Corrigé
Corrected
CR 2014/13
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Monday 10 March 2014, at 10 a.m., at the Peace Palace,
President Tomka presiding,
in the case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Croatia v. Serbia)
________________
VERBATIM RECORD
________________
ANNÉE 2014
Audience publique
tenue le lundi 10 mars 2014, à 10 heures, au Palais de la Paix,
sous la présidence de M. Tomka, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide (Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: President Tomka
Vice-President Sepúlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judges ad hoc Vukas
Kreća
Registrar Couvreur
- 3 -
Présents : M. Tomka, président
M. Sepúlveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
MM. Vukas
Kreća, juges ad hoc
M. Couvreur, greffier
- 4 -
The Government of the Republic of Croatia is represented by:
Ms Vesna Crnić-Grotić, Professor of International Law, University of Rijeka,
as Agent;
H.E. Ms AndrejaMetelko-Zgombić, Ambassador, Director General for EU Law, International Law
and Consular Affairs, Ministry of Foreign and European Affairs, Zagreb,
Ms Jana Špero, Head of Sector, Ministry of Justice, Zagreb,
Mr. Davorin Lapaš, Professor of International Law, University of Zagreb,
as Co-Agents;
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. PhilippeSands, Q.C., Professor of Law, University College London, Barrister, Matrix
Chambers, London,
Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Professorial Lecturer in Law,
Yale Law School, New Haven,
Mr. Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,
Ms Maja Seršić, Professor of International Law, University of Zagreb,
Ms Kate Cook, Barrister, Matrix Chambers, London
Ms Anjolie Singh, Member of the Indian Bar, Delhi,
Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London
as Counsel and Advocates;
Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,
Ms Helen Law, Barrister, Matrix Chambers, London
Mr. Edward Craven, Barrister, Matrix Chambers, London,
as Counsel;
H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,
H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the Kingdom of the
Netherlands, The Hague,
as Members of the Delegation; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
Mme Vesna Crnić-Grotić, professeur de droit international à l’Université de Rijeka,
comme agent ;
S. Exc. Mme Andreja Metelko -Zgombić, ambassadeur, directeur général de la division de droit
communautaire et international et des affaires consulaires du ministère des affaires étrangères et
des affaires européennes,
Mme Jana Špero, chef de secteur au ministère de la justice,
M. Davorin Lapaš, professeur de droit international à l’Université de Zagreb,
comme coagents ;
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l’Univers ité de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Philippe Sands, Q.C., professeur de droit, University College de Londres, avocat,
Matrix Chambers (Londres),
M. Mirjan R. D amaška, professeur de droit émérite de l’Université de Yale (chaire Sterling),
chargé d’enseignement à l’Université de Yale,
M. Keir Starmer, Q.C., avocat, Doughty Street Chambers (Londres),
Mme Maja Seršić, professeur de droit international à l’Université de Zagreb,
Mme Kate Cook, avocat, Matrix Chambers (Londres),
Mme Anjolie Singh, membre du barreau indien (Delhi),
Mme Blinne Ní Ghrálaigh, avocat, Matrix Chambers (Londres),
comme conseils et avocats ;
M. Luka Mišetić, avocat, Law Offices of Luka Misetic (Chicago),
Mme Helen Law, avocat, Matrix Chambers (Londres),
M. Edward Craven, avocat, Matrix Chambers (Londres),
comme conseils ;
S. Exc. M. Orsat Miljenić, ministre de la justice de la République de Croatie,
S. Exc. Mme Vesela Mrđen Korać, ambassadeur de la République de Croatie auprès du Royaume
des Pays-Bas,
comme membres de la délégation ; - 6 -
Mr. Remi Reichhold, Administrative Assistant, Matrix Chambers, London,
Ms Ruth Kennedy, LL.M., Administrative Assistant, University College London,
as Advisers;
Ms Sanda Šimić Petrinjak, Head of Department, Ministry of Justice,
Ms Sedina Dubravčić, Head of Department, Ministry of Justice,
Ms Klaudia Sabljak, Ministry of Justice,
Ms Zrinka Salaj, Ministry of Justice,
Mr. Tomislav Boršić, Ministry of Justice,
Mr. Albert Graho, Ministry of Justice,
Mr. Nikica Barić, Croatian Institute of History, Zagreb,
Ms Maja Kovač, Head of Service, Ministry of Justice,
Ms Katherine O’Byrne, Doughty Street Chambers,
Mr. Rowan Nicholson, Associate, Lauterpacht Centre for International Law, Unive rsity of
Cambridge,
as Assistants;
Ms Victoria Taylor, International Mapping, Maryland,
as Technical Assistant.
The Government of the Republic of Serbia is represented by:
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands, former Legal Adviser of the Ministry of Foreign Affairs,
as Agent;
Mr. William Schabas, O.C., M.R.I.A., Professor of International Law, Middlesex University
(London) and Professor of International Criminal Law and Human Rights, Leiden University,
Mr. AndreasZimmermann, LL.M. (Harvard), Professor of International Law, University of
Potsdam, Director of the Potsdam Centre of Human Rights, Member of the Permanent Court of
Arbitration,
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Professor of International Law, University of
Glasgow, - 7 -
M. Remi Reichhold, assistant administratif, Matrix Chambers (Londres),
Mme Ruth Kennedy, LL.M., assistante administrative, University College de Londres,
comme conseillers ;
Mme Sanda Šimić Petrinjak, chef de département au ministère de la justice,
Mme Sedina Dubravčić, chef de département au ministère de la justice,
Mme Klaudia Sabljak, ministère de la justice,
Mme Zrinka Salaj, ministère de la justice,
M. Tomislav Boršić, ministère de la justice,
M. Albert Graho, ministère de la justice,
M. Nikica Barić, Institut croate d’histoire (Zagreb),
Mme Maja Kovač, chef de département au ministère de la justice,
Mme Katherine O’Byrne, Doughty Street Chambers,
M. Rowan Nicholson, Associate au Lauterpacht Center for International Law de l’Université de
Cambridge,
comme assistants ;
Mme Victoria Taylor, International Mapping (Maryland),
comme assistante technique.
Le Gouvernement de la République de Serbie est représenté par :
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas, ancien conseiller juridique au ministère des affaires étrangères,
comme agent ;
M. William Schabas, O.C., membre de la Royal Irish Academy, professeur de droit international à
la Middlesex University (Londres) et professeur de droit pénal international et des droits de
l’homme à l’Université de Leyde,
M. Andreas Zimmermann, LL.M. (Université de Harvard), professeur de droit international à
l’Université de Potsdam, directeur du centre des droits de l’homme de l’Université de Potsdam,
membre de la Cour permanente d’arbitrage,
M. Christian J. Tams, LL.M., Ph.D. (Université de Cambridge), professeur de droit international à
l’Université de Glasgow, - 8 -
Mr. Wayne Jordash, Q.C., Barrister, Doughty Street Chambers, London, Partner at Global Rights
Compliance,
Mr. Novak Lukić, Attorney at Law, Belgrade, former President of the Association of the Defense
Counsel practising before the ICTY,
Mr. Dušan Ignjatović, LL.M. (Notre Dame), Attorney at Law, Belgrade,
as Counsel and Advocates;
H.E. Mr. Petar Vico, Ambassador of the Republic of Serbia to the Kingdom of the Netherlands,
Mr. Veljko Odalović, Secretary-General of the Government of the Republic of Serbia, President of
the Commission for Missing Persons,
as Members of the Delegation;
Ms Tatiana Bachvarova, LL.M . (London School of Economics and Political Science), LL.M.
(St. Kliment Ohridski), Ph.D. candidate (Middlesex University), Judge, Sofia District Court,
Bulgaria,
Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of the Prosecutor for
War Crimes of the Republic of Serbia,
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,
Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden (candidate)),
Mr. Georgios Andriotis, LL.M. (Leiden),
as Advisers. - 9 -
M. Wayne Jordash, Q.C., avocat, Doughty Street Chambers (Londres), associé du cabinet Global
Rights Compliance,
M. Novak Lukić, avocat, Belgrade, ancien président de l’association des conseils de la défense
exerçant devant le TPIY,
M. Dušan Ignjatović, LL.M. (Université Notre Dame), avocat, Belgrade,
comme conseils et avocats ;
S. Exc. M. Petar Vico, ambassadeur de la République de Serbie auprès du Royaume des Pays-Bas,
M. Veljko Odalović, secrétaire général du Gouvernement de la République de Serbie, président de
la commission pour les personnes disparues,
comme membres de la délégation ;
Mme Tatiana Bachvarova, LL.M. (London School of Economics and Political Science),
LL.M. (Université St. Kliment Ohridski), doctorante (Middlesex U niversity); juge au tribunal
de district de Sofia (Bulgarie),
M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,
M. Igor Olujić, avocat, Belgrade,
M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,
M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),
M. Georgios Andriotis, LL.M. (Université de Leyde),
comme conseillers. - 10 -
The PRESIDENT: Good morning, please be seated. The sitting is now open. The Court
meets today to hear Serbia begin its first round of oral argument. I give the floor to
Mr. Saša Obradović, Agent of Serbia. You have the floor, Sir.
Mr. OBRADOVIĆ:
INTRODUCTION
1. Good morning, Mr. President, distinguished Members of the Court; may i t please the
Court. It is a great honour to appear once again before the principal judicial organ of the United
Nations as a representative of the Republic of Serbia. At the outset, I would like also to express the
sincere respect for our colleagues representing the Republic of Croatia.
Historical significance of the case at hand
2. Mr. President, the honour and professional privilege I had representing Serbia in several
cases before the International Court of Justice could not be at the same time a pri vilege for my
country and its people. The cases in which Serbia was a party were of an exceptional gravity:
these were cases born out of the 1990s conflicts in the former Yugoslavia, which left tragic
consequences to all Yugoslav peoples and opened impor tant issues of State responsibility. This
case is the final one in that sequence. In this instant case Serbia expects more than in any of its
previous cases that suffering of the Serb people should be also recognized, get due attention, and
a remedy.
3. Today it is well known that the conflict in Croatia was followed by grave breaches of
international humanitarian law. There is no doubt that Croats suffered a lot in that conflict. This
case is an opportunity for all of us to remind ourselves of their tragedy, and our colleagues from the
other side were working hard in that course last week. However, the Croatian war caused grave
sufferings to Serbs as well, those Serbs who were citizens of the Socialist Republic of Croatia, but
who, facing the separatist demands of the Croatian political leadership and the gradual dissolution
of the former Yugoslavia, decided to establish their own national entity known as the Republic of
Serbian Krajina. We hoped that something would be said in the Great Hall of Justice on their
tragedy, but at the sittings last week the Krajina Serbs were not mentioned. This is not fair to them. - 11 -
What happened in Croatia in the 1990s cannot be reduced to a simplified picture showing a sole
perpetrator and a sole victim of genocide.
4. I would like to remind you, distinguished Members of the Court, of the words of my
predecessor in this case, Professor Tibor Varady, who said:
“Misdeeds of one side spurred misdeeds of the other side. At various times,
different participants in the conflict got stronger and those who were stronger
inflicted more suffering. . . . It has always been known that misdeeds did take place
in Croatia. Some of them amounted to serious crimes. Today, we know more about
the character and about the di mensions of these crimes and we also know more
about the perpetrators. But it has also become known that crimes committed against
Croats did not reach let alone pass the threshold of genocide. What happened is
1
not even prima facie genocide.”
5. In the name of the Government and the People of the Republic of Serbia, I reiterate the
sincere regret for all victims of the war and of the crimes committed during the armed conflict in
Croatia, whatever legal characterization of those crimes is adopted, and whatever the national and
ethnic origin of the victims. Each victim deserves full respect and remembrance.
6. Mr. President, the case at hand concerns the crime of genocide only, because the Court’s
jurisdiction is based exclusively on Article IX of the Convention on the Prevention and Punishment
2
of the Crime of Genocide . It seems somehow that this case has always been in the shade of its
more important predecessor, the case Bosnia -Herzegovina v. Serbia-Montenegro, which followed
the complex and horrific conflict in Bosnia that caused several times more victims than the conflict
in Croatia. In the Bosnia case, the Court refused to adopt a simplified characterization of the
conflict as one genocidal campaign the Court denied that genocide was com mitted throughout
Bosnia-Herzegovina, saving that legal characterization only for the notorious massacre of men
from Srebrenica that occurred in July 1995 . The legal discussion contained in the Judgment of
26 February 2007 quickly became an authoritative jurisprudence for the further interpretations of
the Genocide Convention by other international courts and tribunals.
7. However, the case that Croatia, as the Applicant, submitted to the Court at the time of the
NATO bombing campaign against Serbia seemed artificial from its very beginning. Not only that
1
CR 2008/8, p. 17, paras. 8 and 9 (Varady).
2Hereinafter “the Genocide Convention”.
3
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I); hereinafter “Bosnia”. - 12 -
no serious commentator from Croatia has ever believed that Croats were victims of genocide, as we
4
emphasized in our Rejoinder but, moreover, the Croatian Application, from the mere historical
point of view, seems highly disingenuous and even cynical. In the Application instituting
proceedings, Croatia in addition to the allegations on severe crimes committed against members
of the Croatian national and ethnic group also claimed that Serbia is resp onsible for the exodus
of the “Croatian citizens of Serb ethnicity” in 1995, accusing thus Serbia for the engagement “in
conduct amounting to second round of ‘ethnic cleansing’, in violation of the Genocide
Convention” 5. In other words, Serbs, according t o the Applicant’s initial claim, conducted ethnic
cleansing of other Serbs that should be adjudged as genocide.
