs 278 to 279.
C. The legal significance of the events in Srebrenica
28. In the first round of these oral hearings I gave an account of the background to the
Srebrenica murders of 1995 (CR2006/16, paras.1-12 ). In addition, and also in connection with
Srebrenica, I responded to the material discu ssed by Mr.vandenBiesen under the heading
“Srebrenica or ethnic cleansing of Eastern Bosnia”: my discussion can be found at CR2006/16,
paragraphs 282 to 287.
29. These aspects of my two speeches relating to Srebrenica and the Drina Valley have been
the subject of riposte by MsKaragianna kis (CR2006/32, paras1. -42) and MsDauban
(CR2006/35, paras.28-29). In relation to these two speeches I must make a preliminary point.
Both speakers state that my intention was to justify the events in Srebrenica. That was manifestly
not my intention, and my choice of words makes that clear.
30. Madam President, my purpose in indicati ng the evidential sources available on the issue
of Srebrenica was twofold. In the first place I thought it necessary to establish, in front of the
Court, the serious limitations of the presentation of facts in the mode adopted by our distinguished
opponents. In the oral hearing Bosnia and He rzegovina has, until the second round, avoided any
detailed discussion of Srebrenica and the historical sequence of events. At least we now have
MsKaragiannakis discussing the number of Serb soldiers and civilians killed and referring to
“Muslim armed units”. What an enormous change in the presentation of the facts by our
opponents!
31. And thus my first purpose was to indi cate the different realities hiding behind the
overconfident and monolithic assertions and repetitions of counsel for Bosnia and Herzegovina.
32. And then, and more importantly, my se cond purpose was to further my argument on
attribution by showing the historical background to the events in Srebrenica and establishing that
the causes were local. The existence of the fe ud between the two armies was a matter of public
knowledge. It was what our opponents would describe as a “notorious fact”. - 43 -
33. The reliable evidence of Lord Owen confirms the long-standing feud between the two
armies: and if I can quote the evidence as it was in my first round speech:
“178. Lord Owen describes the episode in his statement, in written form and
dated September 2003, to the ICTY. With reference to the conditions in the
Muslim-held enclave at Srebrenica, Lord Owen states:
‘General Philippe Morillon’s brave attempt to do something has
been well chronicled. What that pe rsonal initiative demonstrated for the
future, however, was that there was no way that we would get the
Bosnian Serbs to lift their blockade unless there was true demilitarization
and such demilitarization was politically unacceptable within the Security
Council, largely because of the oppositi on of the Bosnian Government in
Sarajevo and the Muslim commander in Srebrenica’.
179. Lord Owen then quotes in his stat ement to the ICTY the relevant passage
from his book, Balkan Odyssey. The passage reads as follows:
‘On 16 April I spoke on the telephone to President Milosevic about
my anxiety that, despite repeated as surances from Dr.Karadzic that he
had no intention of taking Srebrenica, the Bosnian Serb army was now
proceeding to do just that. [This is in 1993.] The pocket was greatly
reduced in size. I had rarely heard M ilosevic so exasperated, but also so
worried: he feared that if the Bo snian Serb troops entered Srebrenica
there would be a bloodbath because of the tremendous bad blood that
existed between the two armies. The Bosnian Serbs held the young
Muslim commander in Srebrenica, Naser Oric, responsible for a massacre
near Bratunac in December 1992 in which many Serb civilians had been
killed. Milosevic believed it would be a great mistake for the Bosnian
Serbs to take Srebrenica and promised to tell Karadzic so. He did not
think we would be able to get Canadian troops into Srebrenica for some
time but thought we might be able to negotiate UN monitors. I agreed to
meet Milosevic in Belgrade for lunch on Wednesday, 21 April.’ ( Balkan
Odyssey, 1995, p. 143; Lord Owen’s Statement, pp. 35-36.)
180. This exchange with Milosevic was confirmed by Lord Owen during the
evidence in the ICTY on 3 November 2003 (Transcript, pp2 . 8411-28412,
28415-28416).” (CR 2006/17, paras. 178-180.)
34. Madam President, our opponents seek to challenge the strong and concordant evidence of
the raids on Serb villages, but the reasoning adopt ed does not help their cause. Thus, with the
assistance of Balkan Battlegrounds , it is asserted that it was the Serbs who moved first in the
sequence of events: I refer to the speeches of MsKaragiannakis (CR2006/32, paras.9-10) and
MsDauban (CR2006/35, paras.30-31). Madam Pres ident, such amendments simply confirm the
local character of the sequence of events: they make no real difference.
35. My main contention is that, on the evidence, when the Bosnian army was defeated in the
field, the results were in local terms the taking of revenge. No long-term planning was involved - 44 -
and certainly no planning in Belgrade. The evid ence, which our opponents prefer to set aside, is
that Belgrade did not approve of the situati on in the enclave and its possible dangers. As
LordOwen pointed out, the demilitarization of the enclave was opposed by the Bosnian
Government and the Muslim commander in Srebrenica.
36. In the speeches of counsel for Bosnia and Herzegovina relating to Srebrenica and the
question of the raids on Serb villages outside th e enclave, certain spectacular examples of double
standards in matters of evidence are to be fo und. First of all, both MsKaragiannakis and
MsDauban display a surprising reluctance to a llow any significance to independent third party
sources, such as Lord Owen or the Dutch Government report.
