Public sitting held on Tuesday 2 May 2006, at 3 p.m., at the Peace Palace, President Higgins presiding

Document Number
091-20060502-ORA-02-00-BI
Document Type
Number (Press Release, Order, etc)
2006/39
Date of the Document
Bilingual Document File
Bilingual Content

CR 2006/39

International Court Cour internationale
of Justice de Justice

THHEAGUE LAAYE

YEAR 2006

Public sitting

held on Tuesday 2 May 2006, at 3 p.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 mardi 2 mai 2006, à 15 heures, au Palais de la Paix,

sous la présidence de Mme Higgins, président,

en l’affaire relative à l’Application de la convention pour la prévention et la répression du
crime de génocide (Bosnie-Herzégovine c. Serbie-et-Monténégro)

____________________

COMPTE RENDU

____________________ - 2 -

Present: Presieitgins
Vice-Presi-Kntasawneh

Ranjevaudges
Shi
Koroma
Owada

Simma
Tomka
Abraham
Keith

Sepúlveda
Bennouna
Skotnikov
Judges ad hoc Mahiou

Kre ća

Couvgisrar

⎯⎯⎯⎯⎯⎯ - 3 -

Présents : Mme Higgins,président
Al-K.vsce-prh,ident

RaMjev.
Shi
Koroma
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. Judge Parra-Aranguren, for reasons explained to me, is

not able to sit with us this afternoon. Mr. Brownlie, you have the floor.

Mr. BROWNLIE: Thank you, Madam President. I have one correction to make. Before the

short adjournment I dealt with a conversation betw een Karadzic and Dogo and I am fairly certain I

described Dogo as a political friend of Karadzic. I no w have instructions on that point. They were

friends but they were both poetical friends, in case that is of interest to the Court. They were not

political friends but they were friends because they were both poets.

(d)Karadzic speech, Bosnian Assembly,14 October 1991

101. I move now to another speech ⎯ a speech, not a conversation –– by Karadzic, which is

a further example of text without context and it is provided by the quotation used by our opponents

from the speech of Karadzic in the Bosnian Assembly on 14 October 1991. And this is the passage

as quoted by counsel for Bosnia in the first round:

“This is what Karadzic said when he addressed for the last time the Bosnian
Parliament on 14 October 1991 ⎯ and he talked to the Bo sniacs, he talked expressly
to Mr. Izetbegovic, who was President [and then Karadzic is quoted]:

‘You want to take Bosnia and Herzegovina down the same
highway of hell and suffering that Slovenia and Croatia are travelling. Be
careful. Do nothing that will lead Bosnia to hell and do nothing that may

lead the Muslim people to their annihilation, because the Muslims cannot
defend themselves if there is war. How will you prevent everyone from
being killed in Bosnia?’” (CR 2006/2, p. 37.)

102. Madam President, these words were used by Karadzic in the last session of the former

Bosnia and Herzegovina Assembly on 14 Oct ober 1991. The session included MPs from the three

major national parties in Bosnia and Herzegovina: the SDA, that is the Bosniaks; the HDZ, the

Croats; and the SDS, the Serbs. The main i ssue in the debate was the question of holding a

referendum on the independence of Bosnia and Herzegovina.

103. The position of the Serb group was that th e future of Bosnia and Herzegovina could not

be determined simply on the basis of a refere ndum of citizens, but on the basis of a separate

referendum for each constituent national group: Serb s, Muslims and Croats. At one stage in the - 11 -

heated debate Karadzic tried to explain the opposition of the Serbs to a referendum and the possible

disastrous consequences. What Karadzic actually said was this:

“I beg you once again, I’m not threatening you, I’m begging you, to understand
seriously political will of the Serbian people which Serbian Democratic Party and

Serbian Renew Movement, and by my opi nion and Serb MPs from other parties
represent. [This is as it is recorded.] I beg you to understand seriously it is not good
what you are doing. [And having said all that, he then says] You want to take Bosnia
and Herzegovina down the same highway of hell and suffering that Slovenia and

Croatia are travelling. Be careful. Do no thing that will lead Bosnia to hell and do
nothing that may lead the Muslim people to their annihilation, because the Muslims
cannot defend themselves if there is war. How will you prevent everyone from being
killed in Bosnia?” (ICTY, Prosecutor v. Mladic and Karadzic, Exhibit 29, Clip 1.)

104. So, it is not quite the same tone as we were given to understand. And the truncated

version of this quotation was repeated in the second round opening speech by Mr. van den Biesen

(CR 2006/30, pp. 37 and 39).

(e) Conversation between Milosević and Karadzić on 24 October 1991

105. My learned opponents have also re lied upon a conversation between Milosevi ć and

Karadzić on 24 October 1991. Thus, in the first rou nd, Ms Karagiannakis quoted an edited version

of a series of statements made by Karadzić in response to a general question from Milosević.

106. In her speech Ms Karagiannakis stated that:

K25r.adzi ć was advising the President of Serbia about what he and the

Bosnian Serbs were doing through the SDS part y. In one important conversation held
on 24 October 1991, the day that the Separate Bosnian Serb Assembly was founded,
Milosević asked Karadzić as to how the work was going. Karadzi ć replied that it was
‘going slowly’. He went on to make a number of statements to Milosevi ć during the

conversation.”

We then have what is in fact a structure, a construction of small quotes put together, and I am

reading them. This is what is quoted by Ms Karagiannakis:

“We will establish Yugoslavia in all the areas where we live... Yes, yes,
President, we hold power in 37 municipalities and have a relative majority in . . . about
ten municipalities... tell him [that is Izetbegović] that Karadzić and the others will

not give up on establishing an assembly and pa rallel organs of authority, . . . We will
establish full authority over the Serbian te rritories in Bosnia and Herzegovina and
none of his lawyers will be . . . able to show his nose there.

He will not be able to exercise power. He will not have control over 65 per cent
of his territory. This is our goal.

Our steps are calculated and we have to establish authority and control over our

territories, so that he doesn’t get his sovereign Bosnia.” (CR 2006/4, p. 16, para. 25.) - 12 -

That is the end of the quotation from the Karadzic part of the conversation as reported by counsel

for Bosnia.

107. As introduced in the pleading of MsKa ragiannakis this conversation has an almost

constitutive effect. But, if the intercept is read as a whole, this is clearly not the case. And, in any

event, at this stage of the crisis it would have been difficult to know what options were actually

available. The context was the progre ss of political contacts between Izetbegovi ć and Milosević.

Far from indicating any unilateral Serb plan, Milosevi ć and others were engaged in trying to solve

the crisis relating to certain very recent events . In the first place, on 14 October 1991, in the

absence of the Serbian members, the Parliament of Bosnia and Herzegovina had decided in favour

of a referendum for independence. This m ove provoked the Serbian members to leave the

Parliament. On 24 October 1991, ten days later, the first Serb Parliament of Bosnia and

Herzegovina was held.

108. These facts constitute the elements n ecessary for an understanding of this telephone

conversation. Milosevi ć was requesting Karadzi ć to meet Izetbegovi ć in order to deal with the

crisis presented by the plan for a referendum. Moreover, the general attitude of Milosević involved

a preference for the maintenance of a Yugoslav st yle of political structure, which would include

Muslims.

109. The conversation indicates that Milosevi ć hopes that Izetbegovi ć would withdraw the

referendum, and Milosevi ć is concerned with suggestions th at the Serbs should take illegal

initiatives. The conversation militates against the view that the Serbian leadership were looking for

excuses to engineer a fragmentation of Bosnia and Herzegovina.

110. Madam President, I will now present the conversational exchanges as they actually took

place. Ms Karagiannakis has used two forms of abbreviation. In the first place, as she makes clear,

the quotations are only of statements by Karadzi ć. The responses of Milosevi ć are not included.

And in the second place, the statements made by Karadzić have, in some cases, been abbreviated.

111. The record will contain the precise form of the exchanges based upon the collage of

fragments provided in the speech of MsKaragianna kis. The intercept in relevant parts is as

follows: - 13 -

“Rado varnadži ć: They think they’re doing it legally, but we will respond
with all means possible. We will establish Yugoslavia in all the areas where we live .

We have a Constitution, if they abolish their Bosnia and Herzegovina Constitution,
we’ll rely . . . [unknown term], and I mean the Federal Constitution.

SloboMdioševi ć: Yes, yes, but they’re not foolish enough to continue in

that direction.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

RadoKvaaadži ć: Yes, yes, President, we hold power in 37 municipalities and
have a relative majority in several others, in about ten municipalities and we refuse to
implement any of their decisions, they are, they are very slowly, but surely, leading us,
because of the fact that we adhere to le gality, they are leading us into secession and

out of Yugoslavia.

SloboMdioševi ć: They’re not taking you anywhere, it’s just that I would
hold back a little on that, that definition of the assembly, I wouldn’t define the

assembly that way because it will be just as illegal as their, as their session these
two . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

RadoKvaradži ć: You can talk to him, tell him that Karadži ć and the others
will not give up on establishing an Assem bly and parallel organs of authority , we, we
will recognise this government as the fe deral Bosnia and Herzegovina government,

but we have, we will go on to organise our own authorities, wherever the existing
legal one is, where this one is legal, excep t that it will primarily respect the Federal
Constitution, and the Bosnian, I mean the Serbian Assembly, will decide on what is to
be respected and what is not.

SloboMdioševi ć: I wouldn’t, I wouldn’t call, it’s just that I wouldn’t call
the assembly that. I just wouldn’t call it that.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

RadoKvaradži ć: You tell him that the Serbs are moving on, that you can’t,
that you can’t exert influence over us to mellow things down. We are moving on. We
will establish full authority over the Serbian territories in Bosnia and Herzegovina

and none of his lawyers will, will be able to show his nose there. He will not be able
to exercise power. He will not have control over 65% of his territory. That is our
goal.

SloboMdioševi ć: It would be better if you said it, if you told him, about the
illegality of his decisions, and that they are not being adhered to since they are illegal,
that the Constitution of Yugoslavia is being adhered to. Not to make it into something
institutional.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

RadoKvaradži ć: No we’re not excited at all. Our steps are calculated and

we have to establish authority and control over our territories, so that he doesn’t
get/his/sovereign Bosnia. Croatia doesn’t have contro l over 30% of its territory, and
Bosnia will not have control over 60% of its territory! - 14 -

Slobodaioševi ć: Look, we’ll talk later, afte r I have talked with him, and
then we’ll see how things are going . . .”

Madam President, the references throughout to the third party, to him, are to Mr. Izetbegović.

112. The words in the Karadzi ć sentences which appear in the composite quotation of

fragments produced by counsel have been emphasized.

113. Madam President, it is, of course, desirable that the conversation be read in its original

form. The context is the possibility of a political settlement with Izetbegović, who is the third party

referred to by the pronoun. The main theme is th e implementation of a plan to maintain some

version of Yugoslavia, which would include Bosn ia and Herzegovina, and would therefore include

Muslim communities. The theme of the exchange s bears no relation of any kind to the topic of

discussion as indicated by MsKaragiannakis at the beginning of her speech. The topic of

discussion was alleged to be preparation for violence and the achievement of a Greater Serbia. The

true topic of discussion was the preferred mode of responding to the policies adopted by

Mr. Izetbegović.

C. Other items of evidence relied upon by the applicant State

(a) Instructions for the organization and activity of organs of the Serbian people in Bosnia and
Herzegovina in extraordinary circumstances (19 December 1991)

114. These instructions were issued by th e Serbian Democratic Party of Bosnia and

Herzegovina, based in Sarajevo, and dated 19 D ecember 1991. Their purpose is clear enough but

counsel for Bosnia suggests that they were part of the preparations for ethnic cleansing (see

CR 2006/4, pp. 16-17, paras. 27-29 (Karagiannakis)). As the chronology of events, as reported by

counsel for Bosnia, makes clear, the instructions formed a part of the reaction of the Bosnian Serbs

to political developments in the Assembly of Bosnia and Herzegovina.

115. If the text is studied, it is clear thate measures are reactive to events. The overall

purpose is to protect the Serbian communities in Bosnia in a time of crisis. The document contains

no reference to a Greater Serbia. - 15 -

(b) The strategic goals for the Serbian people (Assemb ly of the Republika Srpska) (decision of
12 May 1992)

116. Counsel for Bosnia and Herzegovina have sought to give significance to the decision of

the Republika Srpska on 12 May 1992 concerning th e Strategic Goals of the Serbian People in

Bosnia and Herzegovina. The formal decision appears in the Official Gazette as follows:

“D ECISION ON THE STRATEGIC GOALS OF THE S ERBIAN PEOPLE
INB OSNIA AND HERZEGOVINA

The Strategic Goals, i.e., the priorites, of the Serbian people in Bosnia and
Herzegovina are:

1. Separation as a state from the other two ethnic communities.

2. A corridor between Semberija and Krajina.

3. The establishment of a corridor in the Drina River valley, i.e., the elimination of

the border between Serbian states.

4. The establishment of a border on the Una and Neretva rivers.

5. The division of the city of Sarajevo into a Serbian part and a Muslim part, and the
establishment of effective state authorities within each part.

6. An outlet to the sea for the Republika Srpska.”

117. The Strategic Goals are treated as evidence of preparation for ethnic cleansing by our

opponents (see CR 2006/4, pp. 18-19, paras. 36-37 (Karagiannakis)).

118. As in other cases, so here, the mate rials proffered by our opponents are presented

without any context, without any attempt to estab lish the causal sequence of events. The Bosnian

Serb leader explains the background of the Strate gic Goals in his speech on 12 May 1992. In his

words:

“We did everything to avoid war, and when it did break out, for it to stop and
for peace to be established, which would make a political solution possible. The

cease-fire, or truce, has each time been violated first and foremost by Muslim forces in
Sarajevo and Croatian forces in Posavina, where the war has never stopped, as well as
in the Neretva valley, where we believe that the Croatian goal is the conquest of
territory and establishment of the situation on the ground and the borders, which will,

in their opinion, sooner or later be reco gnized, while the Muslims actually violate the
truce in order to suspend, or sabotage, the Conference on Bosnia and Herzegovina,
where they are losing, their concept is losing, the unjust concept which implies
domination of the Serbs. We announced last night, and today, that if this Assembly so

decides, we shall announce a unilateral cease-fire for a certain period, and we shall not
respond except in cases of the utmost necessity, that is, utmost jeopardy, in order to
show the world and Europe, although Europe knows very well the whole truth about
these events, that we are not belligerent and that we are not instigating the war or

violating the cease-fire. Of course, a un ilateral cease-fire can only last until the - 16 -

moment when we are actually threatened and must defend ourselves. We believe that
we are on the right path. It would be much better to solve this situation by political

means. It would be best if a truce could be established right away and the borders set
up, even if we lose something, in a ma nner the European Co mmunity proposes and
finds in conjunction with the three national communities.” (Minutes.)

119. This does not sound like a speech of a man who had a genocidal intent. It is against this

background that Karadzić discusses the Strategic Goals presented to the Assembly. His comments

on the first four goals are of particular significance. He said:

“The Serbian side in Bosnia and Herz egovina, the Presidency, the Government,
the Council for National Security which we have set up have formulated strategic
priorities, that is to say, the strategic goals for the Serbian people. The first such goal

is separation from the other two national communities ⎯ separation of states.

Separation from those who are our enemies and who have used every
opportunity, especially in this century, to attack us, and who would continue with such

practices if we were to continue to stay together in the same state.

The second strategic goal, it seems to me , is a corridor between Semberija and
Krajina. That is something for which we may be forced to sacrifice something here

and there, but it is of the utmost strategic importance for the Serbian people, because it
integrates the Serbian lands, not only of Serbian Bosnia and Herzegovina, but/it
integrates/Serbian Bosnia and Herzegovina with Serbian Krajina and Serbian Krajina
with Serbian Bosnia and Herz egovina and Serbia. So, that is a strategic goal which

has been placed high on the priority list, wh ich we have to achieve because Krajina,
Bosnian Krajina, Serbian Krajina, or the alliance of Serbian states is not feasible if we
fail to secure that corridor, which will inte grate us, which will provide us unimpeded
flow from one part of our state to another.

The third strategic goal is to establish a corridor in the Drina Valley, that is,
elimination of the Drina as the border be tween two worlds. We and our strategic
interest and our living space are both sides of the Drina. We now see a possibility for

some Muslim municipalities to be set up along the Drina as enclaves, in order for them
to achieve their rights, but it must basically belong to Serbian Bosnia and
Herzegovina, that belt along the Drina which, as much as it is strategically useful for
us in a positive way, helps us by damaging the interests of our enemy to achieve their

goal of gaining a corridor which would connect them to the Muslim International and
render this area permanently unstable.

The fourth strategic goal is establishment of the border on the Una and Neretva

rivers. On their working maps proposed at the last session, the European Community
recognised the border on the Una. They marked the Una as our war-time border, and
painted blue everything east of it.” (Minutes.)

120. The Strategic Goals, and the problems to which they relate, involve the public response

of the Serbs in Bosnia to the cr isis as it was early in 1992. Th e Strategic Goals were home-grown

and their content reflects the issues which were th e subject of international diplomacy at the time

and which remained in issue until the Dayton conf erence. These goals will be further discussed by

my colleagues Mr. de Roux and Ms Fauveau-Ivanovic. - 17 -

(c) Analysis of the combat readiness and activities of the army of Republika Srpska in 1992

121. This document was included in the documents submitted by the applicant State on

16 January this year and it also formed part of the contingent of documents presented in connection

with the testimony of General Dannatt. This item forms Exhibit P2419 in the Brdjanin case.