8. This accusation for sui-genocide does not stay alone as a paradox of the Croatian case. I
have a duty to inform the Court that the people of Serbia today mainly believe that the Croatian
false Application is a kind of the historical irony. Namely, both Croats and Serbs knew very well
what genocide was in the former Yugoslavia, both peoples were educated about the horrific
crimes committed in Jasenovac, Jadovno, Jastrebarsko and other notorious Ustasha concentration
camps of World War II (WW II). The tragic experience of the Serb people in the Nazi Independent
State of Croatia and genocide committed against Serbs, Jews and Roma people from 1941 to 1945
are described in Serbia’s Counter -Memorial as part of the factual background of this case . Our
7
presentation is supported by the reliable historical sources . A chronology of the Ustasha
movement after WW II, which was considered as a perman ent terrorist threat to Tito’s Yugoslavia
from 1945 to 1990, is presented in Annex 8 with the Counter -Memorial. Without this piece of
information, one can fully understand neither the significance of the 1990s appearance of
Dr. FranjoTudjman as a new pol itical leader in Croatia who advocated the reconciliation between
Croatian communists and neo-Ustasha movements, nor the uprising reaction of the Serbs in Croatia
8
to that policy .
4
Rejoinder of Serbia (RS), paras. 16-18.
5
Application instituting proceedings, par a. 2. See also para. 33.
6Counter-Memorial of Serbia (CMS), paras. 397-420.
7
See CMS, fn. 260–293, pp. 137–144 and Anns. 1–7 to the Counter-Memorial.
8
CMS, paras. 426-442. - 13 -
9. Although no acknowledgment of the WW II genocide is to be found anywher e in the
Croatian written pleadings, the Respondent observes that the Applicant has neither contested nor
denied the presentation of facts concerning the Nazi Government in Croatia between 1941 and
1945, its intent to destroy the Serb people under its authority, and the existence of the Ustasha’s
view that Serbs were a threat to the Croatian national identity. Consequently, the Respondent
considers that the historical background related to the crime of genocide committed in the
independent State of Croatia is therefore not in dispute between the Parties.
10. Mr. President, for the sake of clarity, I also have a duty to emphasize that presentation of
the factual background relevant to both the claim of Croatia and the counter -claim of Serbia should
not lead to a conclusion that these two peoples have a history of hatred and endless conflicts only.
Not at all. In spite of many unfortunate events, Serbs and Croats lived in brotherhood for many
decades. It is also a historical fact. That friendship was esp ecially strong at the end of World
War I (WWI), when the Croatian progressive leaders decided to join the Kingdom of Serbia
creating so a unique State for South Slavs. It was further confirmed by their joint struggle for
freedom in World War II (WWII), when the Serb rebels against the Ustasha terror were supported
by Croatian compatriots in the partisan units.
11. Thus, our adversary in this case is neither the Croatian people nor the Croatian State, but
the Croatian extreme nationalism. By challenging the false claim and rigid attitudes of the Croatian
Government instituting these proceedings, we will challenge extreme nationalism as such, each and
every nationalism, including Serbian, when it is capable to cause suffering to other peoples.
The Applicant’s claim
12. On the other hand, the Croatian claim is from the formal point of view extremely
serious. The Court is requested to adjudge and declare that Serbia is responsible for violations of
Articles II and III of the Genocide Convention, as wel l as Articles I and IV related to the
obligations to prevent and punish the acts of genocide. The Applicant claims that the whole
political conflict with the complex historical process of dissolution of the former Yugoslavia, as
well as the entire militar y affair with all crimes committed against the members of the Croat - 14 -
national and ethnic group, must be seen as one and unique crime genocide. The Applicant’s
9
allegations cover a wide time-frame from 1991 to 1995 .
13. Now, allow me please to present the response of the Republic of Serbia in brief.
(a) Croatia did not produce to the Court any item of evidence, a document or a witness statement,
which contains a proof of the existence of dolus specialis of the crime of genocide on the side
of the leaders hip of the Republic of Serbia, or the Yugoslav Peoples Army (JNA), or Serbs
from Croatia. The Applicant’s approach to the method of proof in this case is not in
accordance with the well -established practice of this Court in the cases of exceptional gravit y,
as we demonstrated in our written pleadings 10. This will be further elaborated today.
(b) Even if we take the allegations of the Applicant at the highest without taking a look at the
probative weight of evidence produced in support of those allegations the legal elements of
the crime of genocide, or of any other act punishable pursuant to Article III of the Genocide
11
Convention, cannot be reasonably inferred from those allegations .
(c) In addition, the Respondent considers that it cannot be responsi ble for acts and omissions that
allegedly occurred prior to its existence as a State, i.e. prior to 27 April 1992, when the Federal
Republic of Yugoslavia 12 was created, whatever the legal characterizations of those acts and
13
omissions are . This is particularly significant if one bears in mind that a vast majority of the
incidents alleged in the Memorial took place in 1991, while a very few of them are alleged to
14
have taken place after April 1992 . The allegations on those later incidents cannot be taken,
even prima facie, as genocide.
(d) Even if we completely ignore the previous argument, the Respondent considers that the acts
conducted in 1991 as well as all later incidents cannot be attributed to the Republic of
15
Serbia in accordance with international law on State responsibility . Those who committed the
9Memorial of Croatia (MC), paras. 1.03 and 1.05.
10
See CMS, Chap. III, “Questionsof Proof”; RS, Chap. III, “Evidence produced by the Applicant”.
11
See CMS, Chap. VIII; RS, Chap. IV.
12CR 2008/8, p. 15, para. 2 (Varady).
13See CMS, Chap. IV; RS, Chap. II.
14
See RS, para. 427, with subsequent fn. 432.
15See CMS, Chap. IX; RS, Chap. V. - 15 -
crimes in Croatia were neither de jure nor de facto organs of the Republic of Serbia. Nor were
the crimes committed on the instructions of, under the direction or control of , our State, as the
recent practice of the International Criminal Tribunal for the former Yugoslavia clearly shows.
14. We believed that our legal arguments were reasonable and convincing enough, and that
the new democratic Government of Croatia would withdraw its application lacking any basis in fact
and in law. Unfortunately, this was proven not to be the case.
The counter-claim
15. In December 2009, Serbia filed its Counter -Memorial which contained the
counter-claim. The Respondent presented many crimes committed by the Croatian governmental
forces from 1991 to 1995, which were of the same nature as the crimes described by the Applicant.
However, the final acts of mass killing committed during “ Operation Storm” in August 1995 and
thereafter, in our opinion, went beyond the legal characterizations of other atrocities conducted in
that conflict. It is our task in these proceedings to present convincing evidence and legal arguments
that the acts of the Croatian Government in “Operation Storm” possess all required elements of the
crime of genocide, including its specific mens rea : intent to destroy the members of the protected
group, in whole or in part, as such.
16. Mr. President, the consequences of “Operation Storm” are severe and lasting. According
to the records of the Centre for Collecting Documents and Information Veritas, 1,719 Serbs were
killed during and after th at operation 1. In total, 6,361 ethnic Serbs were killed or went missing
17
during the entire conflict . The Commission of the Republic of Serbia for Miss ing Persons has
still been searching for more than 1,700 persons who went missing during the conflict in Croatia
(around 600 of them in 1991, among whom were not only Serbs, but also a significant number of
other ethnicities of the former Yugoslavia, who w ere the members of the JNA; then, around
110 Serbs in 1992; 35 in 1993; five in 1994, and around 990 Serbs who went missing in 1995,
during operations “Flash” and “Storm”). More than 400 corpses exhumed by the Croatian organs
have still been waiting to be identified. We hope it will finally be done when these hearings are
1The list is publicly available ahttp://www.veritas.org.rs/wp-content/uploads/2014/02/Oluja-direktne-zrt…-
rev2014.pdf.
1Statement of witness-expert Savo Štrbac (4.2.2). - 16 -
over. Although the Serbian Commission for Missing Persons provided further information
concerning several hundred graves on the territory of Croatia where the Serb victims had been
buried, the Croatian organs are the last in the region in conducting the process of the requested
exhumations.
17. According to the Report of the U nited Nations Secretary-General of 18 October 1995,
approximately 200,000 Krajina Serbs fled from the region attacked by the Croatian Governmental
forces in August 1995 18. It was just a final stage of their decline in Croatia during the twentieth
century. In 1931, Serbs made up almost 20 per cent of the total population of Croatia as a part of
the Kingdom of Yugoslavia. According to the 2011 Croatian census, Serbs are now at the level of
19
4.36 per cent of the total number of the Croatian population . The current number of ethnic Serbs
in Croatia is three times less than their number in 1991.
18. Members of the Court, this inconvenient truth of statistical data, as well as our
presentation of criminal acts committed during and after “Operation Storm”, deserved more serious
answer than we got from the Applicant in the written proceedings. In their response, we found,
inter alia, an allegation that the Serb refugees were killed by other Serbs, namely the Bosnian Serbs
20
Army , or that the Serbs left Croatia for “a number of reasons including difficult living conditions,
21
poverty and general insecurity in the Republic of Serbian Krajina” . No remorse. Nor forgiveness
for Serbs from Krajina.
19. Having in mind the nature of the Croatian response to our counter -claim, one can easily
imagine the position of Serbs in Croatia today. While the relationship between these two
neighbouring States has been significantly improved in many fields, including the highest political
level, the co -operation in the fields of economy and culture the general position of Serbs in
22
Croatia is still vulnerable. They are exposed to the h ate speech from time to time . The official
Cyrillic signs on the municipal buildings in several towns have recently been demolished 2. In
18United Nations doc. A/50/648, para. 27.
19
Available at the official web site of the Croatian Bureau of Statistics:
http://www.dzs.hr/Hrv/censuses/census2011/results/htm/usp_03_HR.htm.
20Additional Pleading of Croatia (APC), para. 3.69.
21APC, para. 3.47.
22
For example, see http://danas.net.hr/crna-kronika/foto-sramotan-natpis-osvanuo-na-sred-t….
23See http://www.bbc.co.uk/news/world-europe-23934098. - 17 -
December 2012, 17 years after Operation Storm, the President of Croatia, His
Excellency Mr. Ivo Josipović, publicly admitted that the Croatian courts had not convicted as yet
anyone for any single murder committed in that operation 24. Moreover, Operation Storm is still
25
celebrated in Croatia as a public holiday . This case before the world’s highest judicial forum will
help that the truth about the tragedy of the Serb people in Croatia is revealed.
The Serbian legal team
20. Mr. President, allow me to introduce now our counsel and advocates who will further
present our legal arguments in detail. Those are
Professor William Schabas from the Middlesex University, London, and the Leiden University;
Professor Andreas Zimmermann from the University of Potsdam;
Professor Christian Tams from the University of Glasgow;
Mr. Novak Lukić, Attorney at Law from Belgrade , former President of the Association of
Defense Counsel practising before the ICTY;
Mr. Wayne Jordash, Barrister from London, who is also the ICTY defense counsel; and
Mr. Dušan Ignjatović, Attorney at Law from Belgrade.
I would also mention, with grati tude, members of our team who significantly contributed in
preparation of our written pleadings Mr. Svetislav Rabrenović, Senior Adviser at the Office of
the Prosecutor for war crimes of the Republic of Serbia, and Mr. Igor Olujić,Attorney at Law from
Belgrade, as well as those who could not be with us until the end of these long -lasting
proceedings I would mention only the most important of them: our former Agent,
Professor Tibor Varady, and two Co -Agents at various times, Mr. Vladimir Djerić and
Mr. Vladimir Cvetković.
The schedule of presentation
21. Following my introductory words, Professor Schabas will address the Court concerning
the interpretation of the Genocide Convention in light of the Court’s 2007 Judgment and
2Available on
http://www.b92.net/info/vesti/index.php?yyyy=2012&mm=12&dd=07&nav_categ… in Serbian;
translation submitted to the Court on 8 Aug. 2013.
2See CMS, paras. 1473-1476. - 18 -
subsequent developments. Our response to the Applicant’s claim will be continued by addressing
the issue of evidence. Tomorrow, Professors Zimmermann and Tams will address the important
question of jurisdiction ratione temporis in relation to the conduct preceding 27 April 1992, as well
as in relation to the lack of standing of Croatia regarding the events prior to 8 1992.er
Thereafter, Professor Schabas will continue with the response to the Applicant’s arguments related
to the legal characterization of the allegations prese nted in the written and oral pleadings, apart
from the question of probative weight of the evidence produced in support of those allegations.
Finally, our counsel Lukić and Ignjatović will reopen the last line of our arguments concerning the
issue of attribution. After their presentation, I will indicate further order of our arguments related
to the counter-claim.
Mr. President, I respectfully ask you to give the floor now to Professor William Schabas.
The PRESIDENT: Thank you, Mr. Obradović, and I call now on
Professor William Schabas. You have the floor, Sir.
Mr. SCHABAS:
INTERPRETATION OF THE G ENOCIDE CONVENTION IN LIGHT OF THE 2007 JUDGMENT
OF THE INTERNATIONAL COURT OF JUSTICE IN THEB OSNIA CASE
AND SUBSEQUENT D EVELOPMENTS
1. Thank you Mr. President. Mr. President, Members of the Court, I am most grateful to you
for allowing me the honour of appearing before you today.