37. A similar example can be found in the pl eadings of Ms Dauban (CR 2006/35, para. 35).
Counsel rejects the evidence of Sir Michael Rose, concerning raids by Naser Oric because “he did
not have first-hand experience of such events”. In the first place such raids continued long after
1993. I referred Ms Dauban to the speeches of Professor Franck, where no insistence is to be found
upon first-hand experience as a standard of eviden ce. Professor Frank emphasized the making of
inferences from patterns of events. Well, Madam President, one of the patterns of events was the
making of raids by Naser Oric and the inability of United Nations commanders to stop those raids.
The raids were a matter of public knowledge a nd a part of the professional knowledge of United
Nations commanders.
38. On the same page of the transcript MsDauban quotes from the report of the Military
Analysis Team of the Prosecutor in the Milosevic case (CR 2006/35, para. 36). This was compiled
by two experts. Did they have first-hand experience or professional experience comparable to that
of Sir Michael Rose? Counsel did not find it necessary to explain these inconsistencies.
Conclusions on the evidence of attribution in these proceedings
39. Madam President, at this stage I can summa rize the state of the evidence on the question
of attribution.
First proposition. The evidence of attribution given prominence by the applicant State is
both insubstantial and unreliable. - 45 -
Second proposition. The categories of material invoked by my opponents do not produce
even a prima facie case of attribution.
Third proposition . The attempts of the applicant St ate to denigrate the concordance of
evidence on the absence of attribution produ ced on behalf of the respondent State have
conspicuously failed.
D. State responsibility under the Genocide Convention
40. Madam President, I shall move on to certain other questions on which the Parties are still
divided. The first of these topics is the interpre tation and application of the Convention itself, and
the second is the application of the principles of State responsibility. However, before I develop
my argument, I would like to deal with a number of baseless complaints presented by both
Professor Pellet and Professor Condorelli (see, for example, CR2006/31, para.62 (Pellet); and,
CR 2006/35, para. 3 (Condorelli)).
Complaints of the applicant State
41. The burden of these complaints w as that in my first round speech I ignored the
arguments of my opponents on State responsibility. Madam President, this is simply not true.
Much of my long first speech was devoted to the question of attribution on the basis of the “organic
thesis” of the applicant State. In other wo rds, the working assumption was the Applicant’s
argument that Republika Srpska was an organ of the FRY, or was under its effective control.
42. The first alternative thesis, that is, th e application of the control test, as argued by
Professor Pellet, was examined in considerable detail (see CR 2006/16, paras. 111-119). The basis
of the status of Republika Srpska was then examined at considerable length.
43. The further alternative arguments, str essed by Professor Pellet and Professor Condorelli,
was that of complicity of the FRY. The viability of this argument depends on the preferred view
on the question whether the Convention creates the direct responsibility of the State for acts of
genocide, including the ancillary acts. - 46 -
The relevance of the travaux préparatoires
44. The counsel for Bosnia and Herzegovina do not show any real interest in the drafting
history of the Convention. Professor Pellet leaves the subject aside. Professor Franck purports to
deal with the matter but does so in purely rhetor ical terms (CR 2006/32, para.13). He complains
that Mr.Brownlie only sees ambiguity. But this, with respect, is a superficial response. The
ambiguity is real and is revealed by the drafting history, and by the doctrine. ArticleIX of the
Convention forms part of the problem and does not provide the solution as my friend
Professor Franck claims. It is generally accepted, outside Bosnia and Herzegovina, that the text of
a treaty is to be interpreted by reference to the text as a whole (see, for example, Lord McNair, The
Law of Treaties , 1961, p.381). Professor Franck has an ev ident resistance to the specifics and
regards reference to the drafting history as somewhat unfair (CR2006/32, para.17). This is
strange for various reasons, including the fact that his colleague, Professor Stern, found it
appropriate to refer to the drafting history.
45. Incidentally, Madam President, given that there are 11 judges on the Court who were not
Members in 1996, and given that the drafting hist ory was an important part of my argument, I
re-presented the argument instead of making a formal cross reference to the transcript of 1996.
The applicable law and the question of criminal responsibility
46. I move now to the question of the appli cable law and criminal responsibility. In my
argument in the first round I argued at length and w ith reference to both contemporaneous doctrine
and subsequent doctrine that the Convention does not provide a vehicle for the imposition of the
criminal responsibility of the State (CR2006/16, paras.20-81). In response Professor Pellet has
confirmed that he agrees with this view ( CR2006/31, paras.9-11). And he points out that
international law does not recognize the criminal responsibility of States (ibid., para. 11).
47. But, Madam President, this confirmati on does not solve the problem, as Professor Pellet
appears to believe. The Convention has the purpose of preventing and punishing the crime of
genocide. Genocide is not recognized in gene ral international law as an example of the
internationally wrongful act of a State as describ ed in the ILC Articles. Consequently, when
counsel for Bosnia and Herzegovina argues that the Convention creates a direct responsibility of
the State for the crime of genocide, this leads to a conundrum. Professor Pellet recognizes that - 47 -
there is no such responsibility of the State and, at the same time, claims that such responsibility was
created by the Genocide Convention. Not only that but, on behalf of Bosnia, it is claimed that the
Articles of the International Law Commission apply to such a crime. With respect, the provisions
can have no such application.
48. Professor Pellet cannot demonstrate how the direct responsibility of the State for the
crime of genocide can be transformed into an ordi nary breach of an international obligation of the
State in accordance with the provisions of th e Articles adopted by the International Law
Commission. This transformation takes place in paragraph 13 of his speech on 18 April but is not
explained adequately.