122. The document consists of a report produced by the Main Staff of the army of the

Republika Srpska, is dated April 1993, and is 164 pages in length. The Analysis is regarded as of

particular significance by the applicant St ate. Thus, in his opening presentation,

Mr. van den Biesen made the following assertions:

“66. Earlier, two years before, in April 1993, Mladi ć presented the so-called

‘Analysis of the Combat Readiness Report of the VRS in 1992’ to the Republika
Srpska Assembly. In this report the leve l of so-called support given to the VRS in
1992 is discussed in more detail. It is a peculiar document and we will come back to
that later. This is what Mladi ć stipulates in the introduction to his report on the year

1992: ‘We have carried out individual and concerted battle operations according to a
single design and plan.’

67. Indeed, Madam President, everything went according to a single plan. The

pattern described earlier was, indeed, con tinued throughout 1992 and after 1993, for
that matter. The ‘plan’ that Mladi ć refers to, was most certainly not a plan which the
leaders of the self-proclaimed Republika Srps ka at the time designed on the day that
they proclaimed the ‘independent Republic’, and it was not a plan that the Republika

Srpska leadership only began to draft on 20May1992, the day after the so-called
‘withdrawal’ of the JNA. This plan simply refers to something which formed the
guideline for Belgrade’s policies already fo r quite some time, which policies were
from May and June 1992 onwards very much implemented by the Pale leadership.

This guideline fits the Greater Serbia plan and the strategies to be employed in order
to achieve the goal thereof.”

123. This document was also given prominence in the examination of General Dannatt

(CR 2006/23, pp. 24-27).

124. Madam President, the text of the Analysis does not provide any support to

Mr.vandenBiesen’s intimations. In the firs t place his short quotation from page7 of the

document is truncated. He quotes the sentence in the form: “We have carried out individual and

concerted battle operations according to a single d esign and plan.” In fact the sentence does not

finish at that point.

125. Madam President, it would be appropriate if I can quote the context more fully. The

Analysis, the document, at this point reads as follows:

“We have carried out individual and c oncerted battle operations according to a
single design and plan, entrusting subordinate commands with detailed or overall
missions, as appropriate. The temporary grouping of forces of the Army of Republika - 18 -

Srpska into operational groups, tactical gr oups and combat groups, is widely applied
in our theatre of war, but the main orienta tion has always been to carry out operations

according to an overall plan. In so doing we grouped various combat arms together
over a period of time in the pursuit of a single goal.

During the past year, the Army of Republika Srpska has been under a single

control and command structure, despite the fact that initially we had a large number of
different armies and paramilitary formations . This unity has been attained by
following well-known principles, such as: unity, continuity, flexibility, efficiency,
operationability and security, with subo rdination and a single command having a

crucial bearing on relations in the control and command process.

By applying scientific analytical methods, the Main Staff of the Army of
Republika Srpska has drawn lessons from previous operations, battles and

engagements, and sought to eliminate weaknesses while incorporating positive
experiences into new directives, commands and orders. We assess that we adequately
grouped our forces in carrying out all our combat operations, while seeking to ensure a
favourable ratio of forces along individual lines of action, irrespective of whether

offensive or defensive actions were in question. Forces and resources were used
efficiently and always with a clearly set objective, efficient command, maximum
measures for protection of the unit, sound co-ordination of action among units and
co-operation with the authorities, the SDS/ Serbian Democratic Party/, the Serbian

Orthodox Church and, given the prevailing circumstances, a very efficient rear
support.”

It is clearly an analysis of the relevance of milita ry matters and that is what the single design and

plan is about. There is no reference to any other plan of the kind suggested.

126. It is obvious that the Analysis is concer ned then exclusively with military matters. In

response to Ms Korner, General Dannatt stated on 20 March, according to the transcript:

“General Dannatt: Yes, Madam President , I have read this complete document
and I find this, as a professional working person, an absolutely fascinating document.

It is a very honest appraisal by the senior command of the army of Republika
Srpska about his own capabilities and particularly about its shortfalls and why it chose
to make some of those shortfalls from.” (CR 2006/23, p. 24.)

127. The lengthy document makes no reference to the concept of a Greater Serbia. Indeed

the section headed “Concluding remarks” does make reference to genocide in relation to the

objective of protecting the Serb people agains t genocide (see page152 of the document, at

paragraphs 1 and 3).

D. The evidence of attribution is both insubstantial and unreliable

128. Madam President, what this lengthy analysis reveals is that the evidence which is given

prominence in the case for the applicant State is both insubstantial and unreliable. It is more - 19 -

specifically insubstantial for the purpose of proving the issues of attribution as presented in the

applicable law.

129. The categories of material invoked by my opponents do not produce even a prima facie

case of attribution. The main categories can be weighed up as follows:

130. Category one: this consists of inferences from ac tivities and events on the ground,

which were given prominence in the opening spe eches on behalf of the Applicant. This is

presumably a reference to the use of descriptive evidence, graphics and videos, to indicate that

atrocities had taken place. But such materi al, without more, cannot constitute evidence of

attribution.

131. Category two: consists of the alleged plan or plan s to commit genocide. No evidence

of such a plan has emerged in the pleadings and th e original version of the alleged plan, as in the

Reply, that is to say the RAM plan, has not featured in the oral argument in the first round,

although it was mentioned once more in the second ro und. In short, the pleadings disclose no

reasonable ground for the allegations of a plan to commit genocide on the part of the Government

of the FRY.

132. Category three: consists of activities alleged to c onstitute modes of preparation for

genocide. As the Court will recall, the alleged m odes were the reorganization of the Federal Army

of Yugoslavia, the distribution of arms to Se rbian communities, and the creation of parallel

institutions. In my submission these activities do not constitute even prima facie evidence of

preparation to commit genocide; and this because:

⎯ First, such activities were reasonable in the circumstances prevailing in 1991 and 1992.

⎯ Secondly, equivalent activities were undertaken by other ethnic groups.

⎯ And, thirdly, there is a presumption of the le gality of such activities and, of course, the

applicant State has the burden of proof.

Furthermore: none of this material provides relia ble evidence on the question of attribution in the

context of the Genocide Convention.

133. Category four: of the Applicant’s evidence consists of lawful forms of co-operation

and mutual assistance, especially in the financial sphere. In this context also, in the conditions - 20 -

prevailing at the material time, such co-operation and mutual assistance do not produce even prima

facie evidence of preparation to commit genocide and this for the same reasons:

⎯ First, such activities were reasonable and lawful.

⎯ Secondly, equivalent activities were undertaken by other ethnic groups.

⎯ And thirdly, there is the presumption of legality and the applicant State has the burden of proof.

And furthermore, none of this material provides reliable evidence on the question of attribution in

the context of the Convention.

134. Category five: of the Applicant’s evidence consists of inherently unreliable evidence

resulting from plea-bargains.

135. Category six: of the evidence involves the use of problematical and selected segments

of conversations and speeches of Serbian leaders, accompanied by highly coloured interpretations.

136. Madam President, in the result, my submi ssion is that the applicant State has disclosed

no reasonable grounds for the attribution of the breaches of the Genocide Convention, as alleged, to

the respondent State.

137. In closing this argument, I must emphasize the role of causation in the assessment of the

evidence proposed by the other side. The evid ence of lawful activities could only constitute

indirect evidence of attribution if there was so me causal link between, for example, the arming of

Serbian communities and the implementation of a pl an to commit genocide. Moreover, the causal

link must involve the Federal Republic of Yugoslavia and its successors.

138. But, Madam President, no such causal li nk has been proved. Indeed, the causal links

which do exist establish that the measures taken refl ected the reasonable fear of Bosnian Serbs that

they were faced by threats of repetition of Ustash a’s atrocities in the wake of the new secessionist

war. The apprehensions of the Bosnian Serbs are evidenced clearly in the following documents:

139. The first item is a letter from the Associa tion of Serbs in Bosnia and Herzegovina in

Serbia to the Yugoslav Ministry of Defence in Belgrade dated 22Janua ry 1992 (quoted in the

transcript, CR 2006/17, pp. 18-19). The text in material part reads as follows:

“Reference: Placement of a military un it in the territory of municipality of
Kupres [central Bosnia], . . . for the prevention of the genocide over the Serbs

‘Municipality of Kupres lies at the furthermost south of Bosankska

Krajina [region in the northwest of Bosnia and Herzegovina] and is - 21 -

surrounded by the municipalities populated by Catholic and Muslim
population: Gugojno, Duvno and Livno.

In the 2nd World War neighbouring Muslim and Catholic
population attempted to commit genocide over the Serbs, but, fortunately
they succeeded only partly. By such attempt the number of Serb

population was reduced, and after-war colonization in Vojvodina [north
Yugoslavia] contributed to their reduced number as well.

By the beginning of this century 70% of population of Kupres were

Serbs, while today there are only 51% of them. The overall population is
some 11,000.

High percentage of the presence of Catholic and Muslims in the

very municipality, its encirclement by such communities as well as close
vicinity of Catholic West Herzegovi na, speaks in favour of the necessity
to protect the Serb population in the municipality of Kupres.

By the protection of Kupres, the care of the periphery villages in
the municipalities Livno, Duvno and Bugojno, populated by the Serbs
would be provided for, because this population suffered a lot during the
second world war.’ (Letter to Chief of Staff, Major-General Blagoje

Adzic, signed President Gojko Dogo, 22 January 1992; Reply, Ann. 124;
emphasis added.)”

140. The second document, which I have already referred to, is the Instructions for the

Organization and Activity of Organs of the Se rbian People in Bosnia and Herzegovina in

Extraordinary Circumstances, dated 19December 1991. This document makes express reference

to the imminent threat of the secession of Bosnia and Herzegovina, “and thereby the Serbian people

from Yugoslavia”.

141. The third document is the publicati on of the army of Republika Srpska entitled

“Analysis of the Combat Readiness and Activities of the Army of Republika Srpska in 1992”. In

the final section there are two significant references to the purpose of defending the Serbian people

against genocide.

142. Madam President, the contemporary evidence provides strong indications that it was the

Bosnian Serbs who foresaw episodes of domination, episodes which would involve Serb victims.

In other words the elements of causation indicate the measures of self-protection called for in the

extraordinary circumstances of the Serbian people in Bosnia and Herzegovina in late 1991.

143. Madam President, I have now concluded this part of my argument relating to the

question of attribution. Three of my colleagues will address certain aspects of State responsibility.

And then, subsequently, I shall deal further with the interpretation of the Genocide Convention, the - 22 -

pertinent principles of State responsibilitye specific matters of rebuttal called for in the

second round.

Before leaving the podium, I wish to thak colleagues of the delegation of Serbia and

Montenegro for their substantial assistance. And finally I would thank the Court for your patience

and stamina.

Thank you very much. Would you please give the podium to my colleague Mr. Igor Olujić.

The PRESIDENT: Thank you, Mr. Brownlie. I call to the Bar Mr. Olujić.

OMLU. JI Ć: Thank you, Madam President.

T HE JNA AND ITS ROLE IN BOSNIA AND H ERZEGOVINA AT THE BEGINNING OF 1992

1. Madam President, distinguished Members of the Court, I am honoured to appear for the

first time before the International Court of Jus tice. In my speech I will present to the Court the

Respondent’s position concerning the Yugoslav National Army at the beginning of the conflict in

Bosnia and Herzegovina. Serbia and Montenegro will show that the evidence in this case strongly

supports our position and completely contradicts the conclusions the Applicant hopes to impose on

this Court.

2. Contrary to the Applicant’s claims the JNA acted according to a plan to establish a

“Greater Serbia”, when the facts are presented, th ere is only one simple conclusion. The only plan

that the JNA carried out during the dissolution of the Socialist Federal Republic of Yugoslavia was

a plan to preserve the country and to protect the c itizens who supported it. To arrive at this simple

conclusion, I will go through the facts as they re late to the conduct of the JNA before and during

the armed conflict in Bosnia and Herzegovina.

The PRESIDENT: Mr. Olujić, could you kindly speak a little more slowly?

OMLU. JI Ć: I will do my best.

Moreover, I will provide information concer ning the establishment of the Yugoslav Army

and the army of the Republika Srpska. - 23 -

Position of the JNA in SFRY

3. To better understand the position of the JNA during the conflict in the former Yugoslavia,

it is necessary to briefly outline the JNA’s position in the Socialist Federal Republic of Yugoslavia.

As explained in the CIA book Balkan Battlegrounds: “the JNA formed a cornerstone of the SFRY,

and it viewed itself as the protector and embodiment of the State, with the special role in

safeguarding the Yugoslav state and identity. More than any other entity, the JNA actually sought

to bring the slogan ‘Bratstvo I Jedinstvo ’ (Brotherhood and Unity), into reality.” 1 Despite the

2
unequal ethnic balance, which the Applicant did not forget to mention , Balkan Battlegrounds

3
concludes that, “the Army considered itself as a vital integrative factor in the Yugoslav state” .

4. The onset of nationalism in both Slovenia and Croatia caused the mustering of the JNA

against Yugoslavia’s own constituent republics. This course of events left the army’s leadership

aghast. Further events, such as: non-ethnic Serb ian JNA officers turning against their own army,

the defeat in Slovenia and the blockade of the army barracks in Croatia, caused even greater shocks

for the army committed to the defence of its country against foreign enemies. The CIA concluded:

“Despite the senior l eadership’s clinging belief in what re mained of the ‘Yugoslav’ ideal, by the

4
time full-scale war broke out in Croatia, the JNA really did not know what it was fighting for.”

5. Contrary to the CIA findings that the JNA was in many ways the heart of a dying State

and its last organ to fail, the Applicant counsel Mr.Condorelli concluded that: “beginning of the

5
genocide were, physically, carried out by the JNA” .

6. Madam President, distinguished Members of the Court, the Applicant’s conclusion in this

regard is absurd. The Applican t provides no compelling evidence to support its claims and relies

6
instead on a so-called “lucid picture” of the JNA’s role in Bosnia and Herzegovina . The

Respondent agrees that the picture that the Applican t tries to paint is lucid. However, there is

nothing in the Applicant’s argument to suggest that such a picture is accurate.

1
CIA, Balkan Battlegrounds, Vol. I, Chap. 2 “Brotherhood and Unity”, The Yugoslav People’s Army Within a
Dying State, p. 46.
2
CR 2006/34, p. 48, para. 13 (Dauban).
3
CIA, Balkan Battlegrounds, Vol. I, Chap. 2 “Brotherhood and Unity”, The Yugoslav People’s Army Within a
Dying State, p. 46.
4Ibid.

5CR 2006/9, p. 60, para. 21 (Condorelli).

6CR 2006/34, p. 46, para. 8 (Dauban). - 24 -

7. During the first and second round of oral ar gument, the Applicant’s representative drew a

picture of the JNA’s role in Bosnia and Herzegovina by using partial evidence and quotations while

summarily denying any and all facts and any evidence that could harm the veracity of its theory.

The Applicant’s “lucid picture” includes th e so-called three phases through which the JNA

allegedly prepared to carry out the crime of ge nocide. “1. Disarmament of Territorial Defence

forces; 2. “Serbianization” of Federal Army (whi ch mean JNA); 3. The transfer of garrisons of

7
Federal Army in Bosnia and Herzegovina.”

8. I will discuss all these three phases and the facts as they existed on the ground. Suffice it

to say, when all the facts are presented, I am c onfident that this Court will see the Applicant’s

“lucid picture” for what it really is: a mirage.

Disarmament of territorial defence

9. To believe the Applicant’s argument that the disarmament of the territorial defence in

September 1990 was in preparation for the alleged genocide one must overlook the substantial lack

of evidence proffered by the Applicant on this poi nt. Other than the App licant’s conclusion that

the disarmament was part of the alleged “plan” there is almost no evidence in either the Applicant’s

written pleadings or in the oral arguments to s upport it. Indeed, the “principal” evidence was

provided by the Applicant during MsKaragia nnakis’s presentation, when she paraphrased the

ICTY judgment in the Brdjanin case, which I will quote for the Court: “The trial chamber found

that, in September 1990, the JNA had ordered that weapons be removed from the depots under the

control of the territorial defence and moved to its own armouries, thereby concentrating arms with

8
the JNA in Bosnia.”

10. This is all well and good. However, MsKa ragiannakis fails to continue reading. One

line down from that quote the Brdjanin judgment continues: “Therefore, when the ethnic tension

between the ethnic groups increased, local commun ity throughout Bosnia and Herzegovina did not

have a significant number of weapons at their di sposal, in late 1991 and 1992, all three national

parties began arming themselves.” 9

7
CR 2006/9, p. 57, para. 17 (van den Biesen).
8
CR 2006/4, p. 10, para. 12 (Karagiannakis).
9ICTY, Prosecutor v. Brdjanin, Judgement, 1 September 2004, para. 87. - 25 -

11. Using the Applicant’s same source, a clearer picture of the real intent behind the decision

to withdraw arms from the Territorial Defence depot emerges. That it was the motivation of the

political leadership to prevent the possibility that such arms would be misused.