2. As Mr. Obradović has reminded you, this is not the first time that the Republic of Serbia
finds itself before the Inter national Court of Justice (ICJ) in a case for which the jurisdiction is
based on the compromissory clause of the Convention on the Prevention and Punishment of the
Crime of Genocide. Indeed, no other State has been so involved in litigation concerning the
interpretation and application of the 1948 Convention, be it as applicant, or respondent, or
counter-claimant. As the successor of the Socialist Federal Republic of Yugoslavia, the Republic
of Serbia can also take some credit for the adoption and ento force of the Convention. As
early as 9 December 1946, at the first session of the United Nations General Assembly, when
resolution 96 (I) on the crime of genocide was being debated, Professor Milan Bartos, representing - 19 -
26
Yugoslavia, took the floor in the Sixth Committee to ask that the draft be adopted unanimously .
Later, during the negotiations of the text of the Convention, Yugoslavia was deeply concerned
about the narrowness of the definition of genocide that was being proposed and in particular the
exclusion of the concept of cultural genocide, leading it to abstain in the vote on the final draft in
27
the Sixth Committee . Of course, Yugoslavia subsequently voted in favour of the Convention as a
28
whole, which was adopted unanimously . Yugoslavia signed the Convention a few days after its
adoption by the General Assembly. And it was one of the 20 States whose ratification led to the
entry into force of the Convention in January 1951.
3. Speaking in the General Assembly in December 1946 on behalf of Y ugoslavia,
29
Professor Bartos recalled “the great sufferings of the Jewish and Slav Peoples” in this context .
There can be little doubt that the terrible atrocities perpetrated by the Nazis and their collaborators
during the Second World War directed at the peoples who made up the former Yugoslavia, and
particularly those inflicted upon the most vulnerable minorities, the Jews and the Roma, enhanced
Yugoslavia’s determined support for the adoption of what some have described as the first human
rights treaty of the United Nations system.
4. Sadly, when the Convention was adopted on 9 December 1948, at the Palais de Chaillot in
Paris, it was premature to believe that violent ethnic conflict in the region was entirely a thing of
the past. Yet the tragic wars that consumed the former Yugoslavia during the 1990s are also
increasingly distant. Today, the Republic of Serbia affirms its commitment to live in peace with its
neighbours within the framework of international law. The dispute that is now before the IC J is
about the rather distant past. It is not about the present and certainly not about the future.
5. Mr. President, Members of the Court, not only does the 1948 Genocide Convention sit at
the heart of the present proceedings, as a matter of law , it is the only basis upon which the Court
may operate. Much of the factual substrate that concerns the Court in this case has been explored
in various judgments and rulings of the International Criminal Tribunal for the former Yugoslavia
26
UN doc. A/C.6/127.
27UN doc. A/C.6/SR.133.
28UN doc. A/PV.179.
29
UN doc. A/C.6/127. - 20 -
(ICTY). While there is a great deal of relevance in that material, the Court should never lose sight
of the fact that there is no jurisdiction here over war crimes and crimes against humanity. A major
difference with the litigation before the ICTY is that when that court is n ot satisfied, according to
the highest standards of evidence, that there is responsibility for genocide, it may nevertheless
reach conclusions about other crimes within the Tribunal’s jurisdiction that constitute serious
violations of international humanitarian law or crimes against humanity. That is not the case before
the ICJ.
6. Our attention inexorably focuses on the nebulous zones surrounding the core of the
definition of genocide. Depending upon the interpretation that one gives to the Convention
provisions, certain acts may or may not fall within its ambit. The other categories of international
crime, specifically war crimes and crimes against humanity, were already recognized at the time of
adoption of the Genoci de Convention. Such crimes under international law may overlap slightly
with the definitional provisions of the Genocide Convention. They may also help to frame it,
assisting us in understanding both what is included within the scope of genocide as well as what is
not included.
7. In its Counter-Memorial, filed in December 2009, the Republic of Serbia reviewed various
aspects of the Convention provisions that have a bearing on the present litigation. At the time, the
definitive authority on the subject was the 26 February 2007 Judgment of this honourable Court in
the Bosnia case (Bosnia and Herzegovina v. Serbia). Nevertheless, there have been developments
in the case law of other tribunals, including the ICTY and the International Criminal Tribunal for
Rwanda (ICTR), as well as some early decisions from the International Criminal Court (ICC). The
European Court of Human Rights (ECHR) has also issued relevant judgments dealing with the case
law of this Court on the subject of genocide. And, with the Court’s indulgence, it is to that material
that I propose to address myself this morning.
8. May I first, however, speak to a few of the issues raised in Prof essor Sands most learned
presentation of early last week. It will not surprise anyone here if I say that Prof essor Sands and
myself, as academics and friends, share many ideas about the international law of human rights. At
the same time, inevitably, we differ on some points in our analysis and interpretation. - 21 -
9. Mr. President, Members of the Court, Professor Sands virtually invited the Court to revise
an important finding in its 2007 Judgment with respect to the interpretative addition of the word
“substantial” as a modifier of the words “in part” in whole or in part, in whole or in substantial
part. He reviewed a number of source s, suggesting that the notion originated with
Benjamin Whitaker, a United Nations expert, in 1985, and then slowly crept this is the word
30
used by Professor Sands into the work of the International Law Commission, and then the case
law of the ad hoc tribunals, and finally the 2007 Judgment of this Court. I think that in his
eagerness to state the case for removing the jurisprudential modifier “ substantial”, Professor Sands
has not given adequate attention to the materials going back as far as the adopt ion of the
Convention that support the view he is contesting . On this point I can do no better than cite a
favourite source of his, the great man himself, Raphael Lemkin. In a submission to a United States
Senate committee in 1950 as part of an effort to promote ratification of the Convention, Lemkin
31
wrote that “the destruction in part must be of a substantial nature so as to affect the entirety ”
you have the citation on the screen.
10. The problem with Professor Sands critique is that the words “ in part” require some kind
of modifier and he has nothing to propose. If we remove the word “substantial”, what do we put in
its place? Let me note, in passing, that the “in whole or in part” language actually first appeared in
the preamble of the 1946 General Assembly resolution, and was not an invention of the drafting
process of the Convention in 1947 and 1948. The preamble to the 1946 resolution said that
“[m]any instances of such crimes of genocide have occurred when racial, religious, political and
other groups have been destroyed, entirely or in part ”. Note here, Mr. President, Members of the
Court, that the resolution seems to be concerned with the result, not the intent. It seems to suggest
that the intent to destroy the group should aim at the group as a whole although it may not always
fully succeed. I would be the first to acknowledge that the drafting history and the surrounding
materials do not provide us with an entirely clear view. That must be in the nature of a document
that results from diplomatic negotiations, where equivocal terms result from what some have called
“constructive ambiguity”. But that being said, the weight of authority over the past two decades,
3CR 2014/6, p. 19, para. 23 (Sands).
3Two Executive Sessions of the Senate ForeignRelations Committee, Historical Series 370 (1976). - 22 -
culminating in the 2007 decision of this Court, has confirmed the place of “ substantial” before
“in part”. It does not seem at all advisable to start to reconsider this point now. In the 2007 ruling,
the Court said that the requirement of substantiality “ is demanded by the very nature of the crime
32
of genocide” . There , the Cour t was looking at context, at object and purpose, and not at the
drafting history. Article 31, not Article 32. The general rule of interpretation, not the subsidiary
means.
11. Mr. President, Members of the Court, much of this involves a vision of the context of
adoption of the Convention. It was indeed a seminal period in the development of international
criminal law generally. On this, let me present the matter slightly differently than Professor Sands
did. He reminded us that Lemkin was dissatisfied with the Nuremberg judgment. Indeed, it
provoked Lemkin to lobby the first session of the General Assembly, in an effort that resulted in
resolution 96. Lemkin has been reported as saying that his real objection to the Nuremberg
judgment was its refusal to recognize what he described as “peacetime genocide” 33. It is in the
article that Professor Sands cited the other day. It was Lemkin’s insistence upon codifying an
international crime applicable in peacetime that explains the words “whether committed in time of
peace or in time of war ” that we find in Article 1 of the Convention. The unhappiness with
Nuremberg stemmed from the decision of the four powers that drafted the Charter of the
International Military Tribunal to restrict the scope of crimes against humanity to acts associated
with aggressive war, a view confirmed in the judgment of the Nuremberg Tribunal. When
Ernesto Dihigo of Cuba took the floor in the Sixth Committee at the first session of the General
Assembly to propose the genocide resolu tion, he explained that the Nuremberg trial had precluded
punishment of certain crimes of genocide because they had been committed before the beginning of
34
the war, and it was this gap in international law that the resolution was intended to address .
12. What international criminal law specialists call the “nexus”, that is, the connection
between crimes against humanity and armed conflict , had been included at the four -power London
32
Application of the Convention on the Prevention and Punishment of the Crime of Gen ocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 126, para. 198; hereafter “Bosnia”.
33Henry T. King Jr., “Origins of the Genocide Convention”, (2008) 40 Case Western Reserve Journal of
International Law 13, p. 13.
34
UN doc. A/C.6/SR.22. - 23 -
Conference, where the Charter of the International Military Tribunal was adopted, out of concern
that without any such limitation on the scope of crimes against humanity, these four great powers,
victorious in the war, might also find themselves exposed to prosecution for acts perpetrated on
their own territories and against thei r own citizens. This can be seen clearly in the record s of the
London Conference 35 and the footnote to the transcript will show the authority for this. It would
have been quite incredible if only a few years later, when the Genocide Convention was being
negotiated in the Sixth Committee of the General Assembly, that these same powers would agree to
a treaty of general application containing a broadly defined atrocity crime punishable in peacetime
when they had refused to do so at London and at Nuremberg. The result, obviously, can be found
in the definition of genocide that they adopted and that this honourable Court is being called upon,
once again, to interpret. It is an extreme form of crime against humanity, the only crime against
humanity that the international community was prepared to accept in 1948 as being subject to
prosecution as an international crime when perpetrated in peacetime as well as in time of war. And
because of this, it is not at all unreasonable that genocide has been called “the crime of crimes”.
13. In recent times, over the past two decades, during the contemporary renaissance of
international criminal law, it has become crystal clear that the nexus between crimes against
humanity and armed conflict no longer exists. Crimes against humanity have come into their own
as the central and most robust form of atrocity crime. It is the relationship between crimes against
humanity and genocide, both historically and in the modern -day understanding, that helps us to
interpret the two concepts. G enocide and crimes against humanity are both punishable at the
ad hoc tribunals. Both are punishable at the International Criminal Court. Both are contemplated
by the responsibility to protect. Both are acknowledged as crimes under customary international
law. Today, where they part paths is on only a few points, of which the most important is probably
Article IX of the Genocide Convention. The door to the International Court of Justice can still be
more easily opened , or unlocked, by a cha rge of genocide rather than one of crimes against
humanity or, for that matter, war crimes. That does not mean, however, that this Court should
convert the Convention on Genocide into a Convention on Crimes Against Humanity, as I think
3For example, “Minutes of Conference Session of 23 July 1945”, in Report of Robert H. Jackson, United States
Representative to the International Conference on Military Trials, Washington: US Government Printing Office, 1949,
p. 331. - 24 -
Croatia is requesti ng, simply because we are appalled about many atrocities that are more
accurately described using other terms: crimes against humanity or war crimes.
14. Mr. President, Members of the Court, t he oral presentations of Croatia hinted at an
original, indeed a novel, interpretation of the Genocide Convention about which I have a few
comments. In his discussion of the interpretation of the Convention last week, Professor Sands
said the following:
“Croatia’s approach in these proceedings has been consistent: the requisite
intent, which is to destroy a group in whole or in part , is not to be equated with the
intent to physically destroy the entirety of the relevant group, but rather it is to stop it
from functioning as a unit.” 36
The authority that he pointed us to, in the footnote to his oral presentation, was Croatia’s Memorial
and Croatia’s Reply. In the Memorial we find something similar but we do not find the word
“functioning” . The same is the case for the Reply . And we do not have any authority in the
Memorial or in the Reply to assist us in figuring out where this term “functioning” comes from.
Last Friday, Sir Keir Starmer returned to this when he said that destruction of a group does not
require extermination of all the m embers of the group, or even a “substantial part” of a group but,
39
and I quote, the perpetrators “must attempt to destroy the group as a functioning entity” .
15. Mr. President, Members of the Court, I have looked again at the relevant case law, the
travaux and the academic literature, and it is my impression that this “functioning entity” notion
constitutes an original interpretation by the Croatian team in this case. I cannot be entirely sure,
because Croatia has not provided us with references to assist in locating the so urce of this notion.
Possibly, some support for the idea might be found in the Krstić Appeals Chamber decision, but on
closer examination I do not think this stands up to scrutiny. You will recall that at Srebrenica,
which was the case dealt with in Krstić , the women and children were removed from the town.
They were not physically exterminated. The Trial Chamber held that the murder of the men would
“inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica ” 40.
36
CR 2014/6, p. 15, para. 13 (Sands); italics in the original.
37
Memorial of Croatia (MC), para. 7.44.
38Reply of Croatia (RC), para. 8.9.
39
CR 2014/12, p. 13, para. 1 (Starmer).
40
Prosecutor v. Krstić (IT-98-33-T), Judgment, 2 August 2001, para. 595. - 25 -
This conclusion was endorsed by the majority of t he Appeals Chamber. It said: “Thi s is the type
41
of physical destruction the Genocide Convention is designed to prevent .” If there is any doubt
about what the Appeals Chamber meant, one need only turn to Judge Shahabuddeen’s dissent on
42
this point . Croatia will find support for its posit ion in Judge Shahabuddeen’s dissent, but not in
the opinion of the majority and not, I dare add, in the Judgment of this Court in 2007.