The relevance of causes of action to the app lication of the Convention in the sphere of
remedies
49. The approach to the application of the Convention adopted by our opponents meets
serious difficulties in the sphere of remedies. The position has been explained in my first round
speeches as follows: on 13 March (CR2006/17, paras.298-304); and 16 March (CR2006/21,
Section F, p. 21, paras. 1-5).
50. These passages appear to have escaped the attention of my friend and colleague
ProfessorPellet. With the permission of the Co urt I would like to recall the main points. The
premise of the discussion is the assumption by ProfessorPellet that the principles of general
international law on State responsibility and remedi es can be applied automatically in order to
provide a treaty text with, so to speak, a legal en tourage. This process of supplementation is not
limited to questions of interpretation but involves the superscription of matters of legal substance.
The principles relied upon by Bosnia-Herzegovina are secondary rules of responsibility
51. The presentations made on behalf of Bosnia and Herzegovina must be seen in a general
perspective. The emphasis placed upon the principles of State responsibility is misleading because,
legally speaking, the tail is wagging the dog. The principles of State responsibility constitute
secondary rules in relation to the treaty provisions of the Genocide Convention, which are primary
rules. This distinction was adopted and applied as fundamental to the work of the International
Law Commission. - 48 -
52. The Commentary by the Special Rapporteur contains the following assessment of the
distinction:
“Thus whatever its intellectual origins may have been, the central organizing
idea of the 1996 Draft Articles, the distinction between primary and secondary rules of
responsibility, was indispensable. Without su ch a distinction, there was the constant
danger of trying to do too much, in effect, of telling States what kinds of obligations
they can have. However difficult it may be to draw in particular cases, the distinction
allowed the framework law of State responsib ility to be set out without going into the
content of these obligations. That would be an impossible task in practice even if it
were possible in principle (which for the reason given it is not). The distinction
between the two was made very clearly by the International Court in the
Gabčíkovo-Nagymaros Project case, in the context of the relationship between the law
of treaties and the law of responsibility. The law relating to the content and the
duration of substantive State obligations is as determined by the primary rules. The
law of State responsibility as articulated in the Draft Articles provides the
framework ⎯ those rules, denominated ‘secondary ’, which indicate the consequences
of a breach of an applicable primary oblig ation.” (James Crawford, The International
Law Commission’s Articles on State Responsibility, Cambridge, 2002, Introduction,
pp. 15-16.)
53. The legal consequence is that the principles advanced by Bosnia and Herzegovina are the
secondary principles and the provisions of the Genocide Convention are the primary principles.
Counsel for Bosnia and Herzegovina seek to use the secondary principles to invent, under a flag of
convenience, namely State responsibility, principles which Bosnia argues, form a part of the
Genocide Convention itself.
Some conclusions on the application of the Genocide Convention
54. It is now appropriate to summarize the ex traordinary legal constructions offered to the
Court by Bosnia and Herzegovina. The approach of counsel for Bosnia and Herzegovina to the
interpretation of the provisions of the Genocide Convention involves setting aside normal standards
of treaty interpretation and legality. ArticleIX is interpreted in isolation. The drafting history is
ignored. The evidence of contemporary and subseq uent doctrine is ignored. Secondary rules are
given priority over primary rules.
55. It is in any event the case that remedies are ancillary to the substantive provisions of an
agreement between States. Thus, for example, the question whether restitution is an available
remedy will depend upon the treaty provisions a nd will not, in the first place, depend upon the
mechanical application of the secondary rules of State responsibility. This will be the case more - 49 -
particularly when the drafting history reveals, as it does here, that the nature of the remedies has
been a major subject of contention among the Parties.
E. The principles of State responsibility: some specific issues
Introduction
56. In the light of the three previous presen tations, and as I draw toward the close of my
argument, it is necessary to return to the leading question of State responsibility and the provisions
of the Genocide Convention. The arguments of Bo snia and Herzegovina have been set forth at
length, and with some repetition, as follows in the second round (CR2006/31, paras.61-81
(Pellet); CR 2006/35, paras. 1-29 (Condorelli)).
57. The position of the applicant State can be summarized without much difficulty.
(1) On the assumption that Republika Srpska was an organ of the FRY at the material time, then
the FRY was responsible for breaches of the Conve ntion within the provisions of Article4 of
the ILC Articles.
(2) In the alternative, if the Court does not accep t that the Republika Srpska is an organ of the
FRY, then the FRY was responsible for the direction or control of the relevant conduct within
the provisions of Article 8 of the ILC Articles.
(3) In the further alternative, the Respondent is liable for complicity in genocide in accordance
with Article III (e) of the Genocide Convention.
58. In the oral argument my learned opponents have regarded complicity as the winning
argument and complain that I do not share their enthusiasm. But it must be clear from my general
position concerning the application of the Conven tion that the complicity argument has no legal
validity. Article III of the Convention is concerned with the conduct of individuals.
59. In any event, the reliance of Bosnia and Herzegovina upon the principles of State
responsibility is, as I have suggested, wholly misc onceived and this because the primary rules in
this case are set by express treaty provisions. Madam President, the secondary rules of State
responsibility cannot be employed as a replacement for the express primary rules of treaty
provisions. Articles4 and 8 of the ILC provisions simply do not form part of the Genocide
Convention. - 50 -
60. In this context, reference to Article III (e) of the Convention only serves to emphasize the
muddled analysis. With your permission, I shall explain why.
61. The question of complicity is dealt with in Article16 of the ILC Articles, and I will
quote, first the heading:
“Aid or assistance in the commission of an internationally wrongful act”
and, the provision
“A State which aids or assists another State in the commission of an
internationally wrongful act by the latter is internationally responsible for doing so if:
(a)that State does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) the act would be internationally wrongful if committed by that State.”