12. Here, it must be understood that the J NA’s decision was made on behalf of all the

republics in the former Yugoslavia. In 1990 the political and army leaderships of the former

Yugoslavia was still working in its full capacity, with the participation of all six republics, and it

was absolutely impossible to expect that Slove nian, Croatian and even Bosnian members of the

10
political and army leadership would act against the interest of their own republics .

. 13. Thus, the Applicant’s claims concerning th e disarmament of the Territorial Defence as

the first phase of the genocidal plan is easily refute d by the quotation the Applicant used in its own

written submission. I quote a military expert, Mr. Vego:

“Order to hand over all arms under control of the Territorial Defence was given

in all republics of the Former Yugoslavia, but with varying results . . . In Bosnia and
Herzegovina, the order was carried out almost completely, with the exception of those
areas in western Herzegovina with predominantly Croatian populations. ” 11

14. Now that we know the facts, the only conc lusion is that the Applicant’s allegations are

false. First, the order to disarm was given during a period of inter-ethnic strife by a multi-ethnic

military force. Second, the purpose of the order was to prevent an escalation towards inter-ethnic

violence. Finally, the order was carried out with no discrimination within the whole territory of

Bosnia and Herzegovina, not just in those ar eas with predominantly Muslim populations.

Accordingly, there is no merit in the Applicant’s allegation that th is disarmament order was a part

of the alleged genocidal plan or a plan to create “Greater Serbia”.

Serbianization of the federal army

15. According to the Applicant, the so-calle d policy of “Serbianization” within the JNA

ranks proves the existence of a “plan” on the part of the JNA. This argument simply ignores the

facts. There was no policy of “Serbianization” within the JNA. The JNA did not seek an “all Serb

10CR 2006/34, pp.45-46, para.5 (Dauban): “The Federal Presiden cy was, until the end of 1991, made up of a
representative from each of the republics of Yugoslavia. The idea behind such representative federal control was to
ensure that no one of the republics in Yugoslavia would have undue influence over the JNA . . .”

11Reply,Chap. 8 , p.471, para.17, Dr. Milan Vego, “The Army of Bosnia and Herzegovina”, Jane's Intelligence
Review, February 1993, p. 63. - 26 -

force”. The reason why more ethnic Serbs donned the JNA uniform in Bosnia and Herzegovina

was because the other ethnic groups living in fo rmer Yugoslavia enlisted at lower rates. Some

12
refused to join, others deserted .

16. Of course, during this period the absence of Slovenian military personnel and conscripts

within the JNA is understandable. At that time, after a short conflict with the JNA in July 1991,

Slovenia had already achieved a factual independence from Yugoslavia. The same explanation can

be applied to Croats within Croa tia, a republic which, at that time, was in a direct armed conflict

with the JNA. However, the situation in Bosnia was different. When explaining the reasons for the

increase in the percentage of Serbs in the JNA, the Trial Chamber in the ICTY case against

Dusko Tadic concluded, and I quote:

“These increases were in large measure attributable to the departure from the
federation of both Slovenia and Croatia and, in the case of Bosnia and Herzegovina, to
the substantial failure of non-Serbs to perform their compulsory military service or
13
respond to mobilization calls.”

17. Indeed, the public positions of both the Muslim and Croat political leadership in Bosnia

and Herzegovina toward the JNA in late 1991 w as documented in the ICTY Prosecutor expert’s

report submitted by Mr. Donia in the case Prosecutor v. Momcilo Krajisnik, and I quote again:

“Bosnian Serb political leaders in Bosnia and Herzegovina supported the JNA mobilizations, while

the Bosnian Croat and Muslim political leaders, at various times and different levels, either ignored

14
or opposed them.” On this point, the ICTY Trial Chamber in the Brdjanin case and numerous

witnesses testifying before the ICTY confirmed the findings of Mr. Donia 15.

18. The only possible explanation for the public postures of Croats and Muslims within

Bosnia and Herzegovina during this time, when the JNA still represented the only legal armed

forces in the territory, is the fact that both et hnic groups had already begun to establish their own

paramilitary forces and were looking to weaken the strength of the JNA. For that reason, they

12
ICTY, Prosecutor v. Momcilo Krajisnik, witness Asim Egrlic, 29 July 2004, T 4844.
13ICTY, Prosecutor v. Dusko Tadic, Judgement 7 May 1997, para. 109.

14ICTY, Prosecutor v. Momcilo Krajisnik, IT-00-39 and 40, Public Record, pp. 5525-5569, Expert report of
Mr. Robert Donia, “The origins of Republika Srpska 1990-1992 - Background report”, p. 31.

15ICTY, Prosecutor v. Milosevic; witness Mustafa Candic, 11 November 2002, T 12761; witness
Aleksandar Vasiljevic, 17 February 2003, T 16229. - 27 -

sought both officers and conscripts to leave th e JNA and enlist in th e new ethnic paramilitary

formations.

Movement of the soldiers in and out of Bosnia and Herzegovina

19. In addition to the Applicant’s claims con cerning the demilitarization of the Territorial

Defence, and the so-called “Serbianization” of the federal army, the App licant has attempted to

spin the movement of the JNA solders in and out of Bosnia and Herzegovina as a further step

towards the realization of the alleged genocidal plan. As, Mr.van den Biesen explained, and I

quote: “At the same time, Bosnian Serb recr uits serving in other Yugoslav republics were

transferred to Bosnia and Herzegovina, while no n-Serbian soldiers employed in Bosnia and

16
Herzegovina were sent closer to their native home.” This was Mr. van den Biesen’s interpretation

of the existing situation within the JNA. In rea lity, it was decided that citizens of each Yugoslav

republic at that time should serve in the m ilitary service in their republic. Contrary to

Mr. van den Biesen’s explanation, the conscripts and officers who were Bosnian citizens,

regardless of their ethnic origin, were transferre d to Bosnia and Herzegovina. At the same time,

conscripts and officers, citizens of Serbia and Mo ntenegro, again regardless of their ethnic origin,

were transferred from Bosnia to their native republics.

20. From Mr.Dannatt’s testimony before this Court, it can be concluded that he had

complete trust in Mr.Borisav Jovic’s diary, especially in the section dating from a period of

5December1991. Mr.Dannatt was in complete agreement with the following sentence that

Ms Korner read to him: “Conversation with Slobod an Milosevic . . . feels that we must withdraw

all citizens of Serbia and Montenegro from the JNA in Bosnia-Herzegovina in a timely fashion and

transfer citizens of Bosnia and Herzegovina to the JNA there in order to avoid general military

chaos.” 17

21. The text of this entry from Mr.Borisav Jovic’s diary from 5December shows that the

main reason for the mentioned decision was the conc ern for the citizens of Serbia and Montenegro

16
CR 2006/2, p. 38, paras. 31 et seq. (van den Biesen).
1“Last days of the SFRY”, Borisav Jovic, 5 Decembe1991, document No.8 introduced during testimony of
Mr. Dannatt (CR 2006/23, p. 18). - 28 -

having in mind the growing inter-ethnic tensions in Bosnia and Herzegovina and the predicted

possible conflict in that Republic.

Creation of the 2nd Military District

22. According to the Applicant, the last stage of the so-called plan occurred on

2 January 1992, when the new 2nd Military District was established.

23. However, contrary to the Applicant’ s explanation stand numerous well-known facts

which completely rebut this suppos ition and are self-explanatory. The previous military districts

covered the whole territory of the former Yugoslavi a. With an independent Slovenia, and similar

situation emerging within Croatia, there was a necessary need for establishing new lines for

military districts. As stated by the Applicant’s own witness, Mr.Dannatt, new 2nd Military

District was established with the presumption of near independence of Bosnia and Herzegovina 18.

The Applicant simply avoids these known facts.

24. Yet, even if one were to take the Applicant’s facts as they were presented, its conclusions

would be rendered illogical. If the JNA had a plan to establish full control over the Serb dominated

part of Bosnia and Herzegovina, it would be much easier to accomplish this goal with the previous,

unaltered military districts. Before redistricti ng, the 1st Military District included the part of

Bosnia and Herzegovina with an ethnic Serbian ma jority and had its headquarters in Belgrade.

Several of the Prosecutor’s witnesses who testified before the ICTY explained that the 1st Military

District, which was recalled during the redistricting in January 1992, covered the whole territory of

19
the supposed “Greater Serbia” . It follows, thus, that both before and after the redistricting, two

very different organizations of the military districts in the former Yugoslavia were both set to serve

the purpose of “Greater Serbia”. This is simply not logical.

25. Yet, the Applicant wants this Court to believe that the 2nd Military District was

demarcated by the Belgrade leadership as part of a plan. This makes no sense. The headquarters of

the new 2nd Military District were set in Sara jevo, essentially removing Belgrade’s potential for

control over the territory of Bosnia and Herze govina. Why would anyone within the Belgrade

18
CR 2006/23, p. 17 (testimony of General Sir Richard Dannatt).
1ICTY, Prosecutor v. Slobodan Milosevic, witness B 1493, 9 April 2003, T 18964. - 29 -

leadership, supposedly prompted by a plan to cr eate “Greater Serbia”, voluntarily remove oneself

from control and establish, in predominantly Muslim Sarajevo, the headquarters of the 2nd Military

District?

26. In addition to claiming that the creation of the 2nd Military District was part of a plan,

the Applicant alleged that the federal army’s garri sons were transferred to localities with Serbian

majority in Bosnia and Herzegovina before the conflict erupted. This is just another groundless

claim.

27. Moreover, in its written submissions, the Applicant presented evidence showing that the

2nd Military District had its units deployed in the whole of Bosnia and Herzegovina, regardless of

the local ethnic structure 2.

28. Discussing this issue I recall the specifi c events that took place in May 1992. The

decision of the army’s leadership not to transfer th e garrisons of the federal army to the “friendly”

territory created an opportunity for the Muslim forc es to attack and kill a large number of mainly

young conscripts trying to peacefully retreat from Tuzla and Sarajevo. The outcome of these

attacks resulted in the death of more than 100 soldiers 21.

Armament of Serbs in Bosnia and Herzegovina

29. I will move now to the question of armament. The Applicant is basing its claims

concerning the arming of Serbs living in Bosnia and Herzegovina on different sources. Yet, the

Applicant fails to mention the armament of Mus lim and Croat paramilitaries within the territory.

This can probably best be explained by Mr.van den Biesen’s statement during the first round of

oral argument, and I quote:

“Back to 1991. President Izetbegovi ć has received quite some criticism...

from many people in Bosnia for being too naive about these developments. Indeed,
Izetbegović did not seriously prepare for an armed confrontation, since he just did not
think that was conceivable . . .” 22

30. By lining up the facts, however, the overall picture looks quite different. As I already

mentioned, the removal of arms from the Territori al Defence depots occurred within the whole of

20
Reply, Chap. 8, p. 560.
21Counter-Memorial, Chap. 2, 2.13.4. Tuzla, pp.213 , 216-218; “Peacekeeper: The Road to Sarajevo”,

Lewis MacKenzie, pp. 164-178, “The convoy incident”.
22CR 2006/2, p. 37, para. 26 (van den Biesen). - 30 -

the territory of Bosnia and Herzegovina, except fo r the part of Herzegovina with a predominant

Croatian community . That means that during 1991, Serbian and Muslim national parties were left

without any weapons under their control. What happened after that?

31. Keeping in mind that in its written pleadings and during the oral arguments the Applicant

did not miss a chance to quote every source on Serb ian armament, I feel oblig ated at this time to

quote some sources, which should assist the Court in concluding that all three ethnic groups in

Bosnia and Herzegovina prepared themselves for a possible war. Permit me to begin with the

findings of Mr. Robert Donia, expert before the ICTY, and I quote:

“The formation and conduct of military and paramilitary organization in Bosnia

and Herzegovina took place in the long shadow of the war in Croatia. By early 1992,
each of the three nationalist parties in Bosn ia and Herzegovina had taken measures to

prepare military for w24 and were able to call upon paramilitary organizations to
support their aims.”

32. Mr.Donia’s findings were corroborat ed by the ICTY Trial Chamber in the Stakic and

Brdjanin cases:

“Therefore when the ethnic tension be tween the ethnic groups increased, local
community throughout Bosnia and Herzegovina did not have a significant number of
weapons at their disposal. However, in late 1991 and 1992, all three national parties

began arming themselves.”

And the judgment continues: “Muslims were also preparing for war and correspondingly arming

themselves. In June 1991, SDA leaders formed the ‘Council for National Defence of the Muslim

Nation’, with the Patriotic league as it paramilitary formation.” 25

33. Given the evidence to the contrary, how can the Applicant evoke these statements

attributed to Mr.Izetbegovic? It cannot, and the Court should disregard this claim. For it is a

known fact that the Serbs living within Bosnia a nd Herzegovina and their national party were not

the only ones to organize paramilitary formations. This was the pattern followed by all nationalist

26
parties in Bosnia and Herzegovina at the close of 1991 and at the beginning of 1992 .

23
See para. 13.
24ICTY, Prosecutor v. Momcilo Krajisnik , case No. IT-00-39&40, pp. 5525-5569, Expert report of

Mr. Robert Donia, “The origins of Republika Srpska 1990-1992 ⎯ Background report”, p. 30.
25ICTY, Prosecutor v. Milomir Stakic , Judgement, 31 July 2003, par.. ICTY,
Prosecutor v. Radoslav Brdjanin, Judgement, 1 September 2004, para. 89.

26ICTY, Prosecutor v. Momcilo Krajisnik, case No. IT 1409-1410, witness Patrick Treanor, 23 February. - 31 -

JNA in Bosnia and Herzegovina from January 1992 until the beginning of the conflict

34. Now that the expectations and activities of all national parties within Bosnia and

Herzegovina are clear on the record, I will con tinue with my discussion of the JNA, and its

position.

35. When the JNA participation in the Croatia n conflict ceased in late 1991, a large number

of JNA units withdrew to Bosnia and Herzegovina. This withdrawal was a part of the peace plan

for Croatia and was agreed with the representatives of the international community. Due to the

pull-out of JNA troops from Croatia, the JNA deposited a large number of arms within the territory

of Bosnia and Herzegovina. These facts were c onfirmed by the ICTY Trial Chamber in the case

27
Prosecutor v. Dusko Tadic .

36. However, in early 1992, the situation in Bosnia and Herzegovina was tense even without

the additional JNA troops coming from Croatia. During that time the last attempt for a peaceful

settlement of political disputes between the nationa l parties took place. ICTY Prosecutor expert

Mr.Ewan Brown, in his report submitted in the case Prosecutor v. Momcilo Krajisnik, explained

that, according to different JNA reports, growing in stability in Bosnia and Herzegovina originated

from divisions along ethnic and party lines, and th e continuing threat from the Croat Government

and their forces 28.

37. This same report further explained that the JNA believed that all national parties and

groups were contributing to the instability. Ew an Brown cited the report of the 2nd Military

District of 23 January 1992:

“On the basis of available information, it can be concluded that the three leading
national parties in Bosnia and Herzegovi na (HDZ, SDA and SDS) have for all

practical purposes created the necessary politi cal, economic and military prerequisites
to embark on armed conflict among themselve s and for armed confrontation with the
JNA.” 29

Furthermore, Mr. Brown established that a numbe r of JNA documents from early months of 1992

reflected the JNA attempt to defuse tension between ethnic groups . 30

27
ICTY, Prosecutor v. Dusko Tadic, Judgement 7 May 1997, para. 125.
28ICTY, Prosecutor v. Momcilo Krajisnik , case No. IT-00-39&40, pp. 5792-5986. Expert report of

Mr. Ewan Brown, “ Military development in Bosanska Krajina region 1990-1992”, p. 12.
29Ibid., p.12, 2nd Military District Command report on the state of combat readiness for 1991, dated
23 January 1992.

30Ibid., p. 16. - 32 -

38. Surely, the Respondent does not deny that the JNA in Bosnia and Herzegovina had a

close relation with the Serbian ethnic group. After all, ethnic Serbs comprised the great majority of

the JNA personnel within Bosnia and Herzegovina . Mr.Richard Butler, another Prosecutor’s

expert before the ICTY, in the case of Prosecutor v. Momcilo Krajisnik, explained in his expert’s

report this relation by March 1992:

“The JNA leadership in Bosnia felt that the SDS leadership, and the Serbs were

the only group, which continued to protect and support the goals of the Army. More
importantly, the SDS was the only one of the three political movements that continued
to advocate Bosnia and Herzegovina as remaining part of Federal Yugoslavia . . .” 31

39. Unfortunately, at the close of March 1992, the conflict in Bosnia broke out. Before I

begin my analysis of the beginning of the conflic t, and discuss the role of the JNA, allow me to

quote the daily combat report of the 5th Corps da ted 7April 1992, while the war in Bosnia was

ongoing:

“Since the Serbian Republic of Bosn ia and Herzegovina was proclaimed,
speculation has started regarding the future of the Banja Luka Corps. We urgently
need the position of the Supreme command regarding the place and the role of the

JNA within the structure of current deploy ments in the Serbian Republic of Bosnia
and Herzegovina.” 32

40. As to the Applicant’s “lucid picture” of the JNA’s preparation for a genocidal campaign

in 1992, I would like to point out the following: is it possible that after two years of preparation, a

large detachment of army within the heart of the most important te rritory for the future “Greater

Serbia” ⎯ a territory that must be free from all non-Serb ⎯ is it possible that this unit would send

a request to the Supreme Command for clarification of their current and future activities and goals?