16. Does the “functioning entity” idea have any merit? It seems to be a repackaged version
of cultural genocide, a con cept that was favoured by Raphael Lemkin but that was very clearly
excluded from the Convention except, as Professor Sands has carefully noted, for the act of forcible
transfer of children: the fifth act of genocide. Let me invite the Court to reflect for a minute or two
on the two archetypal genocides of the twentieth century. Were the Jews in Germany a
“functioning entity”? They were in reality quite an integrated community, participating at all levels
of German society. There were religious and comm unity organizations, of course, but there was a
huge number of secularized and assimilated Jews as well. I think most German Jews in the 1930s
would find the idea that they were a “functioning entity” to be quite puzzling. Much the same can
be said about the Rwandan Tutsi. They were essentially integrated with the Hutu population.
There was much intermarriage. In many cases, it was impossible to distinguish Hutu from Tutsi in
the absence of the notorious identity cards. In 1994, nobody would have de scribed the Rwandan
Tutsi as a “functioning entity”. Indeed, are we not entirely convinced about the label genocide with
respect to the German Jews and the Rwandan Tutsi precisely because this was not a case of an
attack on a “functioning entity” but rather something much more arbitrary, an attack directed at the
destruction of individuals regardless of the existence of an “entity” or a “community”, and solely
because of their ethnic or racial identity? Croatia has not provided the Court with an adequate
development of this notion of “functioning entity” and my suggestion would be that the Court put
this idea to the side. It requires much more thought and study before it should be seriously
considered.
4Prosecutor v. Krstić (IT-98-33-A), Judgment, 19 April 2004, para. 29.
4Prosecutor v. Krstić (IT-98-33-A), Judgment, 19 April 2004; dissenting opinion of Judge Shahabuddeen,
paras. 45-54. - 26 -
17. Mr. President, Members of the Court, l et me now turn to the post -February 2007 period.
Last week we heard talk of reactions to the J udgment of this Court but outside of a legal
framework. W hat should interest us here is not misunderstandings of the Court’s findings that
come from the uninformed but rather the treatment they have received within the international legal
community.
European Court of Human Rights
18. The European Court of Human Rights was the first international judicial body to give
consideration to the 2007 J udgment of the ICJ so that is where I will begin. In July 2007, in
Jorgić v. Germany, a seven-judge Chamber of the ECHR cited the February 2007 Judgment of this
Court. It was a case involving the application of Article 7 of the European Convention on Human
Rights. Article 7, you wil l recall, enshrines the principle of legality and is very similar to
provisions in other international instruments, such as Article 11, paragraph 2, of the Universal
Declaration of Human Rights and Article 15 of the International Covenant on Civil and Poli tical
Rights. Jorgić had been prosecuted in Germany pursuant to German national law for crimes
perpetrated in Bosnia and Herzegovina during the 1992- 1995 war, including genocide. He was
convicted for acts of “ethnic cleansing” pursuant to what the European Court described as a “wide
interpretation of the ‘ intent to destroy ’” as set out in Article 2 of the Genocide Convention 43.
Before the European Court Jorgić argued that the German courts did not respect the principle of
legality.
19. In reviewing the r elevant legal sources, something that is a typical feature of its
44
judgments, the ECHR cited an excerpt from paragraph 190 of this Court’s Judgment . That is the
famous paragraph where the notion of “ethnic cleansing” is discussed. I have the citation in my
notes but it was presented to you last week and it was on a slide and it is well known, so I do not
45
propose to read it aloud. This is paragraph 45 of the Judgment of 2007 .
20. The ECHR noted that the case law of the ICTY supported a narrow i nterpretation
whereby genocide “ as defined in public international law, comprised only acts aimed at the
43
Jorgić v. Germany, No. 74613/01, para. 112, ECHR 2007-III.
44Bosnia, p. 122, para. 190.
45
Jorgić v. Germany, No. 74613/01, para. 45, ECHR 2007-III. - 27 -
46
physical or biological destruction of a protected group” . But it said that the Tribunal’s
interpretation of the scope of genocide, as well as other decisions taken by nati onal and
international courts, and it said, “ in particular the International Court of Justice”, had been
delivered subsequent to the commission of his offences, and consequently “the applicant could not
rely on this interpretation being take n by the German courts in respect of German law at the
47
material time, that is, when he committed his offences” . Thus, in the Jorgić case the European
Court held that a conviction by German courts based upon a broader construction of the scope of
genocide than that espoused by the ICTY as well as by t his Court in 2007 did not violate the
principle of legality. The scope of the European Court’s judgment can be easily misunderstood ,
and has been. It is in no way inconsistent with the February 2007 ruling of th e Court. It merely
acknowledges the varying interpretations of the crime of genocide that might have existed in
national law prior to the February 2007 ruling in the Bosnia case.
21. There is also a lengthy reference to the 2007 Judgment of this Court in an admissibility
decision of the ECHR issued in July 2013. The application was submitted by an association of
survivors of the Srebrenica massacre. It was directed against the Netherlands and concerned
conduct attributed to the Dutch units of United Nations peacekeeping troops. A seven -judge
Chamber of the European Court reviewed a range of legal materials concerning Srebrenica
including relevant judgments of various courts, such as the ICTY, the Human Rights Chamber of
Bosnia and Herzegovina, and t he ICJ. The admissibility decision contains a five -paragraph
48
overview of the February 2007 J udgment of this Court . Finally, the ECHR declared the case
inadmissible based upon the immunities of the United Nations . Aside from a summary of the
2007 Judgment in the Bosnia case, presented as background, there is no other relevant reference to
the findings of this Court and its J udgment did not bear upon the decision of the European Court.
46
Jorgić v. Germany, No. 74613/01, para. 112, ECHR 2007-III.
4Jorgić v. Germany, No. 74613/01, para. 112, ECHR 2007-III.
48
Stichting Mothers of Srebrenica and Others v. the Netherlands (Dec.), No. 65542/12, paras. 49-53,
11 June 2013. - 28 -
Of course, in that case the ECHR was strongly influenced by rulings o f this Court respecting
immunities, notably the recent decision in Jurisdictional Immunities of the State . 49
22. There are some summary references to the 2007 J udgment by a Chamber of the
European Court in a very recent case December 2013 directed aga inst Switzerland
50
concerning genocide denial . The 2007 J udgment was also cited by the ECHR with respect to
statements on State respo nsibility, attribution and the “ effective control” criterion 5. In addition,
the 1996 interlocutory ruling in the same case was cited by a judge of the ECHR in a separate
52
opinion as authority for the proposition that human rights obligations are not by nature reciprocal .
International Criminal Tribunal for Rwanda
23. Mr. President, Members of the Court, I turn now to t he International Criminal Tribunal
for Rwanda . T he International Criminal Tribunal for Rwanda has issued many decisions
concerning genocide, at both the trial and the appeals stage, but as a general rule these have
contributed only modestly to the interpretation of Articles 2 and 3 of the Genocide Convention. In
several of the Appeals Chamber j udgements decided since February 2007, the defence has raised
very broad and often unsubstantiated allegations that the Trial Chamber had misapplied the law on
genocide 53. In others, issues relating to the definition of genocide do not arise at all 54. Similarly,
there is little of interest in terms of legal development in the Trial Chamber j udgements issued in
49
Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), Judgment, I.C.J. Reports
2012 (I), cited at Stichting Mother s of Srebrenica and Others v. the Netherlands (Dec.), No. 65542/12, para. 158,
11 June 2013.
50
Perinçek v. Switzerland, No. 27510/08, 17 Dec. 2013, para. 23, 83, 116.
51Catan and Others v. the Republic of Moldova and Russia [GC], Nos. 43370/04, 8252/05 and 1 8454/06,
paras. 76, 96, 115, 19 Oct. 2012.
52Vallianatos and Others v. Greece [GC], Nos. 29381/09 and 32684/09, p artly concurring, partly dissenting
opinion of Judge Pinto de Albuquerque, 7 Nov. 2013.
53Simba v. Prosecutor (ICTR-01-76-A), Judgment, 27 Nov. 2007, paras. 256-270; Bagosora and Nsengiyumva v.
Prosecutor (ICTR-98-41-A), Judgment, 14 Dec. 2011, paras. 382-386.
54
Karera v. Prosecutor (ICTR-01-74-A), Judgment, 2 Feb. 2009; Bikindi v. Prosecutor (ICTR-01-72-A),
Judgment, 18 Mar. 2010; Prosecutor v. Rukundo (ICTR-2001-70-A), Judgment, 20 Oct. 2010; Zigiranyirazo v.
Prosecutor (ICTR-01-73-A), Judgment, 18 Dec. 2010; Muvunyi v. Prosecutor (ICTR-2000-55A-A), Judgment,
1 Apr. 2011; Mugenzi and Mugiraneza v. Prosecutor (ICTR-99-50-A), Judgment, 4 Feb. 2013. - 29 -
55
recent years . These decisions do not address any new questions concerning interpretation of the
definition of genocide, as a general rule. Typically, they consist of rather perfunctory recitals of
the case law and, for that reason, I will not give them any particular attention here.
24. It may seem astonishing that this Tribunal, whose work has been devoted very largely to
the application of the 1948 Genocide Convention, does not appear to have ever made reference to
the 2007 Judgment of the ICJ. Indeed, it has virtually never referred to the case law of the ICJ at
56
all . There is one obscure mention of the 1996 Preliminary Objections ruling in the Bosnia case,
on the erga omnes nature of the obligations in the 1948 Convention, but that is only because one of
the Parties cited it, prompting the Court to acknowledge the reference in its summary of the
positions taken by the Parties 57.
25. Mr. President, Members of the Court, t he fact that there is little of interest in the
post-February 2007 decisions of the ICTR may only reflect the fact that its case law, at least as the
definition of the crime of genocide is concerned, had already become quite developed and detailed,
leaving little room for dispute or challenge. Many of the issues and controversies that were so
important in the context of the former Yugoslavia, such as the demarcation between genocide and
ethnic cleansing and the significance of forcible displacement, never seriously arose in the
55
Prosecutor v. François Karera (ICTR-01-74-T), Judg ment and Sentence, 7 Dec. 2007, paras. 533-549;
Prosecutor v. Nchamihigo (ICTR-01-63-T), Judg ment and Sentence, 12 Nov. 2008, paras. 329 -336; Prosecutor v.
Bikindi (ICTR-01-72-T), Judgment, 2 Dec. 2008, paras. 404-426; Prosecutor v. Théoneste Bagosora et al.
(ICTR-98-41-T), Judgment and Sentence, 18 Dec. 2008, paras. 2084- 2163; Prosecutor v. Zigiranyirazo
(ICTR-01-73-T), Judgment, 18 Dec. 2008, paras. 396- 428; Prosecutor v. Renzaho (ICTR-97-31-T), Judgment and
Sentence, 14 July 2009, paras. 760-780; Prosecutor v. Nsengimana ( ICTR-01-69-T), Judg ment, 17 Nov. 2009,
paras. 831-841; Prosecutor v. Rukundo ( ICTR-2001-70-T), Judgment, 27 Feb. 2009, paras. 555 -576; P rosecutor v.
Ndindiliyimana et al. (ICTR-00-56-T), Judgment and Sentence, 17 May 2011, paras. 2044-2085; Prosecutor v.
Nyiramasuhuko et al . ( ICTR-98-42-T), Judgment and Sentence, 24 June 2011, paras. 5653- 6038; Prosecutor v.
Bizimungu et al. (ICTR-99-50 -T), Judgment and Sentence, 30 Sept. 2011, paras. 1954-1987; Prosecutor v. Karemera
et al. (ICTR-98-44-T), Judgment and Sentence, 2 Feb. 2012, paras. 1575-1672.
5Prosecutor v. Bagaragaza (ICTR-2005-86-11bis), Decision on Prosecutor’s Request for Referral of the
Indictment to the Kingdom of the Netherlands, 13 Apr. 2007, para. 23, fn. 32, citing Applicability of Article VI,
Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion,I.C.J. Reports
1989, p. 177, para. 47; Prosecutor v. Rwamakuba (ICTR-98-44C-I), Decision on Appropriate Remedy, 31 Jan. 2007,
para. 48, fn. 71, citing Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Opinion, I.C.J. Reports 1980, p. 73 and Reparation for Injuries Suffered in the Service of the United Nations, Advisory
Opinion, I.C.J. Reports 1949 , p. 174; Prosecutor v. Karemera et al. (ICTR-98-44-T), Decision on Nzirorera’s
Preliminary Motion to Dismiss the Indictment for Lack of Jurisdiction: Chapter VII of the United Nations Charter,
29 Mar. 2004, para. 10, fn. 4, citing Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion , I.C.J. Reports 1971 ,
p. 16; Prosecutor v. Karemera et al. (ICTR-98-44-PT), Decision on Severance of Andr é Rwamakuba and Amendments
of the Indictment , 7 Dec. 2004, para. 22, fn. 22, citing c ase concerning the Northern Cameroons (Cameroon v. United
Kingdom), Preliminary Objections , Judgment, I.C.J. Reports 1963, p. 15 and Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 253.
5Prosecutor v. Bagaragaza (ICTR-2005-86-11bis), Decision on Prosecutor’s Request for Referral of the
Indictment to the Kingdom of the Netherlands, 13 Apr. 2007, para. 23, fn. 33. - 30 -
Rwandan context. During the period that I am considering today, t he major contribution by the
Rwanda Tribunal to the d evelopment of the law of g enocide addressed the crime of direct and
public incitement , a matter that is not of any great relevance to the present proceedings.