62. Now what is significant is the fact that most treaties do not have provisions dealing with
aid or assistance and reliance is instead placed upon the general principles of State responsibility.
The Genocide Convention, however, does have expre ss provisions on ancillary forms of genocide.
The reason for this is precisely the role which th e Convention has in formulating the definition of
the new crime for the purpose of sp elling out the obligation to legislate and to prevent and punish
genocide in the municipal courts of States parties to the Convention.
63. Madam President, it is thus an error to seek to invoke complicity by reference to
ArticleIII, while relying in other respects ab extra upon the Articles on State Responsibility
governing other topics. The explanation is that ArticleIII envisages the responsibility of
individuals, and does not relate to complicity in the context of State responsibility.
64. And it is necessary to emphasize, once more, that the Articles on State Responsibility are
not related to the crimes of a State but to attribution of the internationally wrongful act of a State.
65. The interest of Bosnia and Herzegovina is closely related to the issue of assistance given
by the FRY to the Republika Srpska. This assistan ce was lawful and the applicant State has not
been able to prove otherwise. Moreover, in this co nnection, the control test is to be applied in the
appropriate form. If I could remind the Court, the formulation in the Commentary of the
International Law Commission is as follows:
“It is clear then that a State may, either by specific directions or by exercising
control over a group, in effect assume res ponsibility for their conduct. Each case will - 51 -
depend on its own facts, in particular t hose concerning the relationship between the
instructions given or the directions or control exercised and the specific conduct
complained of [complained of]. In the text of article 8, the three terms ‘instructions’,
‘direction’, and ‘control’ are disjunctive; it is sufficient to establish any one of them.
At the same time it is made clear that the instructions, direction or control must relate
to the conduct which is said to have amounted to an internationally wrongful act.”
66. That is the end of the quotation from the official Commentary of the ILC, and it appears
as paragraph 7 of the Commentary to Article 8 of the ILC work, which Article has been repeatedly
invoked by my distinguished opponents.
67. I shall now turn to the specific issues ex amined by my colleagues yesterday and this
morning. The first topic dealt with was the role of the JNA in Bosnia and Herzegovina at the
beginning of 1992. Mr. Olujic has carefully explai ned to the Court the nature of the political and
military arrangements in Bosnia and Herzegovina in the period of the disintegration of the former
SFRY. His analysis ends with the establishment of the army of Republika Srpska and the changes
in the relationship with the Federal Republic of Yugoslavia which was established on
27 April 1992.
68. Mr. Olujic was followed by the Co-Agent , Mr. Obradovic, who presented the Court with
an analysis of the relationship between the Y ugoslav army and the army of Republika Srpska.
Mr.Obradovic demonstrated that the VRS was no t under the effective control of any organ of
Serbia and Montenegro.
69. And finally, Mr.Cvetkovic, also Co-Agent of Serbia and Montenegro, examined the
questions posed by the activities of the paramilita ry units. Mr. Cvetkovic and his colleagues have
provided the necessary correctives to the factual distortions and confusions contained in the
presentations of Bosnia and Herzegovina.
70. In approaching the subject-matter of Stat e responsibility in this case, the Court will no
doubt bear in mind that the exigencies of legal principle insisted upon by Professor Pellet and
Professor Condorelli are deeply flawed and question begging. The secondary rules of State
responsibility cannot be given priority over the primary rules of the Convention itself and the
interpretation and application of the Convention as such.
71. In this context it is to be emphasized that the Nicaragua case depended upon the causes
of action ⎯ causes of action with one exception based on the bilateral treaty ⎯ but the causes of
action based upon customary or general international law. In that context there were no primary - 52 -
rules set by treaty provisions. But even then th e Court applied the criterion of effective control
differently in the case of the causes of action not related to the humanitarian law of war. The test
of effective control was applied more stringently in the latter case. And, Madam President, it is
clear that in the present proceedings the analogue with the humanitarian law of war is genocide.
72. And overall the application of the principles of State responsibility is subject to the prior
determination of the Court on the interpretation of the Genocide Convention.
73. Madam President, there is one final point concerning the Convention. If the Convention
is applied on the basis that the provisions de fining acts of genocide can refer to the direct
responsibility of the State for the crime of genocide, then there are no clearly specified judicial
standards. No such standards are available. Article 8 of the ILC provisions is as follows:
“The conduct of a person or a group of pe rsons shall be considered an act of a
State under international law if the person or group of persons is in fact acting on the
instructions of, or under the direction and control of that State in carrying out the
conduct.”
74. But these provisions were not intended to apply to issues of criminal responsibility. In
the first round Professor Pellet accepted that th ere were serious difficulties in using such
formulations. And he admits that relating the specifics of the mens rea of genocide to the
modalities of attribution and control leads to serious problems (CR2006/10, paras.20-22). And
obviously, the ICTY material does not relate to the responsibility of States.
F. Further evidence of non-attribution
75. Madam President, I shall now move to the other topics on my agenda. It is obvious that
the question of attribution continues to divide th e Parties and it is necessary to remind the Court of
other evidence supporting the position that the FR Y authorities were not involved in decision
making in Republika Srpska. The relevant items are presented in chronological order.
First item: the conversation between Milosev ic and Karadzic in January 1992, concerning
the Babic’s refusal to accept the Vance Peace Plan
76. The transcript of this conversation is in the judges’ folder. The episode has been
examined carefully in my previous speech in this round. The relevance of this material for present - 53 -
purposes is that it demonstrates clearly that Milose vic was not able to control either Babic or
Karadzic.