The only possible answer is no. Neither was the JNA involved in any alleged plan, nor such plan

existed at all.

Conflict

41. Now I would like to discuss the conflict. In his report, the ICTY Prosecutor’s expert,

Mr.Ewan Brown, explained that, according to the JNA’s report, at the beginning of 1992 a

3ICTY, Prosecutor v. Momcilo Krajisnik , case No. IT-00-39&40, pp5. 694-5719, Expert report of
Mr. Richard Butler, “Military operation in selected Eastern Bosnia and Greater Sarajevo Municipality”, p. 4, para. 3.2.

3ICTY, Prosecutor v. Momcilo Krajisnik , IT-00-39&40, Public Record, pp.5792-5986, Expert report of
Mr.Ewan Brown, “Military development in Bosanska Kr ajina region 1990-1992”, p.21, 1st Krajina Corps regular
combat report, 7 April 1992. - 33 -

potential threat towards the JNA existed because, among other things, the Croatian Government

intended to move the conflict into Bosnia and Herz egovina. According to Mr.Brown, this threat

was very real. In March1992, the Croat forces and the Bosnian Croats conducted a large-scale

operation in northern Bosnia (Posavina region) , and seized control of the Bosanski Brod and

33
Derventa areas . This action led to the blockade of “the corridor”, which linked Banja Luka and

Krajina with eastern Bosnia and, furthermore, w ith Serbia. As a result, a large number of the

JNA units found themselves in a hostile surrounding in central and western Bosnia. On 26 March

in the village of Sijekovac, also in the muni cipality of Bosanski Brod, Croatian armed forces

executed nine Serb male civilians. A few days la ter, at the beginning of April, in the Kupres

municipality in western Herzegovina, a completely different part of the country, joint Croat and

34
Muslim forces attacked JNA units and killed at least 45 Serbian male and female civilians .

42. According to Mr.Donia’s expert report, submitted by the ICTYProsecutor in the case

against MomciloKrajisnik, these attacks and crim es, at the end of March and the beginning of

April1992, marked a turning point after which th e JNA began to take a more active role in the

Bosnian conflict on the side of the Bosnian Serbs 35. The reason for this position of the JNA can be

easily explained by the fact that the Bosnian Serbs were the only ones to support the JNA and, after

all, they made up the great majority of its troops.

43. I will continue by describing two opera tions conducted by the JNA in the Posavina

region at the beginning of April 1992. As I expl ained earlier, the JNA operations in Derventa and

Bosanski Brod were performed after the Croatia n military forces seized both towns. The JNA

action was militarily justified because the JNA, as any other army would in such circumstances, try

36
to secure main communication lines and main w ithdrawal points from Bosnia and Herzegovina .

A similar situation occurred in the municipality of Kupres where Croat armed forces attacked the

JNA units and committed crimes at the beginning of April 1992.

33
ICTY, Prosecutor v. Momcilo Krajisnik , IT-00-39&40, Public Record, pp.5792-5986, Expert report of
Mr. Ewan Brown, “Military development in Bosanska Krajina region 1990-1992”, p. 13, para. 1.6.
34
Counter-Memorial, Chaps. 7, 7.1.12.0 Bosanski Brod (Sijekovac), 7.1.13.0 Kupres.
35ICTY, Prosecutor v. Momcilo Krajisnik, IT-00-39 and 40, Public Record, pp.5525-5569, Expert report of

Mr. Robert Donia, “The origins of Republika Srpska 1990-1992- Background report”, p. 33.
36ICTY, Prosecutor v. Dusko Tadic, Judgement, 7 May 1997, para. 125. - 34 -

44. Since the Applicant has never mentioned these three municipalities, it can be surmised

that in these municipalities the JNA did not act in the explained pre-planned manner. And I want

to point out, one more time, that these were the very first military operations in Bosnia and

Herzegovina at the beginning of the armed conflict.

45. As to the situation in eastern Bosnia, the JNA’s role was much of the same. Observing

the events in eastern Bosnia, presented to the Court by Ms Laura Dauban 3, one could conclude that

eastern Bosnia was at the beginning of the war cleansed of the non-Serbs by the JNA,

38
paramilitaries from Belgrade, a nd local Bosnian Serb forces . The facts were, however, not that

simple.

46. The conflict in eastern Bosnia started in Bijeljina on 1 April 1992. To remind you, this

happened just a few days after the events in Bosanski Brod, Derventa and Sijekovac took place.

However, the JNA did not participate in fights in Bijeljina and it was not involved in the conflict

that broke out between Muslim and Serbian arme d groups. Ms Dauban overlooked this, as well as

39
the fact that the JNA provided shelter to Mus lims from Bijeljina in th e JNA’s armed barracks !

Does this evidence fit into the picture which Ms Dauba n tried to present? No, but that is the fact.

Were there any other actions of the JNA in the area of Bijeljina at the beginning of April? Yes, and

the Applicant already presented to the Court eviden ce with respect to them. In its Reply, the

Applicant submitted to the Court evidence that one of the JNA units was on 4 April stationed in the

40
outskirts of the village Janje near Bijeljina . Village Janje was a big village inhabited with 6,000

people, the great majority being Muslims. Was any crime committed against them? No. The JNA

secured them and this village and its citizens stay ed intact long after the JNA left Bosnia and

Herzegovina.

47. Foca was the next town mentioned by Ms Dauban. The fights in Foca started on 8 April

and lasted until 16April 1992. The battle lasted for eight days and, as it was explained by

37
CR 2006/6, pp. 11-26 (Dauban).
38Ibid., p. 26, para. 49 (Dauban).

39ICTY, Prosecutor v. Slobodan Milosevic, witness Sead Omeragic, 16 Oct ober 2003, T 27681; witness B1003,
7April 2003, T18675; documents submitted to the Court by the Respondent on 18January, doc No.1 “Battle and
Operational Report” 2April1992, 1992Order concerning the implementation of the Decision of the Presidency of
Republic of Bosnia and Herzegovina”, 29 April 1992.

40Reply, Ann. 128. - 35 -

MsDauban, Serbian forces were composed of Bosnian Serb forces and paramilitary forces called

“White Eagles” . Again, MsDouban did not present any evidence of direct involvement of the

JNA units in these fights.

48. Then comes the conflict in Zvornik, on 9April. Contrary to the claims of the

Applicant’s counsel concerning the JNA units’ involvement, Mr.Richard Butler, the ICTY

Prosecutor’s expert in the case against Momcilo Krajisnik, wrote in his report that the reports of the

42
local JNA units showed that the JNA was not involved in any plan to take over the town . The

JNA did get involved later, but only after its units were attacked in the vicinity of the town, and

after between 100 and 300 Muslim soldiers were placed on the hill above Zvornik, in the old

fortress called “Kula Grad”. The fact that the attack on JNA units in Zvornik surroundings started

at the beginning of April, and that until the end of that month between 100 and 300 Muslim fighters

were present in Kula Grad, justified the later JNA involvement 43.

49. And then Visegrad, on 14 April. This ti me Ms Dauban claimed that the JNA units were

44
directly involved ⎯ “whole Uzice corps unit”, as she said . Yet, counsel for the Applicant forgot

to mention what happened before and after the J NA unit took control in Visegrad. On this, she

tried to blur the picture as much as possible. Nevertheless, the ICTY judgment in the case

Prosecutor v. Mitar Vasiljevic is related directly to the events in Visegrad, and this judgment gives

a clearer picture of what really happened in Visegrad before and after 14 April:

“both of the opposing groups raised ba rricades around Visegrad, which was followed

by random acts of violence including shooting and shelling. In the course of one such
incident, mortars were fired at Muslim nei ghbourhoods. As a result, many civilians

fearing for their lives fled from their villages. In early April 1992, a Muslim citizen of
Visegrad, Murat Sabanovic, took control of the local dam and threatened to release
water. On about 13April 1992, Sabanovic released some of the water, damaging

properties downstream. The following day, the Uzice Corps of the Yugoslav National
Army (‘JNA’) intervened, took over the dam and entered Visegrad.”

And the Judgment continues:

“Even though many Muslims left Visegr ad fearing the arrival of the Uzice
Corps of the JNA, the actual arrival of the Co rps had, at first, a calming effect. After

41CR 2006/6, p. 15, para. 16 (Dauban).
42
ICTY, Prosecutor v. Momcilo Krajisnik , IT-00-39&40, Public Record, pp. 5694-5719, Expert report
Mr. Richard Butler, “Military operation in selected Eastern Bosnia and Greater Sarajevo Municipality”, p. 7, para. 5.4.
43
Ludwig Boltzmann Institut Report, p. 22; Reply Ann. 48; Counter-Memorial Chap. 7, 7.1.22.7, p. 508.
44CR 2006/6, p. 17, para. 23 (Dauban). - 36 -

securing the town, JNA officers and Muslim leaders jointly led a media campaign to
encourage people to return to their homes. Many actually did so in the later part of

April 1992. The JNA also set up negotiations between the two sides to try to defuse
ethnic tension . . .”

50. From the quoted ICTY judgment it must be concluded that the JNA action was provoked

by the Muslim extremists, who tried to destro y a dam and jeopardize the lives of thousands of

people, as well as that the JNA’s action after ta king control over Visegrad was, despite some

repressive measures, understandable in war circumst ances, conducted in a proper way. After all,

all the crimes in Visegrad, described by MsDa uban, occurred after the retreat of the JNA on

19 May.

51. Madam President, distinguished Members of the Court, after all the facts concerning

these events are presented it becomes obvious that the JNA action at the beginning of the conflict

in Bosnia and Herzegovina was not conducted in a preplanned manner, but was in reaction to local

events.

Maybe it is a good moment to stop, if my watch is correct?

The PRESIDENT: If that is what would be helpful, the Court will now rise.

The Court adjourned from 4.20 to 4.40 p.m.

The PRESIDENT: Please be seated. Mr. Olujić, you have the floor.

OMLU. JI Ć: Thank you, Madam President.

Relationship between the JNA and Crisis Staffs

52. Following the chronology of the events, we now reach a very important date for the

position of the JNA in Bosnia and Herzegovina. On 15 April 1992 the National Security Council

of the Serbian republic of Bosnia and Herzegovi na declared the “imminent treat of war” and

ordered full mobilization of the Territorial Defence forces.

53. On the following day, the Minister of Defence of the Serbian republic of Bosnia and

Herzegovina issued an order to all Serb municipalities demanding that the Territorial Defence units

would be the army of the Serbian republic of Bosnia and Herzegovina, and that it would be

45
ICTY, Prosecutor v. Mitar Vasiljevic, Judgement, 29 November 2002, paras. 42-43. - 37 -

commanded and controlled by the personnel from the municipal, district, regional and republic

levels of the Serbian republic of Bosnia and Herzegovina . 46

54. As the ICTY Prosecutor’s expert, Mr.Ri chardButler, concluded in one of his reports,

from this moment the JNA units collaborated closely with the authorities, forces, and

47
representatives of the Serbian republic of Bosnia and Herzegovina . Keeping in mind the

uncertain future status of the JNA in Bosnia and Herzegovina, the recognition of that republic as an

independent State at the beginning of April 1992, and the fact that the former Yugoslavia was in its

final stage of dissolution, and that 90percent of the soldiers and officers in the JNA at that

moment were Serbs from Bosnia and Herzegovina, th is order of 16 April 1992 must be considered

as the moment at which Republika Srpska, as a self-proclaimed State, began to exercise some kind

of control over some parts of the JNA in Bosnia and Herzegovina.

55. After explaining the order of 16 April 199 2, we can see how this order was implemented

in the field, following the presentation of Ms Dauban and MsKaragiannakis, who both discussed

48
the takeover of the municipalities and towns in Bosnia and Herzegovina . Only after the

aforementioned order was passed was there some co-ordination between the Territorial Defence

units of the Bosnian Serbs and some JNA units, or parts of these units, in the takeover of the

municipalities of Bosanski Samac, Bratunac, Vlasenica, Sanski Most, Prijedor and Brcko.

56. However, although the Applicant tried to create an impression that after 16April the

JNA units, local Serb paramilitaries, and Territorial Defence units acted in complete co-ordination,

the reality was much more complex.

57. For example, in the ICTY judgment in the case Prosecutor v. Blagoje Simic, it was

established that local Bosnian Serbs, organized by local Crisis Staff, together with some

paramilitary groups, took over control in Bosanski Samac on 17 April 1992 49. Although some JNA

units were deployed to Bosanski Samac due to the threat of attack by the regular Croat army on the

46
ICTY, Prosecutor v. Momcilo Krajisnik, case Nos.IT-00-39 and 40, Public Record, pp.5694-5719, Expert
report of Mr.Richard Butler, “Military operation in selected Eastern Bosnia and Greater Sarajevo Municipality”, p.5,
para. 3.6.
47
Ibid., para. 3.7.
48CR 2006/5, pp. 22-41 (Karagiannakis); CR 2006/6, pp. 11-25 (Dauban).

49ICTY, Prosecutor v. Blagoje Simic, Judgement, 17 October 2003, para. 442. - 38 -

town, the Trial Chamber established that they di d not participate in the takeover and were only

informed of the takeover after the fact . 50

58. Despite the fact that from 17April a convergence existed between some isolated JNA

units or parts of these units, on one side, and local Serb Crisis Staffs and Territorial Defence units

on the other, the ICTY experts, who examined the conduct and operations performed by the JNA

until its retreat on 19May, have never established th e existence of systematic co-operation. For

example, Mr. Richard Butler wrote: “Prior to May 1992, the relationship of the Crisis Staffs with

the JNA varied significantly by municipalities.” 51 Ms Dorothea Hanson, another ICTY Prosecutor

expert in the Momcilo Krajisnik case, concluded the following: “P rior to the establishment of the

Army of Republika Srpska, the relationship of the Crisis Staffs to the regular army, that is, the

JNA, was not consistent, varying by municipality and over time.” 52

59. As an example of this “varying rela tionship” I would like to mention that on

22April1992, in the Sarajevo area, the JNA units were despatched to separate Serb and Muslim

53
Croat paramilitary “warring factions” , for example from Banja Luka where, on 27April, the

Serbian paramilitary formation ⎯ named the Serbian Defence Forces ⎯ mounted a blockade to

halt the withdrawal of the JNA units from this area 5.

Crimes committed during the JNA presence

60. Before I move on to the question of the JNA’s withdrawal from Bosnia and Herzegovina

I would like to mention another very important i ssue. There is no doubt that some serious crimes

were committed during the JNA presence in Bosnia and Herzegovina. The Respondent does not

neglect this fact, but it is necessary to establish the facts surrounding every alleged crime, including

when it happened and who was responsible.

50ICTY, Prosecutor v. Blagoje Simic, Judgement, 17 October 2003, paras. 446-448.

51ICTY, Prosecutor v. Momcilo Krajisnik, case Nos.IT-00-39 and 40, P ublic Record, pp.5653-5693, Expert
report of Mr. Richard Butler, “1992 Bosnian Serb Command & Control (JNA to VRS)”, p. 17, para. 6.3.

52Ibid., Public Record,, pp. 5754-5791, Expert report of Ms Dorothea Hanson, “Bosnian Serb Crisis Staffs”, p. 25,
para. 52.

53ICTY, Prosecutor v. Momcilo Krajisnik, case Nos.IT-00-39 and 40, Public Record, pp.5653-5693, Expert
report of Mr. Richard Butler “1992 Bosnian Serb Command & Control (JNA to VRS)”, p. 12, para. 3.4.
54
Ibid., Public Record, pp.5792-5986, Expert report ofMr.Ewan Brown, “Military development in Bosanska
Krajina region 1990-1992”, p. 22, para. 1.34. - 39 -

61. Drawing “the lucid” picture of the events in Bosnia and Herzegovina during the period

1992 to 1995, the Applicant never tried to draw a line between the events and crimes that occurred

both before and after 19 May 1992. Furthermore, for the period before 19 May, the Applicant does

not make a distinction between the actions of the local Serb units and paramilitaries on the one

side, and the JNA units on the other.

62. It is our submission that before 19May, that is during the JNA presence in Bosnia and

Herzegovina, no systematic crimes against the non-Serb population occurred, for which the JNA

can be held responsible. This is confirmed by the action of th e ICTY Prosecutor, who has never

indicted any JNA or VJ officers for crimes committed before 19 May 1992.

Withdrawal of the JNA from Bosnia and Herzegovina

63. Now I would like to move to the fina l episode of the JNA presence in Bosnia and

Herzegovina ⎯ its withdrawal. The position of Serbia and Montenegro with regard to the

withdrawal of the soldiers of Yugoslav citizensh ip from the territory of Bosnia and Herzegovina

55
was already elaborated in detail in our written submissions . For that reason I will just briefly

present the chronology of the events related to this withdrawal.

64. On 27April 1992 a new State, the Fede ral Republic of Yugoslavia, was created. In

accordance with the Cons titution the FRY consisted of two republics ⎯ Serbia and Montenegro.

The new Constitution established the territory of the FRY as the territory of these two republics,

56
and also founded the Yugoslav army, which was comprised of Yugoslav citizens .