26. One j udgement of the Appeals Chamber of the ICTR, issued in March 2008, is of
importance for its discussion of the actus reus of the second act of genocide, that is, causing serious
bodily and mental harm to members of the group. The Cha mber said that in its previous
Judgements it had not “ squarely addressed the definition of such harm” 59. It said “quintessential
examples of serious bodily harm are torture, rape, and non- fatal physical violence that causes
disfigurement or serious injury to the external or internal organs ” 60. The Appeals Chamber said
that serious mental harm includes “more than minor or temporary impairment of mental faculties
61
such as the infliction of strong fear or terror, intimidation or threat ” . Noting that nearly all
convictions for genocide on the basis of causing serious bodily or mental harm had involved killing
or rape, the Chamber said that “ [t]o support a conviction for genocide, the bodily harm or the
mental harm inflicted on members of a group must be of such a serious nature as to threaten its
62
destruction in whole or in part ” . In a footnote to this remark, the Ch amber noted that in a
decision concerning a charge of crimes against humanity the Trial Chamber had said it was “not
satisfied that [the removal of a church roof depriving Tutsis of an effective hiding place]
amount[ed] to an act of similar seriousness to other enumerated acts in the Article” 63. The Appeals
Chamber also cited the commentary on the Code of Crimes in the 1996 report of the International
Law Commission 64.
27. The Appeals Chamber of the Rwanda Tribunal in this decision referred to statements in
the trial judgment that the accused, who was a Catholic priest, had refused to allow Tutsi refugees
58
Nahimana et al. v. Prosecutor (ICTR-99-52-A), Judgment, 28 Nov.2007.
59Prosecutor v. Seromba (ICTR-2001-66-A), Judgment, 12 Mar. 2008, para. 46.
60Ibid.
61
Prosecutor v. Seromba (ICTR-2001-66-A), Judgment, 12 Mar. 2008, para. 46.
62
Prosecutor v. Seromba (ICTR-2001-66-A), Judgment, 12 Mar. 2008, para. 46.
63Prosecutor v. Seromba (ICTR-2001-66-A), Judgment, 12 Mar. 2008, para. 46, fn. 117, citing Prosecutor v.
Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 Dec. 2004, para. 855.
64The reference in Seromba is to the Report of the International Law Commission (ILC) on the Work of its
Forty-Eighth Session 6 May-26 July 1996, United Nations, Official Records of the General Assembly , ILC, 51st Sess.,
Supp. No. 10, p. 91, United Nations doc. A/51/10 (1996). However the precise reference appears to be erroneous;the
statement to which the Appeals Chamber seems to have been referring appears on p. 46. - 31 -
to get food from a banana plantation, something that contributed to their physical weakening, and
that “his order prohibiting refugees from getting food fr om the banana plantation, his refusal to
celebrate mass in Nyange church, and his decision to expel employees and Tutsi refugees” had
65
facilitated the victims “ living in a constant state of anxiety ” . Mr. President, Members of the
Court, I should point out that I am not giving you all of the quote unquote, they will be in the
transcript, but it is a little heavy to mention it every time. I am reading the quotations, however.
The Appeals Chamber mentioned what they called the “parsimonious statements” of the Trial
Chamber about the acts comprising the serious bodily and mental harm, concluding that it could
not “equate nebulous invocations of ‘ weakening’ and ‘anxiety’ with the heinous crimes that
obviously constitute serious bodily or mental harm, such as r ape and torture” 6. And these words
67
were endorsed in the July 2013 ruling of the Appeals Chamber of the ICTY .
28. In another decision, the issue of proof of genocidal intent prompted the Appeals
Chamber of the ICTR to recall that in the absence of direct evidence,
“a perpetrator’s intent to commit genocide may be inferred from relevant facts and
circumstances, including the general context of the perpetration of other culpable acts
systematically directed against the same group, the scale of atrocities committed, the
systematic targeting of victims on account of their membership in a particular group,
68
or the repetition of destructive and discriminatory acts” .
The Chamber noted that even facts and events that arose subsequent to the perpetration of the crime
itself could be considered as part of the context for this purpose . 69
29. In Prosecutor v. Gatete, a judgment issued in October 2012, the Appeals Chamber
confirmed that in entering convictions for both genocide per se and conspiracy to commit genoci de
the rule against cumulative convictions was not breached. The Chamber reasoned that conspiracy
did not involve commission of the crime as such. It held that the two crimes, genocide and
conspiracy, were distinct, and autonomous and that “the crime of genocide has a materially distinct
actus reus from the crime of conspiracy to commit genocide and both crimes are based on different
underlying conduct”. According to the Appeals Chamber, “ [t]he crime of genocide requires the
65
Prosecutor v. Seromba (ICTR-2001-66-A), Judgment, 12 Mar. 2008, para. 47.
66
Prosecutor v. Seromba (ICTR-2001-66-A), Judgment, 12 Mar. 2008, para. 48.
67Prosecutor v. Karadžić (IT-95-5/18-AR98bis.l), Judgment, 11 July 2013, para. 32, fn. 83.
68
Hategekimana v. Prosecutor (ICTR-00-55B-A), Judgment, 8 May 2012, para. 133.
69
Hategekimana v. Prosecutor (ICTR-00-55B-A), Judgment, 8 May 2012, para. 133. - 32 -
commission of one of the enum erated acts in Article 2 (2) of the Statute, while the crime of
conspiracy to commit genocide requires the act of entering into an agreement to commit
70
genocide” . And so it overturned the Trial Chamber’s holding to convict the accused of genocide
but not to enter a conviction for conspiracy because, it said
“by convicting Gatete only of genocide while he was also found criminally
responsible for conspiracy to commit genocide, the Trial Chamber failed to hold him
responsible for the totality of his criminal c71duct, which included entering into the
unlawful agreement to commit genocide” .
30. The Appeals Chamber in that decision also explained that by recogni zing conspiracy to
commit genocide as an inchoate crime, the Genocide Convention “ aims to prevent the commission
of genocide”. However, it said
“another reason for criminalising conspiracy to commit genocide is to punish the
collaboration of a group of individuals resolved to commit genocide. The danger
represented by such collaboration itself justi fies the incrimination of acts of
conspiracy, irrespective of whether the substantive crime of genocide has been
72
committed.”
31. One member of the Appeals Chamber, Judge Agius, dissented on th ese points.
Judge Agius had been the presiding judge in the Popović trial before the ICTY (and I will return to
the Popović case in a few minutes when I discuss the case law of the ICTY). In his dissenting
opinion in Gatete, Judge Agius said that he did not disagree with the majority’s statement of the
legal principles concerning the distinct nature of the crime of conspiracy to commit genocide.
However, he considered that entering a conviction for conspiracy in addition to one of genocide
73
per se raised problems of fairness to the accused . He said he disagreed wi th the majority’s
holding that the danger represented by the impugned collaboration itself justified the incrimination
of acts of conspiracy, irrespective of whether the substantive crime of genocide has been
74
committed . He repeated the reasoning he had a dvanced in Popovi ć that once a person is
convicted for genocide the rationale for adding a conviction for conspiracy becomes “ less
70Prosecutor v. Gatete (ICTR-00-61-A), Judgment, 9 Oct. 2012, para. 260.
71
Prosecutor v. Gatete (ICTR-00-61-A), Judgment, 9 Oct. 2012, para. 261.
72Prosecutor v. Gatete (ICTR-00-61-A), Judgment, 9 Oct. 2012, para. 262 (reference omitted).
73Prosecutor v. Gatete (ICTR-00-61-A), dissenting opinion of Judge Agius, 9 Oct. 2012, para. 3.
74
Prosecutor v. Gatete (ICTR-00-61-A), dissenting opinion of Judge Agius, 9 Oct. 2012, para. 4. - 33 -
compelling”, especially when the criminal responsibility is based upon participation in a joint
75
criminal enterprise .
International Criminal Court
32. Mr. President, Members of the Court, I turn now to the International Criminal Court.
33. At the International Criminal Court, there is a pending charge of genocide in the
proceedings directed against the President of Sudan, Omar al-Bashir. Because the Court has been
unable to obtain custody over the accused, there have been no developments with respect to
interpretation of the crime of genocide since the issuance of the arrest warrant in 2010.
Nevertheless, the decisions concerning issuance of the arrest warrant contain a very rich discussion
of aspects of the law of genocide including significant references to this Court’s 2007 ruling in the
Bosnia case.
34. Pre -Trial Chamber I, to which the case was initially assigned, concur red with the
Prosecutor’s application for an arrest warrant with respect to war crimes and crimes against
humanity but it declined to authorize a charge of genocide when it issued the arrest warrant in this
76
case . The decision was later overturned, the Appeals Chamber considering that the standard the
Pre-Trial Chamber had set for determining the charges it w as authorizing was too demanding at
77
such an early stage in the proceedings . The Pre-Trial Chamber subsequently added the genocide
charge to the al-Bashir arrest warrant 7, and that is where things stand. Much of the initial ruling ,
by the Pre -Trial Chamber on the issuance of the arrest warrant consisted of a discussion of the
definition of genocide. There was also a substantial dissenting opinion about the majority’s
exclusion of the crime of genocide from the arrest warrant. The two subsequent decisions, of the
Appeals Chamber and the Pre -Trial Chamber, do not really contribute anything of interest with
75Prosecutor v. Gatete (ICTR-00-61-A), dissenting opinion of Judge Agius, 9 Oct. 2012, para. 5. For the
discussion to which Judge Agius refers, see: Prosecutor v. Popović et al. (IT IT-05-88-T), Judgment, 10 June 2010,
paras. 2111-2127.
76Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad al-Bashir, 4 Mar. 2009.
77
Prosecutor v. Bashir (ICC-02/05-01/09), Judgment on the appeal of the Prosecutor against the “Decision on the
Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad al-Bashir”, 3 Feb. 2010.
78Prosecutor v. Bashir (ICC-02/05-01/09), Second Decision on the Prosecution’s Application for a Warrant of
Arrest against Omar Hassan Ahmad al-Bashir, 12 July 2010. - 34 -
respect to these issues and I will not return to them, but I will focus now on the initial Pre -Trial
Chamber decision.
35. Mr. President, Members of the Court, the Pre-Trial Chamber invoked the 2007 Judgment
of the ICJ on more than 20 occasions. At no point did it suggest that it disagreed with any aspect of
79
the decision of the ICJ .
36. An important feature of the ICC’s interpretation of the scope of the crime is its
consideration of an additional source of law, the Elements of Crimes. This is a secondary
instrument adopted by the Assembly of Stat es Parties whose purpose, according to Article 9 (1) of
the Rome Statute, is to “ assist the Court in the interpretation and application ” of the definitions of
crimes contained in Articles 6, 7, 8 and 8bis. They are required to be “ consistent” with the Rome
Statute 80, and they are listed in Article 21 as the sources of law to be applied “in the first place” , 81
along with the Statute and the Rules of Procedure and Evidence. The Elements of Crimes should
be of some interest to this Court to the extent that the y may be deemed to contribute to the
interpretation of Article2 of the Genocide Convention.
37. The Elements largely echo Article 6 of the Statute, which is essentially identical to
Article 2 of the 1948 Convention. However, the Elements of Crimes also contain some language
that is not part of that text. In the Bashir arrest warrant decision, the majority said that in this way
the Elements of Crimes “elaborate on the definition of genocide provided for in Article 6 of the
82
Statute” . First, they require that the victims belong to the targeted group no difficulty there.
Second, they require that the punishable acts killings, serious bodily or mental harm, imposition
of conditions of life take place “in the context of a manifest pattern of similar c onduct directed
against that group or was conduct that could itself effect such destruction” you have it on the
screens in both of the official languages of the Court . Third, they specify that the perpetrator act
with intent to destroy the group in whol e or in part. The first and third of these Elements do not
79Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad al -Bashir, 4 Mar. 2009, para. 114, fn. 133; para. 135, fns. 148-150; para. 137, fn152;
para. 138, fn. 153; para. 139, fn. 154; para. 140, fn. 155; para. 142, fn. 156; para. 143, fn. 157; para. 144, fns. 158-160;
para. 146, fns. 161-163; para. 167, fn. 188; para. 182, fns. 202-206; para. 183, fns. 207-208; para. 194, fn. 221.
80Rome Statute of the International Criminal Court, (2002) 187 UNTS 90, Art. 9 (3).
81Rome Statute of the International Criminal Court, (2002) 187 UNTS 90, Art. 21 (1) (a).
82
Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’ s Application for a Warrant of Arrest
against Omar Hassan Ahmad al- Bashir, 4 Mar. 2009, para. 113. - 35 -
raise any problems. They find much support in the case law of the ad hoc tribunals, the travaux
and the scholarly literature. It is the second Element that is more controversial.
38. It appears that the second of these Elements, namely the requirement that genocidal acts
took place “in the context of a manifest pattern of similar conduct directed against that group or
was conduct that could itself effect such destruction ”, was not included in the original drafts of the
83
Elements of Crimes debated by the Preparatory Commission of the ICC during its 1999 sessions .
This Element was added to the draft at the beginning of 2000 84, apparently in reaction to the first
85
judgment of the ICTY that dealt with the merits of a genocide charge . In that ruling, a Trial
Chamber of the Tribunal held that genocide could be committed by an individual acting alone, even
in the absence of evidence that this was part of some larger policy, plan, or campaign involving
others, and without any requirement that the intentions of the individual perpetrator had any
reasonable chance of being achieved. Those who drafted the Elements of Crimes appear to have
added the requirements of a manifest pattern of similar conduct or conduct that could itself effect
such destruction in order to prevent the ICC from adopting a similar construction of the scope of
the crime of genocide, to that adopted by a trial chamber of the ICTY.