Second item: debate in the National Assembly of Republika Srpska, on 5 and 6 May 1993
77. This is the significant debate in which Milosevic and other invited speakers failed to
persuade the National Assembly of Republika Sr pska to accept the Vance-Owen Peace Plan. The
Plan was rejected by 51 votes to none, with 21 abst entions. It was decided that the question of the
Peace Plan would be settled by a referendum on 15 and 16 May 1993. The episode is a dramatic
demonstration of the independence of Republika Srpska.
78. The transcript is included in the judges’ folder.
Third item: debate in the National Assembly of Republika Srpska held on
22 and 23 October 1995
79. This document is also in the judges’ folder. It contains a series of reports to the National
Assembly of the contacts between a delegation re presenting Republika Srpska and the Republic of
Serbia. The delegation had the status of a State and parliamentary delegation. The main item on
the agenda was the Dayton Peace Plan ⎯ this is in 1995. From the content of the document it is
clear that the negotiations were at arm’s length and involved two States.
Fourth item: the evidence of General Dannatt on 20 March 2006
80. General Dannatt’s evidence is in the transcript CR2006/23. The material relating to
imputability is at pages 40-46. The evidence gi ven at page 40 indicates that General Dannatt
accepted that the army of Republika Srpska was an entirely separate entity. The Court will also
wish to recall the answer General Dannatt gave in response to the President’s question at
CR2006/23, page 44. This answer was carefully qualified but General Dannatt did accept that
“day-to-day operational control” was exercised by General Mladic and the Main Staff of the VRS.
Fifth item: the evidence of General Rose on 24 March 2006
81. General Rose’s evidence appears in the transcript, CR2006/26. By way of preface I
would remind the Court that General Rose was a witness of fact, he had not been shown any - 54 -
documents, and he had not had a c ontractual relationship with the Office of the ICTY Prosecutor.
He thus gave his evidence in complete independence.
82. In his personal statement, General Rose had this to say:
“As a result of the work undertaken by the United Nations, I was often required
to travel to Pale, where Republika Srpska had its military and political headquarters,
and I was able to gain some impression as to how closely the political and military
operations of Republika Srpska were being eith er directly controlled or influenced by
Belgrade. And my impression was that it was not, on the military side, a formal
military command arrangement. They were not, in technical terms, under command,
but a great deal of influence was brought to bear and a great deal of consultation,
material support was provided and on on e or two notable occasions, actual military
support was deployed in support of Republik a Srpska from the former Republic of
Yugoslavia. So there was a link, but it was not formal. And of course on the political
side, again there were many occasions where one was able to achieve changes in the
political position of Mr.Karadži ć by bringing pressure to bear through the United
Nations or, indeed, sometimes through Russia, on Miloševi ć’s administration and
government, and that would then be translated, but never clearly done; it was always
a long process and often did not produce results. So, again, one’s impression was that
it was not a formal arrangement.” (CR 2006/26, pp. 11-12.)
83. There was a question and answer on the same subject, as follows:
“Mr.Brownlie: Thank you. Now if I can proceed with some more precise
questions. What is your opinion on the relation between the army of Republika
Srpska and the Yugoslav army in general?
General Rose: As I said in my openin g remarks, there was clear evidence of
liaison and, on two notable occasions, direct military support provided, but otherwise
my impression was that materiel support was being given in terms of fuel,
ammunition, reinforcements of soldiers bei ng recruited ‘voluntarily’ to fight for the
army of Republika Srpska in Serbia, but there was no formal military command
arrangement: they were not under tactical command, they were not under full
command, in a way that one would get in a coalition of forces.” (Ibid., p. 13.)
84. In addition there was a question on the same subject from Judge Owada:
“Judge Owada: The question is the following: if I understood you correctly,
and of course this was a verbal exchange, so I may not have grasped what you said
correctly, but my understanding was that you sai d to the effect that no formal military
command relationship existed between the army of Republika Srpska and the army of
Yugoslavia. Now, my question is whethe r that statement of yours was based on your
impression or your inference on the basis of some circumstantial factors that you
observed, or based on some concrete evidence?
General Rose: I fully understand that, Madam President. It was an inference
drawn from the impressions that I had gained during that time. There was no concrete
evidence one way or the other, but having lived in the military for the whole of my
career, I have an understanding of formal military command relationships and my
view was that they did not exist between those two organizations. (Ibid., p. 33.) - 55 -
The PRESIDENT: Mr. Brownlie, could I interrupt you? I am anxious that you may be
falling on the wrong side of the line of non-repetition, because of the manner in which you are
presenting it. You are fully entitled to remind us of wh at is to be particularly looked at in the CRs
and to summarize for us the points you get from those, but I see we do have quite a few pages more
of reading out again what had been said previously in the case.
Mr. BROWNLIE: Madam President, I think I can help you quite easily by leaving some of
the quotations from the witnesses in the transcript. So perhaps, if you agree, we can proceed in that
way. Thank you.
Sixth item: the evidence of Mr. Lukic on 23 March 2006
85. I would just remind you that the witness was from 20 January 1993 until 18 August 1994
the Prime Minister of the Republic of Srpska. In my submission his evidence calls for careful
reading, and what I consider to be the key passage will be in the transcript.