65. On the same day a joint session of the Serb ian and Montenegrin Parliament was held, at

the end of which the following declaration was adopted, and I quote a part of this declaration:

“Federal Republic of Yugoslavia has no territorial aspirations towards any of its

neighbors. Respecting the objectives and principles of the United Nations Charter and
CSCE documents, it remains strictly committed to the principle of non-use of force in
settling any outstanding issues.” 57

66. On the day when the new Constitution was adopted, the Presidency of Yugoslavia issued

an order for the transformation of the JNA, and I quote again: “This plan should envisage

55
See Counter-Memorial, Chap. 3.
56Arts. 133 and 134 of the Constitution of Federal Republic of Yugoslavia.

57Declaration adopted on 27April 1992 at the joint session of the Assembly of SFR of Yugoslavia, the National
Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro, Counter-Memorial, Ann. 310. - 40 -

transformation of the Yugoslav People’s Army into the Army of the Federal Republic of

Yugoslavia and reduce its powers to the territory and citizens of the Federal Republic of

Yugoslavia.” 58

67. Discussing that issue again, on 4May, the Yugoslav Presidency decided that “all the

remaining citizens of the Federal Republic of Yugoslavia ⎯ in employ with the JNA in

Bosnia-Herzegovina ⎯ should quickly return to the territory of Yugoslavia, within 15days at the

latest”59.

68. This decision is of great importance for th is case. It clearly states that, in accordance

with the Constitution of the Federal Republic of Yugoslavia, there ar e no grounds on which the

Presidency of the FRY or any other Yugoslav organ could decide on a military issue in Bosnia and

Herzegovina. It is even more important that c itizens without Serbian or Montenegrin citizenship

remained out of the competence of the FRY.

69. In its written pleadings and oral arguments the Applicant expresses its disagreement with

these facts, presenting the FRY’s conduct as unlawfu l. Yet, the Applicant never presented its

opinion on the real issue: what was the FRY supposed to do at that time?

70. If the Applicant expected that the FRY would order the withdrawal of all 110,000

soldiers and officers of the former JNA from Bosn ia and Herzegovina, then this expectation is

completely absurd. First, it was out of the competence of the FRY, as it was explained above, since

90percent of the soldiers were citizens of Bosnia and Herzegovina. Even if we assume, for just

one moment, that the FRY organs had the authorit y to issue such an order, it is completely

unreasonable to expect that Serbs from Bosnia a nd Herzegovina would obey it. Their withdrawal

from Bosnia and Herzegovina would, in the war ci rcumstances that existed at that time, without

any doubt lead to the complete exodus of the Serbian people from Bosnia and Herzegovina.

71. If the Applicant expected that the Responde nt was supposed to order that all JNA units

surrender their weapons to the Bosnian Government, it was equally an unrealistic expectation. The

facts presented in this case, including the Applicant’s acknowledgment that there was a civil war in

58
Minutes of Yugoslav Presidency 195th session held on 27 April 1992; Counter-Memorial, Ann. 290.
5Ibid., 197th session held on 4 May 1992; Counter-Memorial, Ann. 292. - 41 -

Bosnia and Herzegovina, make it clear that Bosn ian Serbs would never put such an order into

effect.

72. From the above conclusion it is clear that the steps taken by the FRY organs were the

only possible steps that could have been taken at that time.

73. During its oral arguments, the Applicant never mentioned the details concerning the

withdrawal of the JNA units in May 1992. Many times the Applicant just simplified the facts and

stated that the JNA left all its arms and weapons in Serbian hands. The facts are not as simple as

the Applicant tried to present. In accordance with decisions and orders of the newly established

organs of the Federal Republic of Yugoslavia, those JNA units which were comprised of the

citizens of the FRY tried to withdraw from Bosn ia and Herzegovina, but their withdrawal was

obstructed by the warring parties, which tried to obtained as much arms as possible.

74. It is clear from the presented evidence that such an intent on the part of the Muslim

armed forces existed at that time. On 29April 1992 the Minister of Internal Affairs,

Alija Delimustafic, ordered the following:

“1. Road blocks to be placed on a massive scale on all traffic arteries in the territory of

the Republic of Bosnia and Herzegovina, along which the units of the former JNA
have started to pull out technical equipment and material . . .

2. Blockade to be carried out in a broader area where military facilities are

located . . .

3. Unannounced columns of the units of the former JNA unaccompanied by the
Minister of Interior forces must be prevented from leaving the barracks and from

communicating in the territory of the Republic of Bosnia and Herzegovina . . .

4. Combat operation to be rapidly planned and started in the entire territory of the
Republic of Bosnia and Herzegovina.” 60

75. The position of the Bosnian Serbs toward the JNA was pretty much the same as the

position of the Bosnian Government. In his book “Peacekeeper: The Road to Sarajevo”,

GeneralLewis McKenzie, a former commander of the United Nations forces in Bosnia and

Herzegovina, wrote about the 11 May 1992 event:

“Radovan Karadzic was becoming more and more independent of the JNA.
There were even reports of Bosnian Serbs a ttacking any JNA unit that tried to turn its

60
Documents submitted to the Court by the Respondent on 18January, doc No.3 “Order concerning the
implementation of the Decision of the Presidency of Republic of Bosnia and Herzegovina”, 29 April 1992. - 42 -

weapons, ammunition and military equipment over t61the Territorial Defence Forces
in exchange for safe passage out of Bosnia.”

76. More than that, the “Analysis of Combat Readiness of Army of Republika Srpska for

1992” clearly explains the situation that existed in May 1992, and I quote part of this analysis:

“Thanks to the vigorous opposition of the Commander and the entire Main Staff
of the VRS to the decision of the competent authorities of the FRY Army to withdraw
combat hardware, the pullout of most of the combat hardware together with the
62
personnel ⎯ the FRY nationals ⎯ was prevented.”

77. To put all of the evidence in context, I be lieve that it will be very useful to recall one

more time the findings of the United Nations S ecretary-General from his report of 30May 1992.

In this report, the Secretary-General established:

“The bulk of the JNA personnel who were deployed in Bosnia and Herzegovina

were citizens of that Republic and were not therefore covered by the Belgrade
authorities’ decision of 4 May to withdraw JNA from Bosnia and Herzegovina. Most
of them appear to have joined the army of the so-called ‘Serbian Republic of Bosnia

and Herzegovina’. Others have joined the Territorial Defence of Bosnia and
Herzegovina, which is under the political cont rol of the Presidency of that Republic.
Others may have joined various irregular forces operating there. Those who are not

citizens of Bosnia and Herzegovina are sai d by the Belgrade authorities to number
barely 20 per cent of the total. Most of these are believed to have withdrawn already
into Serbia or Montenegro, some of them having been subjected to attack during their
63
withdrawal.”

Establishment of the army of Republika Srpska

78. Finally, we come to 12 May 1992. On th at day, the army of the Serbian Republic of

Bosnia and Herzegovina was established by the decision of the 16th Assembly of the Serbian

Republic of Bosnia and Herzegovina. In the pr esence of 49 deputies, the decision of establishment

of the Serbian Republic of Bosnia and Herzegovina army was adopted. By it, existing territorial

defence units will be renamed into units of the army. The same decision appointed

General Lieutenant Ratko Mladic as the Commander of the Main Staff of the Serbian Republic of

Bosnia and Herzegovina Army 64.

61
“Peacekeeper: The Road to Sarajevo”, General Lewi s McKenzie, Douglas & McIntyre ,Vancouver/Toronto,
p. 182.
62ICTY, Prosecutor v Radoslav Brdjanin, Exhibit P58, “Analysis of Combat Readiness of Army of Republic of
Srpska for 1992”, p. 69.

63Report of the Secretary-General pursuant to para graph 4 of Security Council resolution752 (1992),
30 May 1992, Counter-Memorial, Ann. 291.

64ICTY, Prosecutor v. Radoslav Brdjanin, Exhibit P50: Minutes, 16th Assemb ly of Serbian Republic of Bosnia
and Herzegovina, 12 May 1992, p. 60. - 43 -

79. On 1June 1992, the National Assembly of the Serbian Republic of Bosnia and

Herzegovina adopted a new military law. Article 1 of this law states: “The Army of the Serbian

Republic of Bosnia and Herzegovina is a military force established to defend sovereignty, territory,

independence and constitutional order of the Serb ian Republic of Bosnia and Herzegovina.” On

the same day, the defence law was adopted and Arti cle 7 of this law provides: “The President of

the Serbian Republic of Bosnia and Herzegovina has the power over the Army during peace, as

65
well as in time of war.”

80. Honourable judges, these are the facts. The army of the Republika Srpska was, as its

name implies, the army of the Republika Srpska . In 1992 this army comprised approximately

220,00s0oldiers, 9p9ecrent of them were citizens of Bosnia and Herzegovina.

Ninety-ninepercent of its command staff was from Bosnia and Herzegovina 66. The President of

the Republika Srpska had political control over the army. All these facts were confirmed, among

other evidence, by the statement of the former President of the Government of the Republika

Srpska, Mr.Vladan Lukic: “RepublikaSrpska (a lso) had its army and police with a complete

67
system of command and logistical support to those structures.”

81. The Applicant did not deny this statement of Mr. Lukic. What the Applicant tried to do

instead, was to finish its “lucid” presentation of the events at the beginning of the conflict in Bosnia

and Herzegovina, by using a part of the Mr.J ovic’s diary, saying that the appointment of

GeneralMladic was agreed in Belgrade. If, for the sake of legal argument, we accept that this

appointment was agreed upon, we still need to establish what this agreement was about. The

Bosnian Serb representatives requested Ratko Mladic to be the commander of their armed forces

68
due to his previous experience and the Yugoslav leadership did not oppose their request because

RatkoMladic was a citizen of Bosnia and Herze govina. This proposal was later submitted to the

highest political body of the Bosnian Serbs, their Assembly, and the Assembly accepted that

65
Official Gazette of the Serbian Republic of Bosnia and Herzegovina, No. 7, 1 June 1992.
66ICTY, Prosecutor v. Radoslav Brdjanin, Exhibit P58, “Analysis of Combat Readiness of Army of Republic of
Srpska for 1992”, p. 11.

67CR 2006/24, p. 12 (testimony of Mr. Vladimir Lukic).
68
ICTY, Prosecutor v. Momcilo Krajisnik, case No.IT-00-39 and 40, pp.5653- 5693, Expert report Mr.Richard
Butler “1992 Bosnian Serb Command and Control (JNA TO VR S), p.23, para.7.9; ICTY, case No. IT-02-54-T,
Prosecutor v Slododan Milosevic, “Tape Recording of the 50th Assembly Session held on 15 and 16 April 1995 in
Sanski Most”, pp. 16471-16543. - 44 -

proposal on 12 May 1992. From that date forwar d, General Mladic ceased to act as a member of

the VJ and started to act as the Commander of the army of Republika Srpska, which he did until the

end of the war in Bosnia and Herzegovina.

82. For that reason, the Applicant did not present to the Court any document or any other

evidence that could lead to the conclusion that after 12May 1992 Ratko Mladic, or any other

member of the army of Republika Srpska, receive d any order from the political or military organs

of the Federal Republic of Yugoslavia. Contrary to the Applicant’s assertions, the United Nations

Secretary-General, in his report from 30 May 1992, only a few days after the establishment of the

army of the Republika Srpska, established:

“A senior JNA representative from Belg rade, General Nedeljko Boskovic, has
conducted discussions with the Bosnia and Herzegovina Presidency, but it has become
clear that his word is not binding on the commander of the army of the ‘Serbian
Republic of Bosnia and Herzegovina, General Mladic’.” 69

83. Considering the facts presented, the following conclusions are submitted to the Court:

⎯ Developments of 1991 and the beginning of 1992, concerning the JNA, including the

disarmament of the Territorial Defence, changes in the ethnical composition of the army ranks

and movement of the JNA personnel in and out of Bosnia and Herzegovina, were not a part of

a premeditated plan to establish “Greater Serbia”, as the Applicant tried to present. Such a plan

did not exist and the JNA was certainly not a part of it.

⎯ During the JNA’s presence in Bosnia and Herzegovina, no systematic crimes against non-Serbs

were committed, and in any case the members of the JNA committed no such crimes.

⎯ The JNA ceased to exist on 28April 1992, when the army of the Federal Republic of

Yugoslavia was established. The great majority of the former JNA members who were citizens

of the Federal Republic Yugoslavia left Bosnia and Herzegovina by 19 May 1992. The great

majority of the Serbs, former JNA members, who were citizens of Bosnia and Herzegovina,

joined the newly formed army of Republika Srpska on the date of its establishment ⎯ 12 May.

84. This short conclusion ends my pleading, Madam President. I respectfully ask you to give

the floor to my colleague Sasa Obradović.

6Report of the Secretary-General pursuant to paragraph 4 of Security Council resolution 752 (1992),

30 May 1992, Counter-Memorial, Ann. 291. - 45 -

The PRESIDENT: Thank you, Mr. Oluji ć. I now call upon Mr. Obradovi ć to address the

Court.

OMBr. ADOVI Ć: Thank you.

T HE RELATIONSHIP BETWEEN THE Y UGOSLAV ARMY AND
THE ARMY OF R EPUBLIKA SRPSKA

Introduction

1. Madam President, distinguished Members of the Court, as my colleague Mr.Oluji ć has

just convincingly demonstrated, the presence of the Yugoslav People’s Army (JNA) in the territory

of Bosnia and Herzegovina ended on 19 May 1992. The events led to the founding of two new,

separate armies ⎯ the Yugoslav army (VJ) in the Federal Republic of Yugoslavia, and the army of

Republika Srpska (VRS) of course in Republika Srpska.

2. In the course of my presentation, I will di scuss the relationship that existed between these

two armies, which is the foundation of the Applicant’s attempt to establish the responsibility of

Serbia and Montenegro for the alleged crim es committed in the territory of Bosnia and

Herzegovina. The purpose of this pleading is to refute the Applicant’s unsupported claims that:

(1) the VRS was an organ of the Respondent70; and

71
(2) the VRS and the VJ were not two separate armies .

3. At the same time, the following evidence will demonstrate to the honourable Court that:

(1) the VRS was not under the effective control of any organ of Serbia and Montenegro; and,

(2) the assistance given to the VRS by the Fede ral Republic of Yugoslavia was not sufficient for

the attribution of acts committed by the VRS to the respondent State, as it was explained by our

72
counsel, Mr. Brownlie, in the first round of our oral arguments

The status of the army of Republika Srpska

4. A key question concerning attribution in this case revolves around this one issue ⎯

whether the army of Republika Srpska operated under the effective control of the respondent State

or not.

7CR 2006/10, p. 26, para. 35 (Condorelli).
71
CR 2006/8, p. 45, para. 23 (van den Biesen).
7CR 2006/17, para. 223 (Brownlie). - 46 -

5. Based on the evidence and arguments that both Parties have presented during the first

round of oral pleadings, the Court could have concluded how complex th e relationship between

these two armies indeed was. Thus, it is reasonable to raise the following question ⎯ could the

relationship between these two armies in the gi ven circumstances rationally, from the legal and

historical standpoint, be compared with the rela tionship between the armies of Great Britain and

73
France, as was quaintly suggested by General Sir Richard Dannatt ?

6. Despite the complex relationship that exis ted between the Yugoslav army and the army of

Republika Srpska, the following evidence clearl y shows that the Bosnian Serb army was

independent from the Yugoslav army, or from a ny other organ of the Federal Republic of

Yugoslavia. Madam President, in my presenta tion I will discuss the following evidence which

convincingly supports this conclusion:

I. ICTY Office of the Prosecutor’s expert report “1992 Bosnian Serb Command & Control

(JNA-TO-VRS)” produced in the case Prosecutor v. Momcilo Krajisnik and Biljana Plavsic by

Mr. Richard Butler.

II. The letter of Mr. Momcilo Krajisnik to the United Nations, dated 28 May 1992.

III. The statement of expert Sir Richard Dannatt.

IV. The statement of witness Sir Michael Rose.

V. Testimony of Mr.Zoran Lilic before the In ternational Criminal Tribunal for the former

Yugoslavia.

I. ICTY Office of the Prosecutor’s expe rt report “1992 Bosnian Serb Command & Control
(JNA-TO-VRS)” produced in the case Prosecutor v. Momcilo Krajisnik and Biljana Plavsic
74
by Mr. Richard Butler

7. I will first turn to the ICTY Office of the Prosecutor’s expert report produced by

Mr. Richard Butler. In the preamble of this repor t, it was noted that the report had been prepared

while the author was employed full time as a military analyst during the ongoing trial of

Prosecutor v. Stanislav Galic and in the preparation of expert military reports in the cases of

Prosecutor v. Dragan Obrenovic, Vidoje Blagojevic, Dragan Jokic and Momir Nikolic. There is no

73
CR 2006/23, p. 22 (General Sir Richard Dannatt).
7ICTY, case No. IT-00-39&40, Prosecutor v. Momcilo Krajisnik and Biljana Plavsic, pp. 5653-5693. - 47 -

doubt that Mr.Butler, as an expert of the ICTY Prosecutor Office, had all of the available and

relevant documents at his disposal. Ch apter 10 of his report, called “The VRS

Chain-of-Command”, was fully devoted to the qu estion of who controlled the army of Bosnian

Serbs. He arrived at the following conclusions:

“10.1 After 20 May 1992, the VRS was the primary military organ of the
Bosnian Serbs, tasked with achieving th e six strategic objectives of the Serbian
People. From the outset, the VRS was under the effective command and control of the
Bosnian Serb leadership, as expressed through the formal institution of the Presidency

(that included Plavsic and Krajisnik). This constituted Supreme Command of the
Army, command and control of which was exercised through an operational
chain-of-command commencing with the Comma nder of the VRS and its Main Staff,

General Ratko Mladic.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10.3 Along with the establishment of the ‘Army of the Serbian Republic of
Bosnia and Herzegovina’ on 12 May 1992, th e National Assembly also amended the
Constitution to provide, amongst other measures, that the President was to

(a) command the newly established Army in war and peace and (b) appoint, promote
and dismiss the Army’s officers. On 1 June 1992, the Presidency adopted the Defence
Act to further expand the powers of the President to include the following:

75
(1) command and control of the Army in peace and in war . . .”