39. The contextual element set out in the Elements of C rimes was invoked by Pre -Trial
Chamber I in its decision on the Bashir arrest warrant. The Chamber said that the definition in the
Genocide Convention “ does not expressly require any contextual element ” 86. It then considered
the case law of the ad hoc tribunals, which have not insisted upon a plan or policy as an element of
the crime of genocide 87. It must be said that all of the judgments of the ad hoc tribunals have a
rather theoretical aspect when it comes to this question. To use the common law expres sion, they
represent obiter dicta. At the Rwanda Tribunal, there has never really been any doubt that the
83See, e.g., PCNICC/1999/L.5/Rev.1/Add.2, pp. 5-7, issued 22 Dec. 1999. The initial proposal for the Elements
of Crimes, submitted by the United States, borrowed the “widespread or systematic” language from the Rome Statute’s
definition of crimes against humanity: Proposal Submitted by the United States of America, Draft Elements of Crimes,
PCNICC/1999/DP.4.
84
PCNICC/2000/L.1/Rev.1/Add.2, pp. 6-8 (issued 7 Apr. 2000).
85
Prosecutor v. Jelisić (IT-95-10-T), Judgment, 14 Dec. 1999.
86Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad al-Bashir, 4 Mar. 2009, para. 117.
87Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a W arrant of Arrest
against Omar Hassan Ahmad al -Bashir, 4 Mar. 2009, para. 119, citing: Prosecutor v. Jelisić (IT-95-10-T), Judgment,
14 Dec. 1999, para. 400 (an error; the correct reference is to para. 100); Prosecutor v. Akayesu (ICTR-96-4-T),
Judgment, 2 Sep. 1998, paras. 520 and 523. - 36 -
killings of several hundred thousand Tutsi in 1994 was the product of a plan or policy. The
judgements of the Yugoslavia Tribunal are even more abst ract given the fact that the only
convictions for genocide concern the Srebrenica massacre, where the existence of a plan or policy
is not seriously questioned and it is not suggested that this was the act of a single individual acting
alone.
40. In the J elisić case, the 1999 decision of the ICTY that prompted this change in the
Elements of Crimes, the Trial Chamber had dismissed a charge of aiding and abetting genocide
because of insufficient evidence that the crime was being perpetrated by p ersons other than the
accused. But it then went on to rule that a conviction for genocide was in any event “theoretically
88
possible” because an individual, acting alone, could perpetrate the crime . The Trial Chamber
concluded that Jelisić was such a mentally unstable individual that he was not capable of forming a
genocidal intent, and he was acquitted of that charge, convicted for crimes against humanity . But
the conclusion in Jelisić again this really is obiter dictum that genocide could be convicted
by an indi vidual perpetrator, acting alone, and in the absence of a broader plan or policy, still
remains the law, officially,of the Yugoslavia Tribunal.
41. In the Bashir decision, Pre-Trial Chamber I compared the Elements of Crimes and the
case law of the ad hoc tribunals, and it observed that, according to the ICTY:
“the crime of genocide is completed [and I am quoting from the decision] by,
inter alia, killing or causing serious bodily harm to a single individual with the intent
to destroy in whole or in part the group to which such individual belongs. As a result,
according to this case law, for the purpose of completing the crime of genocide, it is
irrelevant whether the conduct in question is capable of po89ng any concrete threat to
the existence of the targeted group, or a part thereof.”
42. Pre -Trial Chamber I said that following this interpretative approach, the crime of
genocide depends upon proof that the accused had the intent to destroy the protected group, and
that
“[a]s soon as this intent exists and materializes in an isolated act of a single individual,
the protection is triggered, regardless of whether the latent threat to the existence of
88Prosecutor v. Jelisić (IT-95-10-T), Judgment, 14 Dec. 1999, para. 100; affirmed: Prosecutor v. Jelisić
(IT-95-10-A), Judgment, 5 July 2001.
89
Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad al-Bashir, 4 Mar. 2009, para. 119 (references omitted). Contra: Bashir (ICC-02/05-01/09),
separate and partly dissenting opinion of Judge Anita Ušacka, 4 Mar. 2009, para. 19, fn. 26. - 37 -
the targeted group posed by the said intent has turned into a concrete threat to the
90
existence in whole or in part of that group” .
43. Noting what it called “a certain controversy” as to whether the contextual element in the
Elements of Crimes should be applied , Pre-Trial Chamber I quite clearly distanced itself from the
case law of the ad hoc tribunals. It highlighted the importance of the contextual element set out
expressly in the Elements of Crimes.
“In the view of the Majority, according to this contextual element, the crime of
genocide is only completed when the relevant conduct presents a concrete th reat to the
existence of the targeted group, or a part thereof. In other words, the protection
offered by the penal norm defining the crime of genocide [i]s an ultima ratio
mechanism to preserve the highest values of the international community is only
triggered when the threat against the existence of the targeted group, or part thereof,
92
becomes concrete and real, as opposed to just being latent or hypothetical.”
44. Dissenting, Judge Ušacka insisted that the role of the Elements of Crimes was only to
“assist” the Court, and hinted at the view that in the Bashir case they were inconsistent with
93
Article 6 of the Statute, a point she said did not need to be determined in the case at bar .
45. The Pre-Trial Chamber, the majority, might well have justif ied the difference in its
approach and that of the ad hoc tribunals by relying exclusively on the requirements imposed by
the Elements of Crimes, therefore avoiding any implication of disapproval of the interpretation of
the ICTY in Jelisić and subsequent cases. However, it went on to state that it did not see any
“irreconcilable contradiction” between the definition in Article 6 of the Rome Statute and the
94
criterion of a contextual element set out in the Elements , and I quote:
“Quite the contrary, the M ajority considers that the definition of the crime of
genocide, so as to require for its completion an actual threat to the targeted group, or a
part thereof, is (i) not per se contrary to article 6 of the Statute; (ii) fully respects the
requirements of article 22 (2) of the Statute that the definition of the crimes ‘shall be
strictly construed and shall not be extended by analogy’ and ‘[i]n case of ambiguity,
the definition shall be interpreted in favour of the person being investigated,
90
Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad al-Bashir, 4 Mar. 2009, para. 120.
91Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad al-Bashir, 4 Mar. 2009, para. 125.
92Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad al-Bashir, 4 Mar. 2009, para. 124.
93
Prosecutor v. Bashir (ICC-02/05-01/09), separate and partly dissenting opinion of Judge Anita Ušacka,
4 Mar. 2009, para. 20.
94Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad Al Bashir, 4 Mar. 2009,para. 132. - 38 -
prosecuted or convicted’; and (iii) [this is the important part] is fully consistent wit95
the traditional consideration of the crime of genocide as the ‘crime of the crimes’.”
46. Mr. President, Members of the Court, t he decision therefore represents an important
development in the jurisprudence of the ICC. It departs from the established case law of the ad hoc
tribunals on a significant substantive legal issue. The debate and it remains a live one today
is about whether the contextual element contained in the Ele ments of Crimes represents a
clarification of the scope of the definition of genocide taken from A rticle 2 of the Convention or
whether it is a limitation or restriction on it imposed by States in the particular context of the
adoption of a supplementary i nstrument to the Rome Statute. Those who see it as a narrowing of
the Convention definition argue t hat the Elements of Crimes are “jurisdictional” in nature. Their
contention, which is often driven by a visceral resistance to anything that appears to narrow or limit
definitions of crimes at the international level, is essentially based upon a literal reading of the text
of the Convention. They assert that because the contextual element is not set out explicitly in the
definition of the crime taken from Article 2, that it therefore represents a change or an alteration.
47. The view that the Elements of Crimes merely clarify the content of A rticle 2 of the
Convention may rely upon them as “ subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its prov isions” or “subsequent practice in the
application of the treaty which establishes the agreement of the parties regarding its interpretation”,
well-known concepts set out in Article 31 (3) of the Vienna Convention on the Law of Treaties.
There cannot be much doubt that the drafters of the Rome Statute, at the 1998 diplomatic
conference and before, treated Article 2 of the 1948 Convention as somewhat of a sacred text that
was not to be modified at all. It is striking that Article 6 of the Rome Statute faithfully respects the
language of Article 2 of the 1948 Convention, whereas the definitions of the other categories of
crime that were adopted at the Rome Conference vary significantly from other models. In eff ect,
they dramatically develop the codifications of both crimes against humanity and war crimes.
However, when the Rome Conference turned to the crime of genocide, there was a resistance to
any change whatsoever to the 1948 text. There was only one hint that it might be changed, a casual
9Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad al-Bashir, 4 Mar. 2009, para. 133. - 39 -
proposal by Cuba to include political and social groups , and that was never even submitted as a
96 97
formal amendment . Many States took the floor to insist upon fidelity to the 1948 definition .
48. Mr. President, Members of the Court, it seems implausible therefore that in June and July
1998, at the Rome Conference, States more or less unanimously expressed their allegiance to the
1948 definition of the Convention but that two years later, when the Preparatory Commission w as
drafting the Elements of Crimes, they intended to depart from that definition with a so- called
“jurisdictional” limitation on the scope of genocide. Pursuant to the Final Act of the Rome
Conference, the Preparatory Commission had the same composition a s the Rome Conference, so it
cannot be argued that it was not as representative or that its membership differed. Nevertheless, the
fact that the intent of the Preparatory Commission was to elucidate the scope of the 1948 definition
does not necessarily lead to the conclusion that it did not, as a matter of law, effect what amounts to
an amendment rather than an interpretative clarification. I will return to the legal significance of
the Elements of Crimes in a few minutes when I discuss the case law of th e ICTY, where the
Elements have been dismissed as constituting a departure from the text of the Convention.
Mr. President, this might be a convenient time to take the morning break?
The PRESIDENT: Certainly, if you wish also to pause a little bit, the C ourt is going to take
15 minutes’ break, so the sitting is suspended for 15 minutes.
Mr. SCHABAS: Thank you very much.
The Court adjourned from 11.25 a.m. to 11.40 a.m.
The PRESIDENT: Please be seated. The hearing is resumed and Professor Schabas you can
continue, please. You have the floor.
Mr. SCHABAS: Thank you very much, Mr. President. I have just a few more minutes on
the International Criminal Court and then I turn to the most important of the institutions as far as
this Court is concerned, the ICTY.
9UN doc. A/CONF.183/C.1/SR.3, para. 100.
9See particularly the debates at UN doc. A/CONF.183/C.1/SR.3, paras.20-179. - 40 -
49. In the Bashir arrest warrant decision at the ICC, about which I spoke prior to the pause,
the Pre-Trial Chamber recognized the development by scholars of what has been identified as a
“knowledge-based approach” to genocide . The Pre-Trial Chamber described the approach as
facilitating the criminal responsibility of “direct perpetrators and mid-level commanders . . . even if
they act without the dolus specialis/specific intent to destroy in whole or in part the targeted
group”. It said that, according tothe knowledge-based approach,
“as long as those senior political and/or military leaders who planned and set into
motion a genocidal campaign act with the requisite dolus specialis /ulterior intent,
those others below them, who pass on instructions and/or physically implement such a
genocidal campaign, will commit genocide as long as they are aware that the ultimate
purpose of such a campaign is to destroy [the group] in whole or in part”.
The Pre-Trial Chamber insisted that the so-called knowledge-based approach is not different from
the traditional approach in relation to senior political and milita ry leaders who plan and set in
motion a genocidal campaign, and who must act with the genocidal intent described in A rticle 2 of
the Convention. G iven that in the Bashir case, the issue was not the involvement of a mid- level
commander or direct perpetrator but rather an individual at the highest leadership level, the
Pre-Trial Chamber said the knowledge-based approach was irrelevant to its determination.
50. This may have been undersell ing the principles of the “knowledge -based approach”,
bearing in mind that it has been developed by scholars who do not necessarily agree amongst
themselves. One feature of the approach is its emphasis not on the spe cific intent of individual
perpetrators but rather on the plan or policy behind the genocidal campaign itself. It is consistent
with the controversial Element in the Elements of Crimes because it tends to dismiss the thesis of
the lone perpetrator, requir ing that the destruction of the group be a feasible outcome of the
ensemble of acts of genocide. For all practical purposes, the knowledge -based approach excludes
the possibility that genocide is the work of isolated individuals. Genocide results from a plan or
policy that is the creation of a State or State -like entity. A focus on the mens rea of individuals
should only then arise with respect to the knowledge of such individuals of the plan or policy. If
they know of the plan or policy and contribute to its implementation, then they have the requisite
9Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad al-Bashir, 4 Mar. 2009, para. 139, fn. 154, referring to: Claus Kreβ, “The Darfur Report and
Genocidal Intent”, (2005) 3 Journal of International Criminal Jus, pp. 565-572; William Schabas, Genocide in
International Law, The Crime of Crimes, 2nd ed., Cambridge: Cambridge University Press, 2009, pp. 241-264. - 41 -
mens rea. In other words, the starting- point for the analysis should be the existence of a plan or
policy of a body with the capacity to destroy a protected group in whole or in part. To the extent
that individual criminal responsibility is at issue, the analysis then proceeds to consider the
knowledge of the plan by the individual and whether or not he or she could avail of an excuse or
justification that might counteract the apparent mental element.
51. The focus on individual intent that features in international criminal law cannot be
automatically transposed to the debate about State responsibility for individual crime. In practice,
as this Court did in the 2007 Judgment in the Bosnia case, the wor d “intent” and even “ specific
intent” is used in the context of an analysis of policy. Whether or not one of the individual
perpetrators in the Srebrenica massacre manifested the specific intent to commit genocide is really
quite secondary to whether the events were the product of a co -ordinated plan perpetrated by an
entity rather than the perverse product of a single mind.