“Ever since its inception in 1992 Republik a Srpska, then under the name of the
Serbian Republic of Bosnia and Herzegovina , featured all elements of statehood
except for international recognition. Throughout its entire territory it had its bodies of
government, its national assembly, its government, its local and/or municipal bodies of
government, its judiciary, its health and e ducational systems. Also RepublikaSrpska
had its own banking and financ ial systems reflected in the existence of a national
bank, its own currency, budget, payment operation service. Republika Srpska also had
its army and police with a complete system of command and logistical support to
those structures. The statehood of Republik a Srpska was not disputable during the
conducting of numerous international negotia tions. Republika Srpska was recognized
also through the Washington Croat and Muslim Agreements and received final
recognition under the Dayton Paris Peace Accords.” (CR 2006/24, p. 12.)
Seventh item: the evidence of Mr. Popovic on 23 March 2006
86. This is the transcript of CR2006/25, and I would be happy to leave the key passage in
the transcript.
“From 20 January 1993 to 18August1994, I was Deputy Prime Minister of
Republika Srpska in charge of internal affair s. My chief task was to co-ordinate the
work of several ministries, including the Mi nistries of Justice, Education, Science and
Culture, and Religion. Being a professor of international law, I was also intensively
involved in the harmonization of the legi slation of Republika Srpska with the
European Union. During my time in office and later, the Government of Republika
Srpska was completely independent in d ecision making and the implementation of its
decisions. And it maintained partnershi p relations with other governments and
institutions. It is my opinion that we contro lled the overall situation in that period to
the greatest extent possible, even the circum stances of war, and that we created the - 56 -
necessary conditions for the preservation of our territory, people and army. The
Government maintained partnership relati ons with the Governments of Serbia and
Montenegro, the Republic of Serb Kra jina, Herceg-Bosna and the Autonomous
Republic of Western Bosnia.” (CR 2006/25, pp. 10-11.)
87. Mr.Popovic also gives a clear account of the response of his Government to the
Vance-Owen Peace Plan.
Eight item: the evidence of Mr. Mihajlovic on 27 March 2006
88. Тhe evidence appears in CR 2006/27, and there I quote two questions and answers from
the transcript, and they will be part of the transcript of today’s hearing.
89. The first exchange was as follows.
“Mr.Brownlie: Thank you very much Mr.Mihajlovic, could I ask you just to
remind the Court which periods you formed part of the Government; those periods
when you held government office?
MMir.ajlovi ć [interpretation from Serbian] : I was the Vice-President of the
Republican Government twice: the first time from the end of 1989 until the end of
1990 and the second time from the year 2001 until 2003. Otherwise the political party
that I was President of, New Democracy, formed part of the Government from 1993 to
1997, but I personally held no office in that Government in that period.”
(CR 2006/27, p. 14.)
90. And the second question and answer now follows:
“Mr.Brownlie: I do have one or two questions. First of all, Mr.Mihajlovi ć,
can you confirm to the Court that decision making in Republika Srpska, both political
and military, was independent of decision making in Belgrade?
MMir.ajlovi ć [interpretation from Serbian] : It was general knowledge that
the Serbs in Bosnia and Herzegovina had thei r authentic political parties, State organs
and army and all their decisions were au tonomous, as I have already said, and
independent of Belgrade, in fact, often cont rary to decisions taken in Belgrade and
often in opposition to the positions of both Miloševi ć and of Dobrica Ćosić, the latter
being an even greater authority among the Se rbian people there. I believe that that
story is associated with these volunteers whotook part in the conflict in Bosnia and
Herzegovina and who came from Serbia. In that connection I can say the following:
that it is general knowledge that Serbs and Mu slims lived together side by side in the
former Socialist Federal Repub lic of Yugoslavia and that they both were constituent
peoples in Bosnia and Herzegovina in their joint republic. And, when the civil war
broke out, after the secession of Bosnia and Herzegovina from Yugoslavia, contrary to
the will and without any say on the part of the Serbs there, who wanted Bosnia and
Herzegovina to remain part of Yugoslavi a, there was no preventing the Serbs in
Serbia, hailing from Bosnia and Herzegovina, from coming to the assistance of their
brethren in Bosnia and Herzegovina.” (Ibid., pp. 25-26.)
This concludes my presentation of the furthe r evidence supporting the position that the FRY
authorities were not involved in decision making in the Republika Srpska. - 57 -
G. The declaration of the Council of Ministers dated 15 June 2005
91. On that date the Council of Ministers of Serbia and Montenegro issued a statement as
follows:
“Those who committed the killings in Srebrenica, as well as those who ordered
and organized that massacre represented neither Serbia nor Montenegro, but an
undemocratic regime of terror and death, against whom the great majority of citizens
of Serbia and Montenegro put up the strongest resistance.
Our condemnation of crimes in Srebrenica does not end with the direct
perpetrators. We demand the criminal responsibility of all who committed war
crimes, organized them or ordered them, and not only in Srebrenica.
Criminals must not be heroes. Any protection of the war criminals, for
whatever reason, is also a crime.”
92. Professor Condorelli has argued at great lengt h that this statement constitutes a legally
binding recognition of the responsibility of Serbia and Montenegro as a State entity, for the crime
of genocide (CR 2006/11, paras. 1-17).
93. In the first place, the wording of the st atement refers unambiguously to the responsibility
of individuals. There is no reference to the comm ission of genocide in any case. The indictments
subsequently implemented related to individuals a nd to proceedings in the courts of Serbia. The
precedent derived from the Nicaragua case is unimpressive. In that case the declarations
concerned involved the specific context of procedur e and law. The context of the statement in
question was primarily political. In so far as it was legal, the context concerned the imminent use
of the courts of Serbia and Montenegro to do justice.
94. In addition, the context involved contempor ary reactions to the Scorpions video and the
murders in Srebrenica. That is why the reference in the document is to “war crimes”.