8. The Butler report is very clear and l eaves no room for reasonable doubt regarding its

interpretation. The VRS was under the effec tive command and control of the Bosnian Serb

leadership. It is hard to imagine that the ICTY Prosecutor’s expert would have ignored the role of

the Federal Republic of Yugoslavia in controlling the Republika Srpska army, if such control had

really existed.

II. The letter of Mr. Momcilo Krajisnik to the United Nations, dated 28 May 1992

9. I will now turn to the letter of Mr.Mo mcilo Krajisnik to the United Nations, dated

28 May 1992. In this letter Mr. Krajisnik stated that as of 18 May 1992 “ members of the Supreme

Command of the Serbian Army were appointed, all armed forces are under our full control” 7.

10. Madam President, this was stated by the President of the Assembly of the Serbian People

in Bosnia and Herzegovina. His letter was te ndered in the ICTY case against him by the

Prosecution Office on 19 April 2005 during the testimony of the protected witness KRAJ 084, and

75
Ibid., p. 5657 of the Public Record (p. 37 of the expert report), paras. 10.1 and 10.3 (footnotes omitted).
7Judges’ folder submitted by Serbia and Montenegro in the second round of oral arguments, doc. No. 6. - 48 -

admitted by the Trial Chamber Oral Decision on 24 May 2005 as a public document 77. The full

text of this letter you can find in the judges’ folder. It is document No. 6.

III. The statement of General Sir Richard Dannatt

11. The Applicant’s claim that the VRS was under alleged control of the government

authorities of the Federal Republic of Yugosla via was not directly confirmed even by the

Applicant’s expert, General Sir Richard Dannatt. In response to your direct question,

Madam President, General Dannatt stated:

“The degree to which the VRS acted in an independent way, I think I would say
that in part it did, but its actions were fr amed by the overall intent and that therefore
the operations that the VRS carried out were , if you like, as an agent of the overall

purpose. So I think day-to-day operationa l control was exercised by GeneralMladic
and the Main Staff of the VRS, but the overall purpose was a purpose initially framed
in Belgrade . . .”78

12. Answering the question whether he was aware of any orders given by the government

authorities of the Federal Republic of Yugoslavia, or those of Serbia, to the commanders of the

army of Republika Srpska, posed by Judge Tomk a, General Dannatt testified: “And then your

second question, I believe MadamPresident, was whether I have any evidence of orders being

79
issued directly. No I do not. But I would not expect to see such orders.”

13. On the basis of the statements of Gene ral Dannatt, the Respondent respectfully submits

the following conclusions:

(1) General Dannatt did not present to the Court any evidence that would confirm that the VRS

was under the control of the Federal Republic of Yugoslavia on the tactical, operational or

military strategic command level.

(2) General Dannatt gave his statement as an e xpert who was previously engaged by the ICTY

Prosecutor, and had examined an enormous number of documents. He said:

“I looked at a large number of documents that I asked to see, or I was shown, or
from my knowledge of operations in the Balkan s over the last ten or 12 years. I have

looked at an extensive number of docume.n.t.s People such as
General Sir Michael Rose, General Sir Rupert Smith, Mr.Richard Holbrook, all have

7ICTY, case No. IT-00-39&40, Prosecutor v. Momcilo Krajisnik, Exhibit No. P-620.
78
CR 2006/23, p. 44 (General Sir Richard Dannatt).
7Ibid., p. 46. - 49 -

committed their near contemporaneous record s into book form. I certainly have all
those books and others.” 80

(3) General Dannatt left open the possibility that some influence existed at the grand strategic

level, on which the activity is “mainly character ized by politicians determining their ambition,

81
determining their intentions” .

14. Obviously, General Dannatt very prudently avoided committing himself on this issue.

He said: “The grand strategic le vel would be activity in Belgrade , or activity in Pale, Banja Luka,

wherever the seat of government at the time was as far as the Bosnian Serb Republic is

82
concerned . . .”

15. The respondent State considers that the testimony of General Dannatt in part dealing with

his understanding of political goals pursued during the Bosnian war should not be taken as relevant,

let alone conclusive. General Dannatt was simp ly a military expert, he was not a witness of

political events. And, I think that he faithfully ex pressed his position in that regard. He said: “I

think it begs the question ‘what w as the substance of the discussions at times between Mladic and

83
Milosevic’? I do not know, I was not there.” And he also said: “I have to speculate; I wonder

what they talked about.” 84 For these reasons, the speculation of General Dannatt about the alleged

“overall intent” or the “overall purpose” framed in Be lgrade cannot be accepted as relevant in this

case.

IV. The statement of witness Sir Michael Rose

16. The next piece of evidence that I wish to discuss is the statement of witness

Sir Michael Rose, who, with regard to the same topic, said as follows:

“The burden of responsibility for those war crimes undoubtedly goes through

the civil authority, and notably to the top, in the case of Mr. Tudjman; in the case of
Republika Srpska, MrK . aradži ć; and in the case of Bosnia-Herzegovina,

Mr. Izetbegović. All three share responsibility for the war crimes and atrocities.

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,

80CR 2006/23, p. 15 (General Sir Richard Dannatt).
81
Ibid., p. 13.
82
Ibid., p. 14; emphasis added.
83Ibid., p. 22; emphasis added.

84Ibid., p. 31. - 50 -

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
85
military command arrangement.”

17. Furthermore, Sir Michael Rose added:

“I think it would certainly be true to say that Mladi ć had his own agenda and
that the régime in Belgrade may have been morally supporting it and materially
supporting it, but they were not controlling it in a military sense. He had his own
86
agenda.”

18. Answering the question of Judge Owada concerning the source of his information

regarding the relationship between the two armies, Sir Michael Rose said:

“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.” 87

19. The factual conclusions that can be drawn from this testimony are very clear:

(1) The top level authorities responsible for the atrocities committed in Bosnia and Herzegovina

were Tudjman, Karadzic and Izetbegovic.

(2) Sir Michael Rose as an United Nations peacekeeper in Bosnia and Herzegovina and an officer

with considerable military experience considers that there is no evidence that the Belgrade

authorities controlled the army of Bosnian Serbs.

V. Testimony of Mr. Zoran Lilic before the ICTY

20. The former President of the Federal Re public of Yugoslavia Mr. Zoran Lilic was called

as a witness in the Milosevic case, by the ICTY Prosecutor. Madam President, allow me to cite a

relevant part of his testimony.

21. The question was: “Did the general staff of the Army of Yugoslavia in any way have a

command role in relation to the staff of the Army of Republika Srpska or over the main staff of the

Serbian Army of Srpska Krajina?” 88 Mr. Lilic answered:

“That is simply impossible. If all our normative and legal decisions were

abided by, the general staff of the Army of Yugoslavia could not be placed in such a

8CR 2006/26, pp.11-12 (Sir Michael Rose); emphasis added.
86
Ibid., p. 27.
8Ibid., p. 33.

8ICTY, Prosecutor v. Slobodan Milosevic , case No.IT-02-54-T, Transc ripts, 18 June 2003, p.22757;
http://www.un.org/icty/transe54/030618IT.htm - 51 -

decision, and by decision of the Supreme Defence Council that matter was never
raised or discussed, so my answer is no.” 89

Madam President, the Applicant’s counsel Ms Ka ragiannakis asked the Court not to take the

Lilic statement in the ICTY Milosevic case as “objective and conclusive evidence”, because he was

90
a Milosevic’s former associate . With respect, she seems to have forgotten two points: first,

Mr. Lilic, as a Prosecutor’s witness, testified against Milosevic’s interest in that case, and second,

the Applicant’s Deputy Agent had already presented the Lilic statement a couple of times as fully

reliable evidence in this case 91. The Respondent, of course, does not contest the credibility of the

Lilic statement presented by the Applicant.

Conclusion

22. Members of the Court, the evidence that I have just presented clearly demonstrates that:

(1) the VRS and VJ were two separate armies;

(2) the VRS was not in any way an organ of the Federal Republic of Yugos lavia (now Serbia and

Montenegro);

(3) the VRS was under effective control of the Republika Srpska Presidency.

The Yugoslav army’s assistance to the army of Republika Srpska

23. Madam President, distinguished Members of the Court; it is not in dispute that the

Yugoslav army was providing assistance to the army of Republika Srpska during the conflict in

Bosnia and Herzegovina. According to the testimony provided by the expert,

General Sir Richard Dannatt, this assistance was limited to “personnel supp ort, logistic support,

92
equipment and training” .

24. However, the Respondent would like now to emphasize that the liaisons between the

VRS and VJ were changed frequently in accordance with the political situation, and consequently,

the assistance that the VRS received by the VJ was not permanent.

89
Ibid.
90
CR 2006/32, p. 65, para. 81 (Karagiannakis).
91CR 2006/8, p. 42, para. 13 (van den Biesen); see also CR 2006/34, p. 41, para. 41 (van den Biesen).

92CR 2006/23, pp. 23-24 (General Sir Richard Dannatt). - 52 -

25. In 1992, it seemed very necessary to th e Government of the Federal Republic of

Yugoslavia that its country should assist a newl y established army of Bosnian Serbs who found

themselves suddenly citizens of another State.

26. Today, it is easy to say that Serbs in Bosnia and Herzegovina were not threatened

because all nations in Bosnia and Herzegovina were minorities 93. But then, the majority of Serbia

and Montenegro’s citizens believed that the Se rbs in Bosnia and Herzegovina, without the

assistance of the mother country, would likely be victims of atrocities and violation of human

rights.

27. Assistance was given. Its purpose was not to contribute to the committing of any crime,

particularly not the crime of genocide. Its purpo se was to enable the establishment and survival of

Republika Srpska, which, as an entity, was fully recognized by the Dayton-Paris Peace Agreement.

28. However, public opinion in Serbia and Montenegro, as well as the position of the

Belgrade authorities, was significantly changed when the leadership of th e Bosnian Serbs refused

to accept the Vance-Owen Plan in the spring 1993. Instead of accepting peaceful settlement of the

conflict, Bosnian Serbs continued to take part in the war, which had already taken a large number

of casualties and in which all three warring sid es committed numerous crimes. We have heard

convincing statements of Messrs. Lukic and Popovi c, witnesses from Republika Srpska, about the

cessation of the assistance of the Yugoslav Government in those days.

29. Since the leadership of the Bosnian Serb s refused the plan of the Contact Group, the

Belgrade leadership decided on 4 August 1994 to impose a blockade along the border with Bosnia

and Herzegovina. As of September 1994, any assistance, except in food, clothes and medicine, was

stopped, although it could be said that different types of trafficking still existed.

Armament issue

30. All of us today have every right to criticize Slobodan Milosevic’s régime and its political

role in the conflict in the former Yugoslavia. It is certain that Serbia and Montenegro traded arms

with Republika Srpska and violated the arms em bargo imposed by the United Nations Security

93
CR 2006/30, p. 37, para. 20 (van den Biesen). - 53 -

Council resolution No. 713 of 25 September 1991. Yet, was the Bosnian army not behaving in the

same way?

31. The key evidence that the Applicant presen ted regarding the armament of the army of

Republika Srpska by the Federal Republic of Y ugoslavia was the speech of General Ratko Mladi ć

addressed to the National Assembly of Republik a Srpska at the 50th Session held on 15 and

94
16 April 1995 in Sanski Most . The official summary from the session can be found in the public

records in the ICTY Milosevic case 95.

32. However, the Applicant has avoided to pr esent the facts in their full context, both with

respect to the mentioned speech and the other speeches from the same session. The Applicant

pulled out only the information regarding the amount of weapons and ammunition received from

the beginning of the conflict until the end of 1994. The Respondent considers that some following

observations would be useful for the deliberation of the Court.

33. Firstly, from the presented information it cannot be concluded to what extent the

armament assistance was reduced or even ended from the moment of imposing a blockade on Drina

River.

34. Secondly, General Mladi ć’s speech was addressed in the dramatic circumstances when

the assistance from the Federal Republic of Yugoslavia was stopped. The summary of the

50th Session can confirm this fact. General Mladi ć stated that “deterioration of relations between

Republika Srpska and Yugoslavia is the worst thin g that could happen to the Serbs in Bosnia” 96.

Furthermore, he added: “There have been diffi culties with logistical support of the army, due to

sanctions imposed on Yugoslavia by the UN Security Council and the blockade by Yugoslavia on

Republika Srpska. There is an evident problem of ammunition supplies, fuel supplies, maintenance

97
tools, clothes and medical supplies.” President Karadzic confirmed it and concluded: “Serbia has

imposed a blockade; but Serbs have to fight with what they have.” 98 At the same session, Deputy

94
CR 2006/2, p. 47, para. 65 (van den Biesen).
95
ICTY, case No.IT-02-54-T, Prosecutor v. Slobodan Milosevic , “Tape Recording of the 50th National
Assembly Session held on 15 and 16 April 1995 in Sanski Most”, Public Records, pp. 16471-16543.
96
Ibid., p. 16533.
97Ibid., p. 16526.

98Ibid., p. 16510. - 54 -

Milanovic stated that “the problem in connection with the officers’ salaries were the sanctions

introduced by Serbia against Republika Srpska, which meant that they have not received any

money for six months” . 99

35. Thirdly, the Applicant has completely ignored the fact that the total amount of the

weapons and ammunition received from the VJ was almost the same as one that stayed in

100
Republika Srpska after the JNA’s withdrawal . This fact does not make any difference for the

Applicant. Following the Applicant’s logic, the only reason why the JNA left weapons and

ammunition in the possession of the Bosnian Serbs was to enable them to commit the crime of

genocide against the non-Serb population. On the other hand, the former JNA weapons captured

by the Bosnian army were used only for defen ce from the Serbian aggression. I hope that the

honourable Court will understand the paradox of the Applicant’s argumentation.

The 30th Personnel Centre saga

36. The Yugoslav army also gave an admini strative assistance to the VRS. However, the

existence of the 30th Personnel Centre has been turn ed by the Applicant into a saga, according to

which this Court should conclude that the VRS o fficers who were registered in the 30th Personnel

Centre and through it settled their personal matters were in fact members of the VJ. Such a thesis

should lead the Court to the conclusion that the VRS and VJ, actually, were not two separate

armies and that VRS was de jure organ of the Federal Republic of Yugoslavia.

37. Members of the Court, this argument is just another Applicant’s exaggeration.

38. At the end of 1993, Serbia and Montenegro was facing the highest hyperinflation in

history. The situation of the families of th e officers of the Republika Srpska army was very

difficult, because most of them were refugees in the Republic of Serbia. It is not in dispute that,

pursuant to the order of the President of the Federal Republic of Yugoslavia, Mr. Zoran Lilic, dated

10November1993, the Yugoslav army Chief of Ge neral Staff, Mr.Momcilo Perisic, issued the

order on 15November1993 establishing the 30th Personnel Centre of the Yugoslav army.

According to Mr.Torkildsen, it was the administ rative centre in charge of taking care of and

99
Ibid., p. 16490.
10Ibid., p. 16525. - 55 -

administering the needs of the officers and other personnel serving in the VRS 10. Let me quote the

following explanation for the establishment of this administrative centre, given by President Lilic

in his testimony before the ICTY.

“The basic reason why the 30th Personal Centre was established [was] primarily

to resolve the existential status of these people who formerly belonged to the JNA and
who were outside the territory of the FRY and who were citizens of the Republic of
Bosnia-Herzegovina. The Centre was establis hed precisely with that aim in mind, in

order to have the documents taken care properl y, to take care of their own needs, to
take care of the needs of their families primarily, because most of them were refugees
in the territory of the Federal Republic of Yugoslavia.” 102

Payments issue

39. Madam President, it is not in dispute that the VJ through the 30th Personnel Centre paid

salaries to the officers of the VRS who were fo rmer members of the JNA. Nevertheless, the

Respondent would like to emphasize a few facts that the Applicant suppressed.

40. Firstly, the payments of the VRS officers ⎯ which in some periods were in the form of

salaries, while in another in the form of public welfare ⎯ generally were very low during the time

of hyperinflation.

41. Secondly, the payments of the VRS officers by the VJ were not constant as the Applicant

has tried to present. The evidence for this claim is following:

(1) The report named the “Analysis of Combat Readiness and Activities of the Bosnian Serb Army

in 1992”, according to which the Applicant’s counsel, Mr.Torkildsen, could not seriously

confirm that there was any evidence that the o fficers of the VRS had received their salaries

from the Federal Republic of Yugoslavia sinc e 30 June 1992 till November 1993, when the

30th Personnel Centre was established 103. That part of his presentation was discussed today in

detail by our counsel, Mr. Brownlie.