52. Mr. President, Members of the Court, aside from the very ample consideration of the
2007 Judgment of this Court in the Bashir arrest warrant decision, the only other references to the
Judgment in 2007 that I have found appear in last Friday’s ruling of a Trial Chamber of the
International Criminal Court in the Katanga case. Bo th the majority and dissenting
Judge van den Wyngaert referred to the discussion in the 2007 Judgment with respect to the control
test99. In the majority decision there are also many references to other decisions of the Court,
including Corfu Channel, Georgia v. Russia and of course Armed Activities on the Ter ritory of the
Congo, but none of these are particularly relevant to the discussion of genocide and I will address
them no further.
International Criminal Tribunal for the former Yugoslavia
53. Mr. President, Members of the Court, I now turn to the most im portant of the
international criminal tribunals for the purposes of this case, the ICTY . Only a small number of
cases at the ICTY have dealt with charges of genocide. It is therefore not unusual that it was only
in mid-2010 that the Tribunal considered t he Judgment of the ICJ for the first time. The Popović
9Prosecutor v. Katanga (ICC-01/04-01/07), Judgment of 7 March 2014 pursuant to Art.74 of the Statute,
para. 1178, fn. 2737; Prosecutor v. Katanga (ICC-01/04-01/07), minority opinion of Judge Christine van den Wyngaert,
7 Mar. 2014, para. 276, fn. 382. - 42 -
case, to which I have already referred, concerned seven accused, four of whom were charged with
genocide or, in the alternative, aiding and abetting genocide as participants in the Srebrenica
massacre. Two of the accused, Popović an d Beara, were convicted of genocide, while a third,
Nikolić, was convicted of aiding and abetting genocide. Ludomir Borovčanin was acquitted of the
genocide charge but convicted of aiding and abetting the crime against hum anity of extermination.
The Prosecutor did not appeal the acquittal of Borovčanin for genocide. The appeal in Popović
was argued before the Appeals Chamber in December 2013.
54. The Popović Trial Chamber considered the legal elements of the crime of gen ocide in
some detail, reviewing the case law on the subject. It cited the Bosnia decision on several
occasions 100. In almost all of these references, the Trial Chamber also referred to rulings of the
ad hoc institutions, confirming the consistency of the i nternational case law and the agreement of
the ICJ with the legal findings of the ICTR and the ICTY.
55. Of particular interest was its consideration of the punishable acts, especially that of
causing serious bodily or mental harm. The Trial Chamber appr oved of the statement by the
Appeals Chamber of the ICTR in Seromba to which I referred earlier that “[t]o support a
conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must
be of such a serious nature as to threaten its destruction in whole or in part ” 101. It provided various
102
examples to which I have already referred , citing in support paragraph 319 of the J udgment of
the ICJ in Bosnia. The Trial Chamber also noted the holding of the Appeals Chamber that forcibl e
103
transfer “does not constitute in and of itself a genocidal act” . The footnote to this statement said:
“The International Court of Justice has held that neither the intent to render an
area ethnically homogenous nor oper ations to implement the policy ‘can as such be
designated as genocide: the intent that characterizes genocide is to “destroy, in whole
or in part,” a particular group, and deportation or displacement of the members of a
group, eve104f effected by force, is not necessarily equivalent t o destruction of that
group’.”
100
Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 807, fns. 2910 and 2911; 808,.
fn. 2913; para. 809, fn. 2916; para. 812, fn. 2925; para. 813, fn. 2926; para. 814, fn. 2929; para. 817, fn. 2934;
para. 819, fn. 2937; para. 821, fn. 2940; para. 822, fns. 2943 and 2944; para. 827, fn. 2958; para. 831, fn. 2968.
10Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 811.
10Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 812.
103
Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 813.
10Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 813, fn. 2926, citing Bosnia,
Judgment, I.C.J. Reports 2007 (I), p. 123, para. 190 (emphasis in the original). - 43 -
56. Referring to the punishable acts of genocide that are listed in the five paragraphs of
Article 2, the Trial Chamber said that the methods of destruction covered in the third act
“Deliberately inflicting on the group c onditions of life calculated to bring about its physical
destruction in whole or in part ” are “those seeking a group’s physical or biological
destruction” 10. And here it referred to paragraph 344 of this Court’s 2007 Judgment, and cited the
Court’s statement that “the destruction of historical, cultural and religious heritage cannot be
considered to constitute the deliberate infliction of conditions of life calculated to bring about the
physical destruction of the group” . The Trial Chamber also considere d briefly the fourth act of
genocide “Imposing measures intended to prevent births within the group” in concluding
that, “[t]o amount to a genocidal act, the evidence must establish that the acts were carried out with
intent to prevent births within th e group and ultimately to destroy the group . . . in whole or in
106 107
part” . It provided as authority two paragraphs from this Court’s 2007 Judgment .
57. The Trial Chamber also devoted significant attention to the contention by one of the
defendants that the crime of genocide comprised an element of State policy. The Trial Chamber
rejected this argument, stating that the jurisprudence of the ad hoc tribunals had “made it clear that
a plan or policy is not a statutory element of the crime of genocide” 10. The Trial Chamber referred
to the Elements of Crimes of the ICC, holding that Article 6 of the Rome Statute, which consists of
the definition of genocide drawn from the 1948 Convention, “does not prescribe the requirement of
109
‘manifest pattern’ introduced in the ICC Elements of Crimes” . The Trial Chamber said that “the
language of the ICC Elements of Crimes, in requiring that acts of genocide must be committed in
the context of a manifest pattern of similar conduct, implicitly excludes random or isolated act s of
genocide” 110. It said that the Appeals Chamber of the ICTY in Krstić had already said “reliance on
111
the definition of genocide given in the ICC’s Elements of Crimes is inapposite ” . Although the
10Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 814.
106
Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 819.
10Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 819, fn. 2937, citing Bosnia,
Judgment, I.C.J. Reports 2007 (I), p. 190, para. 355.
10Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 829.
10Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 829.
110
Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 829.
11Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 829. - 44 -
passage was not cited by the Trial Chamber in Popović, the Appeals Chamber in Krstić had gone
on to say that because “the definition adopted by the Elements of Crimes did not reflect customary
law as it existed at the time Krstić committed his crimes, it cannot be used to support the Trial
Chamber’s conclusion” 112. The Popović Trial Chamber concluded “ that a plan or policy is not a
legal ingredient of the crime of genocide . . . However, the Trial Chamber considers the existence
of a plan or policy can be an important factor in inferring genocidal intent ” 11. The Popović Trial
Chamber did not mention or otherwise consider the ruling of the Pre -Trial Chamber of the ICC
issued 15 months earlier in the Bashir arrest warrant. Here then there is a very significant con trast
in the interpretation of Article 2 of the Convention by Chambers of the ICC and the ICTY.
58. The trial of Radovan Karadžić began in October 2009. The Prosecutor has alleged that
Karadžić, as the highest civilian and military authority in the Republika Srpska, participated in an
“overarching j oint criminal enterprise to permanently remove Bosnian Muslims and Bosnian
Croats from Bosnian Serb-claimed territory in BiH” 114. This objective
“was primarily achieved through a campaign of persecutions as alleged in this
indictment. In some municipalitie s, between 31 March 1992 and 31 December 1992
this campaign of persecutions included or escalated to include conduct that manifested
an intent to destroy in part the national, eth115al and/or religious groups of Bosnian
Muslims and/or Bosnian Croats as such.”
That is the indictment against Karadžić. The genocidal acts that are alleged correspond to the first
three paragraphs of Article 2 of the Convention, namely, killing, causing serious bodily or mental
harm, and deliberately inflicting conditions of life.
59. On 28 June 2012, after the Prosecutor had concluded the presentation of the case against
the accused, the Trial Chamber granted in part the motion to acquit presented pursuant to
Rule 98bis of the Rules of Procedure and Evidence and removed the ch arge of genocide with
respect to activities of Bosnian Serb forces in the municipalities. It retained the charge of genocide
112
Prosecutor v. Krstić (IT-98-33-A), Judgment, 19 Apr. 2004, para. 224.
11Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 830.
11Prosecutor v. Karadžić (IT-95-5/18), Prosecution’s Marked-Up Indictment, 19 Oct. 2009, para. 8.
115
Prosecutor v. Karadžić (IT-95-5/18), Prosecution’s Marked-Up Indictment, 19 Oct. 2009, para. 38. - 45 -
concerning Srebrenica 116. The Trial Chamber issued its ruling orally, as has been the practice at
ICTY for more than a decade.
60. With respect to the charge of genocide perpetrated in the municipalities over the course
of the war as a whole, the Trial Chamber began by stating that it was not bound either by earlier
findings during trials before the Tribunal or by the Judgment of the ICJ of February 2007 117. The
Chamber said that the evidence submitted to the Tribunal by the Prosecutor indicated “that a large
number of Bosnian Muslims and/or Bosnian Croats were killed by Bosnian Serb forces in the
118
municipalities during and after their alleged take-over and while in detention ” . It said this
evidence was “capable of supporting a conclusion that Bosnian Muslims and/or Bosnian Croats
119
were killed on a large scale with the intent to kill with persecutory intent” , crimes against
humanity language. Furthermore,
“the determination of whether there is evidence capable of supporting a conviction for
genocide does not involve a numerical assessment of the number of people killed and
does not have a numeric threshold. However, the evidence the C hamber received in
relation to the municipalities, even if taken at its highest, does not reach the level from
which a reasonable trier of fact could infer that a significant section of the Bosnian
Muslim and/or Bosnian Croat groups and a substantial numbe r of members of these
groups were targeted for destruction so as to have an impact on the existence of the
120
Bosnian Muslims and/or Bosnian Croats as such.”
61. Turning to the punishable acts of genocide that are enumerated in the five paragraphs of
Article 2 of the Conventio n, the Trial Chamber made comments about “serious bodily harm ” and
repeated the statement that “in order to support a conviction for genocide, the bodily or mental
harm inflicted on members of a group must be of such a serious nature as to threaten its destruction
121
in whole or in part” . Referring to the jurisprudence of the Tribunal, and specifically the Appeals
Chamber ruling in Krstić and the Trial Chamber Judgement in Popović, the Trial Chamber said this
116
Prosecutor v. Karadžić (IT-95-5/18), Transcript , 28 June 2012, p. 28,751, lines 225; p. 28,752, line 1,
p. 28,757, line 25; p. 28,758, lines 1-10.
117
Prosecutor v. Karadžić (IT-95-5/18), Transcript, 28 June 2012, p. 28,763, lines 20-24.
118Prosecutor v. Karadžić (IT-95-5/18), Transcript, 28 June 2012, p. 28,764, lines 22-25.
119Prosecutor v. Karadžić (IT-95-5/18), Transcript, 28 June 2012, p. 28,765, lines 1- 4.
120
Prosecutor v. Karadžić (IT-95-5/18), Transcript, 28 June 2012, p. 28,765, lines 4- 13.
121Prosecutor v. Karadžić (IT-95-5/18), Transcript, 28 June 2012, p. 28,766, lines 3-6. - 46 -
established “that forcible transfer does not constitute in and of itself a genocidal act” 122. It said the
Chamber had not
“heard evidence which rises to the level which could su stain a conclusion that the
serious bodily or mental harm suffered by those forcibly transferred in the
municipalities was attended by such circumstances as to lead to the death of the whole
or part of the displaced population” 123.
62. Speaking of the issue of genocidal intent, the Trial Chamber said:
“[I]n the absence of direct evidence that the physical perpetrators of the crimes
alleged to have been committed in the municipalities carried out these crimes with
genocidal intent, the Chamber can infer s pecific intent from a number of factors and
circumstances, including the general context of the case, the means available to the
perpetrator, the surrounding circumstances, the perpetration of other culpable acts
systematically directed against the same gr oup, the numerical scale of atrocities
committed, the repetition of destructive and discriminatory acts, the derogatory
language targeting the prote124d group, or the existence of a plan or policy to commit
the underlying offence.”
63. And again it said that there was “there is no evidence that these actions reached a level
from which a reasonable trier of fact could draw an inference that they were committed with an
intent to destroy in whole or in part the Bosnian Muslims and/or Bosnian Croats as such” . 125
64. The Prosecutor appealed the acquittal on the charge of genocide by the Trial Chamber
and, on 11 July 2013, the Appeals Chamber ordered that the charge be reinstated 126. In other
words, the defence now has a case to answer on the point. The Appeals Chamber considered the
Trial Chamber decision by first examining the findings with respect to evidence of the three
punishable acts of genocide. Like the Trial Chamber, it insisted it was not bound by the factual
findings and evidentiary assessments in e arlier decisions of the Tribunal or by the ruling of the
127
ICJ . The Appeals Chamber noted that the Trial Chamber had concluded there was evidence that
122Prosecutor v. Karadžić (IT-95-5/18), Transcript, 28 June 2012, p. 28,766, lines 12-18.
123
Prosecutor v. Karadžić (IT-95-5/18), Transcript, 28 June 2012, p. 28,766, lines 23-25; p. 28,767, lines 1-3.
124Prosecutor v. Karadžić (IT-95-5/18), Transcript, 28 June 2012, p. 28,768, lines 5- 15.
125Prosecutor v. Karadžić (IT-95-5/18), Transcript, 28 June 2012, p. 28,769, lines 3- 6.
126
Prosecutor v. Karadžić (IT-95-5/18-AR98bis.l), Judgment, 11 July 2013.