95. There is one final point to be made by way of emphasis. Professor Condorelli alleges
that the statement recognizes that it was the Government of the Yugoslav State which was
responsible for organizing and executing the crime. Madam President, it does no such thing.
96. Incidentally, and this has already been poi nted out this morning, Mr. van den Biesen has
asserted that the commander of the group of sc orpions has not been indicted (CR2006/30,
para. 11). My instructions are that that assertion has no basis in fact. - 58 -
H. The alleged plan or plans to commit genocide
97. The applicant State has at no stage succeeded in proving the existence of a plan. In the
first round the position of Bosnia and Herzegovina was analysed on behalf of the Respondent. The
conclusion reached was that the evidence presented which purports to relate to one or more plans is
incoherent, vague and, in the final analysis, a fiction (CR 2006/21, paras. 1-12).
98. In the second round speeches the opening pr esentation of Mr.Van denBiesen gives no
description of a plan –– and this in a very lengthy presentation (CR 2006/30, paras. 1-66). All that
can be seen are some references to a “Greater Serbia” policy –– for example at paragraph 30.
99. Later on, Mr.van denBiesen makes an effort to bring back the “RAM” plan
(CR 2006/34, pp. 36-37, paras. 23-26), but he does not offer any new evidence on the existence of
this purported plan. The former Prime Minist er of the SFRY, to whom Mr.van denBiesen
referred, did not confirm the existence of the pl an. What Mr.Markovic did, as a witness of the
ICTY Prosecutor, was merely to recognize the voices of Mr.Milosevic and Mr.Karadzic on the
tape that was played to him.
100. In the second round speech of MsKaragiannakis there can be found what is a virtual
abandonment of the hypothesis of a plan. Ms Kara giannakis first of all quotes from my speech in
the first round. She states that:
“67. Mr. Brownlie denied that there was any plan, arguing: ‘the existence of a
definitive plan, providing a political chart of some kind, is seen not to be a part of the
picture’. If we have appreciated this argument correctly, the Respondent’s position is
that if you don’t have a piece of paper se tting out the plan in terms, and containing a
political chart, then you cannot infer that genocide was committed. This approach
must be rejected both legally and factually.” (CR 2006/32, p. 61, para. 67.)
101. In my submission this distorts the Res pondent’s position somewhat. If the term “plan”
is used it is reasonable to expect that it would be expressed in some form, either in writing or, for
example, in the form of an intercepted telephone conversation. Counsel for Bosnia then continues:
“68. First, the existence of a written plan is not a legal ingredient of the crime of
genocide. Secondly, and notwithstanding this, in the case of Srebrenica a policy and a
plan did exist. The Court is entitled to find and ought to find that there was a
long-standing policy to ethnically cleanse eastern Bosnia and Srebrenica, in particular.
The killings and expulsions were committed in furtherance of that policy and pursuant
to a plan to kill the men and boys and expe l the remainder of the Muslim population.
The Court should make this finding on the basis of the uncontested facts that were
presented at the commencement of these pleadings and the relevant factual findings
surrounding the crimes themselves as set out in the United Nations sources and in
particular the findings of the ICTY.” (CR 2006/32, para. 68.) - 59 -
102. This convoluted reasoning has several implications.
First: there is still no evidence of a plan to commit genocide, as alleged by the applicant
State, existing since 1991.
And secondly: according to counsel for Bosnia, the Court has a duty to find the existence of
a policy: this reasoning necessarily involves the abandonment of the hypothesis of a plan.
103. In conclusion, counsel for Serbia and M ontenegro finds it surprising that the important
allegation of the making of a plan to commit genoc ide should be the subject of such a superficial
forensic effort.
I. Provisional measures of protection
104. In the first round I responded to Professor Pellet’s submissions on this topic as fully as
possible (CR2006/21, paras1 . -9). ProfessorPellet responded on 18April (CR2006/31,
paras.25-27). From these presentations it is clear that in this connection the Parties are divided
both on the facts and on the law. In other words, the issues have been joined.
105. Incidentally, Professor Pellet states that he does not understand the concept of “cause of
action”, but this is rather evasive. It is also recognized in interna tional law as the basis of claim.
And the fact remains that in its jurisprudence the Court has not yet examined the precise issue
raised on behalf of the respondent State.
J. The duty to prevent and punish
106. The position of the respondent State on th is aspect of the case has been explained fully
in the first round. In the second round, ProfessorCondorelli has presented the arguments of the
applicant State at some length (CR 2006/34, paras. 7-26). The positions of the two Parties are not
only divided on this group of issues, but are completely at a tangent.
107. In the first place, the relevance of the subject is contingent upon the determination of
breaches of the Convention on the part of individuals.
108. In the second place, the relevance of the subject is contingent upon the determination by
the Court of certain other questions concerni ng the interpretation and application of the
Convention. - 60 -
109. In the third place, the relevance of the s ubject is contingent upon the determination of
the status of Republika Srpska and the presentati on of ProfessorCondorelli makes this absolutely
clear (see CR 2006/34, para. 11).
110. Finally, ProfessorCondorelli provides his views on various issues of State
responsibility which are already at issue in the case.
C ONCLUDING OBSERVATIONS
111. Madam President, I have now reached my concluding observations. These inevitably
reflect the extraordinary aspects of these proceedings.
112. The first extraordinary feature is the we akness of the Applicant’s evidence on the issue
of attribution. This weakness is manifested in many ways. On the key question of command and
control, the military expert called by the applicant State did not confirm that the command structure
of the army of Republika Srpska ended in Belgra de or that orders were issued directly from
Belgrade. But there are other weaknesses.