(2) Second, the summary from the 50th Session of the National Assembly of Republika Srpska

held on 15 and 16 April 1995 in Sanski Most contained the statement of the deputy

101
CR 2006/9, p. 26, para. 10 (Torkildsen).
102
ICTY, case No.IT-02-54-T, Prosecutor v. Slobodan Milosevic , transcripts, 18 June 2003, p.22592;
http://www.un.org/icty/transe54/030618IT.htm.
10CR 2006/9, p. 26, para. 9 (Torkildsen). - 56 -

Mr. Milanovic, that I have already quoted. Acco rding to his statement, the VRS officers have

received no money for six months 104.

(3) The statement of President Lilic at the Milosevic trial, which relevant part I will quote:

“After the sanctions were introduced against Republika Srpska, we took a
decision that the minimal part, that is the social welfare part, should be given to the

families of the 30th Personal Centre to con tinue their children’s education, and I think
that part of it was continued. That’s what I had in mind. But they were not the entire

amounts, they were just amounts that were salarie105uaranteed in the Federal Republic
at that time, the guaranteed wages in fact.”

(4) The statement of the Prosecutor’ s protected witness B-1804 in the ICTY Milosevic case, who

106
also confirmed the payment-break . For the convenience of the Court, we included the

relevant part of his statement in the judges’ folder. It is document No. 7.

42. Finally, the Yugoslav Army did not pay all o fficers of the Republika Srpska Army.

According to the Applicant’s Deputy Agent, 1,800 Bosnian Serb officers were registered in the

30th Personnel Centre 10. But, Madam President, the VRS numbered “222,727 pe rsons of whom

14,541 [were] officers, [and] 12,032 non-commissioned officers”, according to the “Analysis of the

108
Combat Readiness and Activities of the Bosnian Serb Army in 1992” . This document has been

so often invoked by the Applicant in this case, and I think, its accuracy is not in dispute.

43. Consequently, the Applicant’s argument that “the man who pays the cheque is usually

the man who is in command” is seriously being damaged. In spite of the facts that (1) only a small

part of the VRS officers were paid by the VJ; (2)even that group of the VRS officers were not

paid regularly and continuously, an d (3) their salaries were very low ⎯ the VRS Army continued

to exist and fight.

104ICTY, case No.IT-02-54-T, Prosecutor v. Slobodan Milosevic , “Tape Recording of the 50th National

Assembly Session held on 15 and 16 April 1995 in Sanski Most”, Public Records, p. 16490.
105ICTY, case No. IT-02-54-T, Prosecutor v. Slobodan Milosevic, Transcripts, 18 June 2003, p. 22677.

106ICTY, case NoI.T-02-54-T, Prosecutor v. Slobodan Milosevic , Transcripts, 11 February 2004,
pp. 31868-31871 (judges’ folder submitted by the Respondent in the second round of oral arguments, doc. No. 7).

107CR 2006/8, p. 45, para. 24 (van den Biesen).
108
ICTY, case No. IT-99-36, Prosecutor v. Radoslav Brdjanin, “Analysis of the Combat Readiness of the Army
of Republika Srpska in 1992”, Exhibit P2419, p. 11. - 57 -

“Promotions” issue

44. I would like now to turn to another i ssue and to demonstrate that the Applicant’s

109
allegation that the Supreme Defence C ouncil and VJ promoted the VRS officers is not entirely

correct.

45. The evidence for my assertion is the following:

(1)According to the Amendments to the Cons titution of the Serbian Republic of Bosnia and

Herzegovina that I have already mentioned, the President of Republika Srpska was to appoint,

promote and dismiss the army’s officers 11.

(2) The relevant part of the ICTY Prosecutor’s expert report produced by Mr. Richard Butler in the

Krajisnik and Plavsic case reads as follows:

“This core membership of the VRS Ma in Staff . . . remained remarkably

consistent throughout the Bosnian conflict, w ith all but one of the original Assistant
Commanders appointed by Mladic remaining in their posts throughout the conflict and
each promoted, by Radovan Karadzic on 24 June 1994, to the next higher rank while

serving in their Main Staff position. Mladic himself was also promoted from
Lieutenant Colonel General to Colonel General on this same date in 1994.” 111

Distinguished Members of the Court, according to this ICTY Prosecutor’s expert report, it

seems clear that the Applicant’s allegation that Ratko Mladic was promoted to the rank of

Colonel General on 24 June 1994, the same date actually, by the Y ugoslav Supreme Defence

Council 112is not correct. It must be a direct con sequence of the Applicant’s approach to the

sources of evidence in this case ⎯ instead of quoting the available expert report, the Applicant

quoted the allegation from the ICTY Perisic Indictment, which is still at the pre-trial stage.

(3) In the official summary from the 50th Republika Srpska National Assembly Session held on 15

and 16 April 1995, from which the Applicant quoted only the Mladic report concerning the

ammunition supply, the Court can find the following statement of the deputy, Mr. Kupresanin,

who criticized the highest organs of Republika Sr pska for promoting too many officers. He

said:

109
CR 2006/34, p. 53, para. 23 (Dauban).
11See ICTY Office of the Prosecutor’s Expert Report “1992 Bosnian Serb Command & Control

(JNA-TO-VRS)” by Mr. Richard Butler, produced in the case Prosecutor v. Momcilo Krajisnik and Biljana Plavsic ,
IT-00-39&4-PT, Public Records, p. 5657, para. 10.3.
11Ibid., p. 5662, para. 8.4; emphasis added.

11CR 2006/8, p. 47, para. 29 (b) (van den Biesen). - 58 -

“The Parliament and the President of the country were too generous in
promoting too many officers into higher ra nks and there are too many generals. The
Parliament did not evaluate each promoti on as it is usually required. The President

produced more generals in RS than there are in America. One day the Parliam113 will
take over that duty because it should be the highest institution in RS.”

46. If we take into consideration that th e original words of this deputy were noted

accurately ⎯ and I think that there is no reason for such a doubt ⎯ as well as that Mr. Butler, as

the Prosecutor’s experienced expert, had the oblig ation to present the fact s in accordance with his

best knowledge and sincere belief, the questio n remains how then do the same documents

concerning the promotions of the VRS officers by the VJ still exist.

47. Although paradoxical, the answer is simple . The VJ organs did not only register the

Republika Srpska promotions of the VRS offi cers into the 30th Personnel Centre, but also verified

them by their decisions. That procedure wa s necessary throughout the period when the VRS

officers received the salaries from the VJ. Namely, a colonel’s salary was naturally higher than a

salary of a lieutenant colonel. Without the veri fication of promotion made in Republika Srpska, a

colonel would continue to receive the VJ salary of the lower rank, i.e. the lieutenant colonel’s

salary. The contests of the Document No. 50 ⎯ Confidential Document of the VRS called

114
“Forming and Delivering the Working Lists” of 15 May 1995 , as well as the Document No.

62 ⎯ the VRS Confidential Order, dated 1 June 1995 115, both submitted by the Applicant on

20 January 2006, fully confirmed this assertion that the VJ only verified promotions that had

previously been made in Republika Srpska.

Conclusion

48. Madam President, distinguished Members of the Court, allow me to finish this brief

presentation of facts in relation to the assistance issue with the following conclusions:

⎯ The 30th Personnel Centre of the Yugoslav army was an administrative organ, through which

the administrative assistance in personnel matters was given to the Republika Srpska army.

113
ICTY, case No.IT-02-54-T, Prosecutor v. Slobodan Milosevic , “Tape Recording of the 50th National
Assembly Session held on 15 and 16 April 1995 in Sanski Most”, Public Records, p.16498.
11VRS, Command of Drina Corps, Confidential Doc. No. 05/2-174, 15 May 1995, “Forming and Delivering the
Working Lists”, para. 2. Doc. No. 50 submitted by Bosnia and Herzegovina, 20 January 2006.

11VRS, Confidential Order No. 09/30/11-619/4, dated 1 June 1995 (document No. 62 submitted by Bosnia and
Herzegovina on 20 January 2006). - 59 -

⎯ There is no evidence that the officers of the Repub lika Srpska army who were registered in the

30th Personnel Centre were, at the same time, the officers of the Yugoslav army.

⎯ The Applicant has failed to present any eviden ce that any of these officers acted under the

command or under the particular orders of the Yugoslav army.

The assistance given to the VRS by the VJ is not sufficient to establish the State responsibility, as it

has already been explained by our counsel, Mr. Brownlie.

Thank you for your kind attention. Madam Pr esident, I think that we still have enough time

to start with a new speaker, my colleague, Mr. Cvetković. Please call him to have the floor.

The PRESIDENT: Thank you, Mr. Obradovi ć. I call Mr. Cvetkovi ć to begin his

presentation.

CMVr.TKOVI Ć: Thank you, Madam President. As you can see, we are a little bit behind

our schedule for today so, before I start, I would just like to ask for your permission to go maybe

five to ten minutes over 6 o’clock, if that is acceptable?

The PRESIDENT: Yes.

CMVr.TKOVI Ć: Thank you.

PARAMILITARIES

1. Madam President, distinguished Member s of the Court, the war in Bosnia and

Herzegovina involved a significant number of paramilitary formations, operating on all sides of the

conflict. Some of these units became notorious during the war and some of them became known

recently. Here I refer in particular to “Scorpion s”, whose gruesome crime, recorded on video, we

saw in this courtroom.

2. The Applicant seeks to link all the paramilitary units fighting on the Serbian side with the

Belgrade authorities. Furthermore, with respect to some of the units, the Applicant claims that they

were actually not paramilitary units, but regulunits belonging to the Serbian Ministry of the

Interior. - 60 -

3. The Applicant’s approach to this issue is c onsistent with their approach in the entire case.

The lack of credible evidence is compensated for by selective use and occasional misrepresentation

of existing ICTY materials and other sources. Th e ultimate purpose of this approach is to present

every action of the Serbs as unlawful and as a part of a genocidal plan that is supposed to have had

its origin in Belgrade. The evidence, however, does not support this approach.

4. In this intentionally created confusion, it is rather difficult to determine what the Applicant

actually claims to have happened. Nevertheless, I will try to proceed with my examination on the

basis of the following assumptions made by the Applicant:

(a) Paramilitary units were allegedly organized by the Respondent.

(b) These units were allegedly acting under the control of the Respondent during the entire conflict

in Bosnia and Herzegovina.

(c) Some of the units were supposedly only pretending to be paramilitaries, while in fact they were

regular units of the Serbian Ministry of the Interior.

(d) Paramilitary units allegedly committed genocide in Bosnia and Herzegovina.

These assumptions can be found throughout the App licant’s written pleadings and oral arguments,

and in particular in the speeches of Ms Karagiannakis in the first round (CR 2006/9, pp. 10-22) and

Ms Dauban in the second round (CR 2006/34, pp. 44-62 and CR 2006/35, pp. 20-36).

The origin of the paramilitaries

5. The Applicant referred to several regulati ons adopted in 1991 in either the Socialist

Federal Republic of Yugoslavia or the Socialist Republic of Serbia 116. According to the Applicant,

these regulations should prove that the Respondent established and had control over paramilitary

forces operating in Bosnia and Herzegovina.

6. The existence of the regulations is not disputed by the Respondent. However, the

conclusions that the Applicant tried to draw are erroneous. Furthermore, in some cases, the context

in which the Applicant refers to these regulations is a clear example of a selective and incorrect use

of evidence.

116
See CR 2006/9, pp. 10-11, paras. 2-5 (Karagiannakis). - 61 -

7. All the regulations that the Applicant liste d were passed in 1991, after the war in Croatia

escalated. They were passed precisel y to enable the State to deal with the new circumstances that

war had created. After Slovenia and Croatia proclaimed their secession from the SFRY, the

Federal State and its army ⎯ the JNA ⎯ found themselves in an unexpected position. Due to the

desertion of the Croatian and Slovenian officers and soldiers, the ranks of the army were

decimated, but its leadership was still committed to preserve the common State, which was the only

internationally recognized State at that time.

8. The army thus ordered a mobilization, but the mobilization failed. This was explained in

117
more detail by our Agent, Professor Stojanovi ć, in his speech in the first round . However, in

contrast to the majority of the people who did not respond to the mobilization, there was a small

number of people who were not called to arms but still wanted to fight. These men are known as

volunteers and some of them later became known as paramilitaries.

9. The reasons why these men volunteered varied. Some of them were probably patriots who

wanted to protect Yugoslavia or just to protect Se rbian people in Croatia. On the other hand, some

of the volunteers were undoubtedly criminals and probably the best description for them would be

an infamous term “dogs of war”. But, whatever the case was, the JNA did not greet the volunteers

with open arms and many in the army were very reluctant to accept them.

10. The solution had to be found and it was found in the adoption of the regulations that the

Applicant referred to. These regulations were abso lutely lawful and their purpose was to put the

volunteers under the control of the JNA and to make them abide by the rules of armed conflict.

Therefore, the JNA and the State organs, which passed the regulations, were not acting on some

premeditated plan. On the contrary, they were r eacting to the situation on the ground, trying to

bring some order in the already very complicated conditions. Unfortunately, they were not very

successful in doing that. Most of the volunteer un its were only formally incorporated in the army,

while they remained as compact independent un its, with their own commanders, and they stayed

de facto out of the control of the JNA.

117
See CR 2006/15, pp. 15-17, paras. 131-141 (Stojanović). - 62 -

The onset of conflict in Bosnia and Herzegovina ⎯ the status of paramilitaries

11. Whatever the extent of the control that the JNA exercised over the paramilitary units

under the regulations that the Applicant referred to , these regulations had very limited effect and

have nothing to do with the present case. The regul ations were adopted in 1991, during the war in

Croatia, and when the war in Bosnia and Herze govina started, these regulations were no longer

applied. This is best confirmed by one of th e documents that the Applicant tendered through the

expert, General Sir Richard Dannatt. This is document No. 16, the transcript of the conversation

between Mr.Unkovi ć from the Sarajevo Crisis Staff and Ratko Mladi ć of 13 May 1992. The

relevant part, underlined by the Applicant, reads:

“Unkovi ć: One more question.

Mladi ć: Yes?

Unkovi ć: We have some Arkan’s men here.

Mladi ć: Yes?

Unkovi ć: Are they under our command?

Mladi ć: All are. All under arms are under my command, if they want to stay
alive.

Unkovi ć: Excellent! Excellent!

Mladi ć: So, all shall be under our command. No one shall do things on their
own and the five-day cease-fire must be observed!”

12. In her pleading to this Court, Ms Karagiannakis read only one sentence spoken by

118
Mladić: “All under arms are under my command.” If that were the only sentence, then the

Applicant’s claims might have had some grounds . However, the Applicant was kind enough to

provide the whole intercept and the remainder of the conversation between Mladi ć and

Mr. Unković sheds a different light on the relationship between General Mladi ć and the army he

commanded, on the one hand, and the para militaries on the other hand. If Mladi ć had command,

why would he then threaten Arkan’s men with their lives if they do not obey the ceasefire? And,

above all, why would an issue of command be discus sed in the first place if the regulations that the

Applicant referred to were still app lied? In addition, we should not forget that the army discussed

here was the army of Republika Srpska, which was created on 12 May 1992.

118
CR 2006/9, p. 20, para. 35 (Karagiannakis). - 63 -

13. On this point, misusing the evidence rela ting to 1991 and the war in Croatia, counsel for

the Applicant tried to create the impr ession that the army General Mladi ć referred to was the JNA.

To do so, MsKaragiannakis first referred to four points of evidence which indeed suggested that

119
Arkan’s and Šešelj’s troops acted together w ith the JNA in fighting in Croatia in 1991 and only

then did she invoke the already me ntioned sentence of General Mladi ć from 1992, which was

obviously taken out of context.

14. The further example of the misrepresentation of the evidence relating to 1991 is

contained in the following two paragraphs of Ms Karagiannakis’s pleading:

“10. The Trial Chamber in the Milošević case has found, in its Decision on the
Motion for Judgement on Acquittal, that President Miloševi ć had both de jure and
de facto control over the Serbian MUP and its arm of the State Security Service, the

Serbian DB.

11. International diplomats confirmed this control. According to

Ambassador Okun, during meetings a nd negotiations with members of the
international community, President Miloševi ć was understood to represent all of the
forces operating in Bosnia and Herzegovina, including paramilitary forces.” 120

15. The first paragraph is pr obably accurate, but there is abso lutely nothing strange in the

fact that a president of a State had control over that State’s police, in cluding the State security

forces.

16. The second paragraph is, however, more probl ematic. MsKaragiannakis declared that

international diplomats, and in particular Amb assador Okun, confirmed the control that Miloševi ć

supposedly had over paramilitary forces operating in Bosnia and Herzegovina.

17. Ambassador Herbert Okun, who served as Special Adviser and the Deputy to the

Personal Envoy of the United Nations Secretary- General between 1991 and 1997, testified in the

Milošević trial before the ICTY. The relevant part of his statement, in which he indeed said that

Milošević had been understood to represent paramilitary units, related merely to the signing of the

Cessation of Hostilities Agreement, or Gene va Accord, signed on 23November 1991 by

Slobodan Milošević, Franjo Tudjman and Cyrus Vance 121. This Agreement had been signed five

119
See CR 2006/9, p. 19, paras. 32-34 (Karagiannakis).
120
Ibid, pp. 12-13, para. 10-11 (Karagiannakis); emphasis added.
12ICTY, Prosecutor v. Milošević, Decision on Motion for Judgement of Acquittal, 16 June 2004, para. 275 and
footnotes 712 and 713. - 64 -

months before the conflict in Bosnia and Herze govina began and it related exclusively to cessation

of hostilities in Croatia. It is completely inexplicable how Mr.Miloševi ć’s signature on an

agreement concerning another conflict, and another earlier period of time, can be used as evidence

of his control of paramilitaries operating in Bo snia and Herzegovina. This is not what

AmbassadorOkun said and this is not what the ICTY Trial Chamber in the Milošević case

concluded.

18. Madam President, it would be useful at this point to say that it is our submission that,

while wars in Croatia and in Bosnia and Her zegovina were undoubtedly connected to a certain

extent and some comparative analysis is inevitable, these two wars cannot be portrayed as one and,

in particular, conclusions in this case cannot be drawn by simple analogy with what happened in

Croatia at one point in time. Especially if that point in time dates back to 1991, before the conflict

in Bosnia and Herzegovina even began.

19. If we accept, however, that in 1991 paramilitary forces were indeed formally

incorporated in the JNA in Croatia ⎯ although not always successfully ⎯ in 1992 they were

neither incorporated in the JNA, nor did they act under the control of the JNA or the Respondent.

As of 6 April 1992, when Bosnia and Herzegovina had been formally recognized by the European

States and the United States of America, the JNA was in withdrawal from the territory of the

Applicant. The withdrawal began after the negotiations to keep the JNA in Bosnia and

Herzegovina for a transition period had failed and it had ended on 19 May 1992, three days before

the Applicant was admitted to the United Nations. During this period, the Respondent was not in

control of events. On 7April 1992, the Assemb ly of Serbian People in Bosnia and Herzegovina

declared in Banja Luka the independence of th e Serbian republic of Bosnia and Herzegovina,

which later became Republika Srpska. As my colleague IgorOluji ć explained, on 15 April 1992

the Presidency of the Serbian republic of Bosn ia and Herzegovina adopted a decision announcing

an imminent threat of war and the mobilization of the Territorial Defence in the entire territory of

122
the Serbian republic of Bosnia and Herzegovina . Thus, it was this new entity, a self-proclaimed

State to be, that was now trying to take cont rol. The JNA was falling apart; the Muslims and

12Decision of the Serbian republic of Bosnia a nd Herzegovina of 15 April 1992, quoted in ICTY, Prosecutor v.

Brdjanin, Military Developments in the Bosanska Krajina ⎯ 1992, A Background Study, Expert Report by Ewan Brown,
para. 1.77. - 65 -

Croats were leaving its ranks and Serbs ⎯ 90percent of them being from Bosnia and

Herzegovina ⎯ rather listened to orders coming from Pale than to those coming from Belgrade.

20. It is in these circumstances that the pa ramilitary groups were formed and the vast

majority of them were made up of Serbs fro m Bosnia and Herzegovina. The absence of any

control of the army over these units, and the army’s negative attitude towards them, is best seen

from the document of 12May 1992, which Serbia and Montenegro submitted on 18January this

123
year . Mr. van den Biesen already read this docum ent in his opening speech in the second round,

so I do not have to read it again. In a later re port on paramilitary formations, prepared by the Main

Staff of the army of Republika Srpska, the para militaries were portrayed as “mostly composed of

individuals of low moral quality, and in many cases of persons previously prosecuted for crimes

and offences” 12. Among their ranks there was a “lack of cohesive unity, which renders them

125
almost worthless in combat terms” and where “the law of the jungle” ruled . All these quotations

are from the report of the Main Staff, which is a document in the ICTY materials. The Trial

Chamber in the Brdjanin case before the ICTY gave a description of one such unit: the unit which

126
Ms Karagiannakis claimed was under the control of the Respondent :

“On 3 April 1992, the Serbian Defence Forces (‘SOS’), an armed formation

composed of disgruntled soldiers returni ng from the front in Croatia as well as local
thugs and criminals, surrounded the munici pal building of Banja Luka and set up
barricades in town. An announcement was made through the media, introducing the

SOS as a ‘group of Serbian patriots, JNA members, reservists, volunteers and citizens
of Banja Luka’ who were taking action ‘because of the false peacemaking of the SDA,

the HDZ and opposition parties, which hav127 besmirched the memories of the dead
citizens of Banja Luka and Krajina’.”

21. It is also in these circumstances that some paramilitary groups from Serbia and

Montenegro arrived. Upon their arrival they acted either independently or under the orders of the

local Bosnian Serbs. However, the volunteers or paramilitaries who came from Serbia did not join

only Serbian ranks. General PhillipeMorillon test ified before the ICTY that several hundred

123
Information Strictly Confidential No. 1614-585 of 12 May 1992, Unpublic documents submitted by Serbia and
Montenegro on 18 January 2006, doc. No. 3.
124
Report on Paramilitary Formations in the Territory of the Serbian Republic of BiH of 28 July 1992, quoted in
ICTY, Prosecutor v. Brdjanin, Military Developments in the Bosanska Krajina ⎯ 1992, A Background Study, Expert
Report by Ewan Brown, para. 2.59.
125
Loc. cit.
12See CR 2006/9, pp. 20-21, paras. 36-40 (Karagiannakis).

12ICTY, Prosecutor v. Brdjanin, Judgement of 1 September 2004, para. 98. - 66 -

Muslims from Sandzak, which is in Serbia and Mont enegro, fought on the side of the government

forces in Bosnia and Herzegovina 128.

22. In some cases, paramilitaries from Serbia we re invited by leaders of Republika Srpska.

For example, a source much referred to by the Applicant, Arkan’s former secretary, B-129, testified

in the Milošević trial that Arkan himself had said that he had gone to Bijeljina at the invitation of

Biljana Plavšić 129.

23. Of course, the Applicant did not omit to quote another statement of B-129, when the

witness said that her former boss “would always say that without orders from the state security, the

Tigers were not deployed anywhere” 130. The Applicant, however, omitted to quote a later

exchange between B-129 and the accused Miloševi ć, when the witness corrected her previous

statement:

“Q: I see. He [meaning Arkan] spoke with pride of the fact that Biljana Plavšić

had called him to fight there. Well, then was he sent there by the Serbian state
security, or upon the invitation of Biljana Plavšić?

A: Are you talking about Bijeljina?

Q: Yes, I’m talking about Bijeljina.

A: She invited him, yes.

Q: So it wasn’t the state ⎯ the Serbian state security that sent him there.

A: I was only speaking about the Serbian state security during the period that I
131
was employed at the headquarters.”

24. As the Court would appreciate, the testim ony of B-129 is obviously full of controversial

statements, almost entirely circumstantial and of very limited evidential value. I will come back to

this issue later.

25. For now, Madam President, we will stay w ith the events from 1992 and look at another

source much used by the Applicant: the sentencing judgment in the ICTY case of Prosecutor v.

Miroslav Deronji ć, the statement of facts on which the judgment was based, as well as

Mr. Deronjić’s witness statement in his own case.

12ICTY, Prosecutor v. Milošević, Testimony of General Phillipe Morillon, 12 February 2004, p. 32012.
129
Ibid., testimony of B-129, 16 and 17 April 2003, pp. 19424-19425, 19532-19535.
13Ibid, pp. 19425-19426, quotation in CR 2006/6, p. 13, para. 10 (Dauban).

13Ibid., testimony of B-129, 17 April 2003, p. 19533. - 67 -

26. Miroslav Deronji ć was the President of the Bratunac Crisis Staff from the end of

April 1992. He pleaded guilty before the ICTY in connection with crimes committed in the village

of Glogova, a village located in the Bratunac municipality. In accordance with the plea agreement,

he was found guilty of the crime of persecution, incorporating the killing of 64Bosnian Muslim

132
civilians in Glogova . For his crimes, he was sentenced to ten years of imprisonment.

27. In his dissenting opinion in relation to the sentencing judgment,

Judge Wolfgang Schomburg, the presiding judge in the Deronjić case, regretted the sentence as not

proportional to the crimes it was based on. According to Judge Schomburg, the accused deserved a

133
sentence of no less than 20 years of imprisonment .

28. JudgeSchomburg was very unsatisfied with the guilty plea that the accused had

concluded with the prosecution, including that the guilty plea was not combined with a warning

that the accused had to tell the truth, wh en called as a witness before the Tribunal 134.

Judge Schomburg was equally critical of the con cessions made by the prosecution to Mr. Deronji ć.

One that deserves special attention is Mr.Deronji ć’s role in the Srebrenica massacre. On this

matter the judge wrote:

“14.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)Finally, having carefully read all the Accused’s statements and testimonies, it
remains extremely questionable to me, why Miroslav Deronijc was not indicted as

a co-perpetrator in the joint criminal en terprise leading to the horrific massacre at
Srebrenica in 1995. It transpires on a prima facie basis that there should be
enough reason to indict Miroslav Deronji ć for his participation in that massacre,

based only on his own confession, and leave it finally to a Trial Chamber to decide
whether a criminal responsibility can be established beyond reasonable doubt.
Apparently Miroslav Deronijc was not afra id that this could happen, as he stated

himself [and the judge quotes Mr. Deronijc]:

‘I was told after all the investigations were completed, that

indictments in relation to Srebrenica we re being dropped against me . . .
[T]he Prosecution stated that... they have no intention of prosecuting
me further for the events in Srebrenica.’” 135

132ICTY, Prosecutor v. Miroslav Deronjić, Sentencing Judgement, 30 March 2004.
133
Ibid., dissenting opinion of Judge Schomburg, paras. 1-2.
134
Ibid, paras. 10-12.
135Ibid, para. 14 (d). - 68 -

29. Finally, it is of particular interest to this Court what is the evidential value of

Mr. Deronjić’s plea agreement and his various testimonies before different trial chambers of the

ICTY. This is how Judge Schomburg saw it, and I quote him again:

“15. The forensic value of his statements and testimonies is extremely limited,

until the Accused is prepared to clarify whic h details are true and which are not. The
Accused himself admitted: ‘So I did not give an entirely truthful statement . . . But I
do not agree that those statements are co mpletely untrue. They are partially

untrue . . .’ I can not attach any mitigating weight to such an unsound mixture of truth
and lies, creating more confusion than assi stance in the Tribun al’s search for the
136
truth.”

30. Madam President, it was this Miroslav Deronji ć, a man who escaped prosecution for the

massacre in Srebrenica through the guilty plea he concluded with the ICTY and a man who was

obviously found to have lied before different trial chambers of the ICTY, it was this

Miroslav Deronjić whom the Applicant referred to no less than 39 times in their oral pleadings.

31. On the question of paramilitaries, their arrival in the municipality of Bratunac and their

connections with the Respondent, the statement of facts in Mr.Deronji ć’s case, drafted by the

ICTY Prosecution, indeed reads that “volunteers from the SFRY crossed the Drina River with the

137
co-operation of the SFRY authorities and entered Bratunac on 17 April 1992” . According to the

same statement, “a second group of volunteers from Se rbia arrived later” (on an unspecified date)

138
and “the commander of this group of volunt eers was an individual nicknamed ‘Peki’” . The

statement of facts goes on to assert: “the arriva l of the volunteers from Serbia was agreed upon by

the top leadership of the Republika Srpska and the SFRY” 139. These passages from Mr. Deronjić’s

140
statement of facts were later included in the sentencing judgment and most of them were referred

to by Ms Dauban 141and then referred back by Ms Karagiannakis 14.

136Ibid, para. 15.
137
ICTY, Prosecutor v. Miroslav Deronjić, Factual basis for guilty plea, 30 September 2003, paras. 14-15.
138
Ibid, para. 23.
139
Ibid, para. 24.
140ICTY, Prosecutor v. Deronjić, Sentencing Judgement, 30 March 2004, paras. 69, 70, 80 and 81.

141See CR 2006/6, pp. 21-23, paras. 33-39 (Dauban).
142
See CR 2006/9, p. 11, para. 5 (Karagiannakis). - 69 -

32. A careful examination of Mr. Deronji ć’s statement of facts, the sentencing judgment and

his various testimonies before different trial chambers 143 reveals that the statement of facts has a

number of serious defects:

(a) first of all, Mr. Deronji ć has never offered any credible e xplanation on how and when was the

arrival of volunteers to Republika Srpska and the Bratunac municipality “agreed upon by the

top leadership of the Republika Srpska and the SFRY” –– in his own words. In fact, during his

testimonies Mr.Deronji ć contradicted himself by saying that volunteers were brought to

Bratunac by a Bosnian Serb named Goran Zeki ć, a member of the Main Board of the Serbian

Democratic Party in Bosnia and Herzegovina and one of the main political figures in

Bratunac 144,

(b) Mr.Deronji ć has further never offered any explan ation on how these volunteers “crossed the

Drina River with the co-operation of the SFRY authorities”,

(c) finally, he has never named any unit of volunteers that had participated in the attack on village

of Glogova, or any volunteer unit present in the municipality of Bratunac. The only thing

Mr. Deronjić could recollect was that one unit had been commanded by an individual named

“Peki”.

33. It seems that the Applicant tried to reme dy at least this last defect of Mr.Deronji ć’s

account of the events in Bratunac. Thus, MsDauban declared: “These ‘volunteers’ are more

paramilitary formations including units of Arkan’ s Tigers, the White Eagles and Šešelj’s men.” 145

To prove this claim, Ms Dauban referred to para graph 74 of the sentencing judgment. I sincerely

hope that this reference was done by mistake, since paragraph 74 of the sentencing judgment

neither mentions any of the name d paramilitary units, nor deals with paramilitary units in the first

146
place. (The full text of this paragraph is given in the footnote with my pleading , and the Court

143
Other than in his own case, Mr. Deronji ć so far also testified in cases against Miloševi ć, Krajišnik, Krstić and
Blagojević.
144See ICTY, Prosecutor v. Deronjić, Sentencing Judgement, 30 March 2004, para. 70, and also testimony of

Mr. Deronjić in his own case, 27 January 2004, p. 140.
145CR 2006/6, p. 23, para. 37 (Dauban).

146The paragraph quoted by Ms Dauban reads: - 70 -

may see that there is no mention of the param ilitaries.) As I have explained, Mr.Deronji ć has

never named any of the volunteer units that were present in Bratunac, so it seems after all that the

Applicant again wrongly presented the evidence.

34. The third source referred to extensively by the Applicant is the ICTY indictment against

two former State security officials of the Se rbian Ministry of Interior, Jovica Staniši ć and

Franko Simatović. This indictment cannot be used as evidence as such, since it only lists

accusations, without referring to particular ev idence to prove those accusations. Later on,

tomorrow, I will show on a particular example wh y this indictment cannot be used as reliable

evidence before this Court.

35. In conclusion, the evidence presented by the Applicant that relates to events in the spring

of 1992 failed to meet the required standard of proof and in any case failed to prove the

responsibility of the Respondent for paramilitary actions. This is for the following reasons:

(a) the regulations concerning the engagement of th e paramilitaries in the JNA relate to Croatia

and the year 1991. The Applicant wrongly presente d them to be applicable also in 1992 in

Bosnia and Herzegovina. All the conclusions that the Applicant tried to draw from these

regulations, even if considered accurate, could only be relevant for the war in Croatia in 1991.

In spite of that, the Applicant constantly misrepresented the evidence from 1991 to make wrong

conclusions in this case;

(b) the other evidence used by th e Applicant is of a highly dubi ous character. The two main

sources are: testimony of Arkan’s former secretary B-129 and various statements of

Miroslav Deronjić. Both of them are either entirely circumstantial or packed with serious flaws

and inconsistencies. In addition, both sources are occasionally misrepresented by the

Applicant;

“On or about 25 April 1992, armoured personnel carriers (APCs), military trucks and police cars
arrived in Glogova. Soldiers who were part of thconvoy declared themselves to be members of the
Novi Sad Corps from Serbia, who had arrived in order to gather weapons. Najdan Mladenovic of the TO
was present with the group, as well as the following Bratunac policemen: Milutin Milošević, Chief of the
Bratunac police forces (also known as the Secretariat of InternalAffairs, hereinafter ‘SUP’),
Miladin Jokic, Vidoje Radovic, Dragan Ilic, Dragan Vasiljevic, Sredoje Stevic, Vukovic, and Tesic. This
group looked for weapons in Glogova and issued an ulti matum to the villagers that the weapons were to
be handed in two days later.” (ICTY,Prosecutor v. Deronjić, Sentencing Judgement, 30 March 2004,

para. 74.) - 71 -

(c) the Applicant has failed to prove that any of the paramilitary units active in Bosnia and

Herzegovina in 1992 were under the control of the Respondent. If these units were under any

control, they were under the control of the ne w self-proclaimed State of the Bosnian Serbs.

However, the Applicant has failed to prove even that, and all the evidence only points to the

absence of any control over the paramilitary units.

Madam President, I believe this is a good poi nt where I could stop, and I will continue

tomorrow with my presentation.

The PRESIDENT: Yes, that is very helpful. Thank you, Mr.Cvetkovi ć. The Court will

now rise until tomorrow morning.

The Court rose at 6.10 p.m.

___________

Document Long Title

Public sitting held on Tuesday 2 May 2006, at 3 p.m., at the Peace Palace, President Higgins presiding

Links