113. There was the use of General Dannatt to present 23documents, some of which had
originally been submitted with the bundle of 76 doc uments on 16 January. Madam President, it is
reasonable to assume that these two sets of documents, presented at a relatively late stage,
constituted the very best of the documentary collec tion of the applicant State. But no conclusive
evidence of the effective control of Republika Srpska by the FRY was presented.
114. And the issue of effective control, though the subject of much argument, is not helpful
to the applicant State. In the first place, ther e is a great deal of concordant evidence from
independent sources which confirms the independence of Republika Srps ka in the relevant period.
And, in the second place, there is the decision in the Nicaragua case. This has not been adequately
explained to the Court by our opponents. And, as I pointed out already, the key point is that the
Court applied the criterion of effective control differently in the case of the causes of action not
related to the humanitarian law of war, such as the breaches of the principle of non-intervention.
The test of effective control was applied more stringently in the case of breaches of the laws of
war; and it must be clear that such stringency would apply, and would apply a fortiori, in a case of
alleged genocide. - 61 -
115. I shall now revert to the idiosyncratic practices of our opponents in matters of evidence.
The presentation of documents is unusual, to say the least, and in my first speech this round I
provided some examples. The applicant State clea rly has a strong aversion to the context of most
documents, including the specific context of the statement quoted. Our opponents suffer from a
forensic condition, the context aversion syndrome.
116. Madam President, this aversion to contex t extends unfortunately to the historical
background of recent events and, in consequence, significant elements of causation are excised
from the picture. As a result, important evidence ha s not been submitted to the Court. This is true
of Srebrenica. For the applicant State this is the paradigm case of genocide. And if that is so, why
have our opponents been so reluctant to give the Court the historical background?
117. This aversion to context, in this case histor ical context, is illustrated by the refusal to
recognize the evidence of the raids by Naser Oric on Serb villages and the accumulated hatred
which was caused. The many observers of these facts include General Morillon, the Commander
of the French-United Nations units in Bosnia a nd Herzegovina. In his evidence at the Milosevic
trial, he confirmed “the terrible massacres committed by the forces of Naser Oric in all the
surrounding villages” (Milosevic trial, transcript, pp. 32031-32032).
118. And, Madam President, the point about th e raids and the local feuds between the two
armed forces is very relevant to the issue of attribution. The processes of cause and effect were
local in every sense. External decision making could have had no role.
119. I move now to another example of the significance of the historical background and
local knowledge thereof. In my earlier presentation I referred to the letter from the people of
Kupres to the Ministry of Defence in Belg rade requesting military protection and dated
22 January 1992.
120. This letter refers expressly to the da ngers of genocide aimed at Serbian communities
and refers expressly to the events in the region during the Second World War. This document was
not taken seriously by our opponents although it was printed in their Reply (see CR2006/34,
para.14 (Dauban)). In fact only ten weeks afte r that letter was sent Croat Muslim armed units,
wearing Ustasha insignia, committed crimes agains t Serb civilians in the area (Counter-Memorial ,
pp.447-454, 973-975 (Kupres)). Madam Pres ident, the Second World War background makes a - 62 -
parenthesis necessary. The Kupres region includes the commune of Livno. In the territory of
Livno there were pits into which the bodies of Serbs had been thrown during the Second World
War. Atrocities against Serb ci vilians increased after 27 April 1992. In particular, the Serb
Memorial to the victims of Ustasha who were killed during the Second World War was blown up.
At least 150 Serb civilians were killed and th eir bodies thrown into pits (Counter-Memorial,
pp.457-459, 994-995 (Livno)). And thus, Madam President, the historical background involved
real dangers and constituted evidence of significant causal links within the region concerned. Such
dangers and concerns we re indigenous. The letter of 22 Ja nuary 1992 unfortunately concerned
imminent dangers.
121. And, finally, there is the insistence by our opponents in caricaturing the content of the
Genocide Convention. This policy of distortion ari ses from two sources. First, the refusal to take
the drafting history seriously and, secondly, the un fortunate confusion relating to the distinction
between primary and secondary rules ⎯ this in the situation where the primary rules are in a treaty
instrument. This confusion certainly illustrates the dangers of referring to Don Quixote.
122. As I conclude my second speech, I would like to acknowledge once again the
significant assistance received fro m colleagues in the delegation of Serbia and Montenegro. If I
may thank the Court for your customary patience and consideration. Thank you.
The PRESIDENT: Thank you, Mr. Brownlie. I understand that that will be the end for this
morning of the submissions of Serbia and Mont enegro. JudgeTomka has a question which he
wishes to put to the Respondents. And I call upon Judge Tomka.
Judge TOMKA: Thank you, Madam President. The question is as follows: has the Federal
Republic of Yugoslavia (Serbia and Montenegro ) deposited with deposita ries of multilateral
conventions an instrument of its accession to any other multilateral convention, in addition to the
1948 Genocide Convention, to which the Socialist Fe deral Republic of Yugoslavia was a party as
of 27April1992? In the affirmative, c ould Serbia and Montenegro provide a list ⎯ or, at least,
examples ⎯ of such conventions? Thank you, Madam President. - 63 -
The PRESIDENT: Thank you. The reply to that question may be given either orally or in
writing by Friday 12 May. The Court now rises.
The Court rose at 12.55 p.m.
___________
Public sitting held on Wednesday 3 May 2006, at 10 a.m., at the Peace Palace, President Higgins presiding