127Prosecutor v. Karadžić (IT-95-5/18-AR98bis.l), Judgment, 11 July 2013, para. 94. - 47 -
128
the actus reus of the genocidal act of killing had been perpetrated . Turning to the punishable act
of causing serious bodily and mental harm, it referred to evidence of beatings and other forms of
129
physical abuse as well as rapes . The Appeals Chamber said that,
“[w]hile the commission of individual paradigmatic acts does not automatically
demonstrate that the actus reus of genocide has taken place, the Appeals Chamber
considers that no reasonable trial chamber reviewing the specific evidence on the
record in this case, including evidence of sexual violence and of beatings causing
serious physical injuries, could have concluded that it was insufficient to establish the
actus reus of genocide” . 130
The Appeals Chamber reached a similar conclusion with respect to the third act of genocide . 131
65. The Appeals Chamber concluded that “ the evidence on the record, take n at its highest,
could indicate that Karadzic possessed genocidal intent ”. It said, [o]t her evidence on the record
indicates that other alleged members of the [joint criminal enterprise] also possessed such
132
intent” . The Appeals Chamber granted the appe al of the Prosecutor on the genocide charge
relating to the municipalities.
66. Mr. President, Members of the Court, t he significance of this decision of the Appeals
Chamber could easily be exaggerated and it was certainly misunderstood by many observers of the
proceedings. The test that is to be applied for such motions formulated during the trial and before
the defence has presented its case and its evidence is “whether there is evidence (if accepted) upon
which a reasonable [trier] of fact could be satisfied beyond reasonable doubt of the guilt of the
accused on the particular charge in question and not whether an accused’s guilt has been
133
established beyond reasonable doubt ” . Indeed, an erroneous understanding of such Rule 98bis
decisions was presented to the Court last week by Ms Law in her submissions. She was discussing
128
Prosecutor v. Karadžić (IT-95-5/18-AR98bis.l), Judgment, 11 July 2013, para. 25. This is probably a
misreading of the Trial Chamber’s position. Like the Appeals Chamber, the Trial Chamber methodically examined the
relevance of each of the three punishable acts of genocide. Before turning to causing serious bodily and mental harm
(beginning at p. 28,765, line 14), it discussed killing in the previous paragraph (beginning at p. 28,764, line 19). There it
concluded, in language similar to what it used for the other two acts of genocide further on in the ruling, that “even if
taken at its highest, does not reach the level from which a reasonable trier of fact could infer that a significant section o f
the Bosnian Muslim and/or Bosnian Croat groups and a substantial number of members of these groups were targeted for
destruction so as to have an impact on the existence of the Bosnian Muslims and/or Bosnian Croats as such” (p28,764,
lines 8-13).
129Prosecutor v. Karadžić (IT-95-5/18-AR98bis.l), Judgment, 11 July 2013, paras. 34-36.
130Prosecutor v. Karadžić (IT-95-5/18-AR98bis.l), Judgment, 11 July 2013, para. 37 (reference omitted).
131
Prosecutor v. Karadžić (IT-95-5/18-AR98bis.l), Judgment, 11 July 2013, paras. 47-48.
132Prosecutor v. Karadžić (IT-95-5/18-AR98bis.l), Judgment, 11 July 2013, para. 100.
133Prosecutor v. Delalić et al. (IT-96-21-A), Judgment, 20 Feb. 2001, para. 434 (emphasis in original). See also:
Prosecutor v. Jelisić (IT-95-10-A), Judgment, 5 July 2001, para. 37. - 48 -
the de la Brosse report, presented by the Prosecutor in the Milošević case. Citing the 2004 decision
at the conclusion of the Prosecution’s case, she said: “In 2004 the Trial Chamber adopted the
134
conclusions of the report” . That is of course not correct. The Trial Chamber did no such thing.
It did not adopt anything. It merely enumerated the totality of the evidence that the Prosecutor had
submitted, noting that, were it to be believed, it could sustain a conviction. In explaining the
significance of the report to the Court, counsel for Croatia should have said that the report was
prepared for, and submitted by the Prosecutor, and that we have no idea what the judges thought of
it.
67. Professor Sands also referred to the Rule 98bis decision in the Karadžić case. He
ascribed some weight to the fact that a charge involving genocide perpetrated against Croats within
Bosnia and Herzegovina had been reinstated by the Appeals Chamber. Professor Sands was trying
to make the point that if Serbs were perpe trating genocide against Croats in Bosnia, why would
they behave differently in Croatia. He was probably exaggerating the significance of the decision
of the Appeals Chamber to reinstate the genocide charge . Genocide of Croats in Bosnia in the
municipalities has not been prove d in Karadžić. Neither the Appeals Chamber nor the Trial
Chamber has ever said it was proven. Indeed, it has never been proven at the ICTY in any of the
cases. But, Mr. President, Members of the Court, there is no need for me to defend the charge here
because this issue has already been decided by the International Court of Justice. It is as close to
being res judicata as we can get . In February of 2007, this Court dismissed that part of the
application by Bosnia and Herzegovina that alleged genocide agains t Croats. Even those judges,
some of them here today, who disagreed with parts of the majority ruling, did not subscribe to the
claim that Croats in Bosnia had been victims of genocide. So let me turn Professor Sands’s
argument around. I like Professor Sands’s way of viewing this. If Serbs were not responsible for
genocide against Croats in Bosnia and Herzegovina, as this Court has already ruled, why would
they behave differently in Croatia? And indeed, it is this question that really strikes at the he art of
Croatia’s problem before the Court.
13CR 2014/5, p. 33, para. 6 (Law). - 49 -
68. Mr. President, Members of the Court, motions to dismiss after the Prosecutor has
concluded his case rarely succeed. Some defence lawyers prefer not to file them at all. The
decisions often bear little or no resemblance to the final judgment on guilt or innocence. Indeed,
until Karadžić, no such motion seeking dismissal of genocide charges had previously been
successful before the Tribunal, and yet, as you know, as you have seen, it was overturned on
appeal 13. Yet none of the genocide charges containing the municipalities has ever resulted in a
conviction. Thus, although the Appeals Chamber has said that statements attributed to Karadžić,
Mladić and Krajišnik could show genocidal intent, it was in no way suggesting that a Trial
Chamber would in fact consider this to be decisive evidence.
69. I turn to the final decision of interest at the ICTY. In December 2012, a Trial Chamber
convicted Zdravko Tolimir of genocide with respect to crimes perpetrated in Sr ebrenica in
mid-July 1995 and in the days that followed. It referred to the February 2007 Judgment of the ICJ
as authority for the proposition that “[a] perpetrator’s specific intent to destroy can be distinguished
from the intent required for persecutions as a crime against humanity on the basis that a perpetrator
who possesses genocidal intent has formed more than an intent to harm a group by virtue of his
136
discriminatory acts; he actually intends to destroy the group itself ” . To an extent the Trial
Chamber in Tolimir departed from earlier precedent by taking the view that “ forcible transfer”
137
could be “ an additional means by which to ensure the physical destruction of a group” . It
endorsed the words of an earlier Trial Chamber decision in Blagojević and Jokić where it held “that
the physical or biological destruction of the group is the likely outcome of a forcible transfer of the
population . . .” 13. The Tolimir Trial Chamber said it was “ particularly guided” by this finding of
139
the Trial C hamber in Blagojević and Jokić . What it does not say is that this aspect of the
135Judge Kwon, dissenting, voted to dismiss a genocide charge against Slobodan Milošević after the Prosecutor
had completed her evidence. In Prosecutor v. Milošević et al. (IT-99-37-I); dissenting opinion of Judge O -Gon Kwon,
16 June 2004, para. 3, he wrote: “Taking the evidence from the Prosecution’s case at its highest, the furthest that a Trial
Chamber could infer in relation to the mens rerequirement is the knowledge of the Accused that genocide was being
committed in the specified municipalities in Bosnia and Herzegovina, but not the genocidal intent of the Accused
himself.”
136Prosecutor v. Tolimir (IT-05-88/2-T), Judgment, 12 Dec. 2012, para. 746 (emphasis in the original), citing
Bosnia, Judgment, I.C.J. Reports 2007 (I), p. 43, para. 187.
137Prosecutor v. Tolimir (IT-05-88/2-T), Judgment, 12 Dec. 2012, para. 765.
138
Prosecutor v. Tolimir (IT-05-88/2-T), Judgment, 12 Dec. 2012, para. 764, citing Prosecutor v. Blagojević and
Jokić (IT-02-60-T), Judgment, 17 Jan. 2005.
139
Prosecutor v. Tolimir (IT-05-88/2-T), Judgment, 12 Dec. 2012, para. 764. - 50 -
Blagojević and Jokić Trial Chamber judgment was reversed on appeal. The Tolimir Trial Chamber
only states that it is “cognizant” of the holding by the Appeals Chamber that displacement of a
people is not equivalent to destruction and that forcible transfer in and of itself is not a genocidal
140
act . One of the five members of the Appeals Chamber in the Blagojević and Jokić ruling was in
dissent. Judge Shahabuddeen would have upheld a conviction of complicity in genocide, following
a broader approach to the definition of the crime than his four colleagues 141. As is often the case
with dissenting opinions , they sharpen the debate and clarif y any possible ambiguity about the
intent of the majority judgment. Just as there can be no question that the Appeals Chamber in
Blagojević and Jokić did not confirm the broad and liberal approach to genocide adopted by the
Trial Chamber, there can also be little doubt that the Trial Chamber in Tolimir is promoting a
similarly broad and liberal approach to genocide, thereby inviting the ICTY Appeals Chamber to
reconsider its position.
Concluding observations
70. Mr. President, Members of the Court, in the 2007 Judgment in the Bosnia case, the Court
built upon the case law of the ICTY. To that extent, it is almost inevitable that its analysis would
use individual rather than State responsibility as the starting point. One of the very commendable
features of the 2007 Judgment was its effort at reconciling the interpretation of international legal
provisions by international tribuna ls, thereby addressing the problem of fragmentation and
encouraging the development of a holistic system despite the absence of structural unity in the
hierarchical sense of domestic legal systems. In the Diallo case, the Court said that while it was “in
no way obliged, in the exercise of its judicial functions, to model its own interpretation” of the
International Covenant on Civil and Political Rights on that of the United Nations Human Rights
Committee, it said it “should ascribe great weight to the interpretation adopted by this independent
body that was established specifically to supervise the application of that treaty ”. The Court said
this would help “to achieve the necessary clarity and the essential consistency of international law,
14Prosecutor v. Blagojević and Jokić (IT-02-60-A), Judgment, 9 May 2007, para. 123. Note that this judgment
was issued several weeks after the Feb. 2007 Judgment of the ICJ. Tudgment is listed as an authority at the end of
the Appeals Chamber’s judgment but it is not in fact cited anywhere in the reasons of the Appeals Chamber.
141
Prosecutor v. Blagojević and Jokić (IT-02-60-A), partly dissenting opinion of Judge Shahabuddeen,
9 May 2007. - 51 -
as well as legal security, to which both the individuals with guaranteed rights and the States obliged
142
to comply with treaty obligations are entitled ” . But, Mr. President, Members of the Court, there
is a slight difference in this respect between the International Co venant on Civil and Political
Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. Because
the latter contemplates not one but two tribunals with authority for its interpretation without
indicating a preference as to which is more authoritative: an “ international penal tribunal ”, in
Article 6, and the ICJ, in Article 9. Let me note in passing that last week Judge Cançado Trindade
raised a question about the significance of the case law of international human rights tribuna ls, and
I propose to address this point, but not in today’s submission.
71. Mr. President, Members of the Court, in the Bosnia case this Court held that the ICTY
was an “ international penal tribunal ” contemplated by Article 6 of the Genocide Convention.
Although it did not speak directly to the point in that judgment, it is obvious that the ICC is also a
tribunal within the meaning of Article 6 of the Genocide Convention. In other words, the situation
is slightly more complicated than it was in the Diallo case, because of the multiplicity of
international tribunals with responsibility for the interpretation of the norm. Moreover, even within
the frame of the international penal tribunals contemplated by Article 6, as this oral presentation
has attempted to show, there are conflicts in the interpretations proposed by the ICTY and the ICC.
Nor can the issues be neatly parcelled out, letting the international criminal tribunals deal with
matters of individual criminal liability while reserving State respons ibility for the ICJ. The issue of
the mental element of the crime of genocide may look somewhat different depending upon whether
it is approached from the angle of individual intent, as has been the tendency at the ICTR, and the
ICTY, or State policy, as may be the correct approach when examined from the perspective of State
responsibility. The “knowledge-based” approach, to which I alluded earlier, may be of some
assistance in solving the problem, thereby promoting the unification of international law, a n
objective that the Court endorsed in the Diallo case.
72. The Judgment of the ICJ in the Bosnia case met with considerable disappointment in
some circles where a broad and expansive definition of genocide had been advocated. For decades,
14Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment,
I.C.J. Reports 2010 (II), p. 664, para. 66. - 52 -
basically from the time of adoption of the 1948 Convention, frustration with the narrow terms of
Article 2 had frequently been expressed. Indeed, the Genocide Convention was only intended to
cover a narrow range of atrocity crimes. At the time of its adoption, it was impossible to achieve
any broader consensus within the United Nations General Assembly on the punishment of
international atrocity crimes. Anxiety about an extensive reach of international criminal justice had
prompted the four Powers at the London Conference, in 1945, to limit the scope of crimes against
humanity, as I explained earlier in my presentation. Three years later, the General Assembly
reflected similar concerns by defining genocide narrowly and seemingly excluding such corollaries
as the exercise of universal jurisdiction.
73. In the decades that followed, dismay with such restrictions manifested itself in calls for
the definition of genocide to be interpreted very broadly or, alternatively, to be amended. There
was little in the way of similar initiatives concerning crimes against humanity because of the
absence of an international treaty for that broader category that would be similar to the Genocide
Convention.
74. When international justice revived, in the 1990s, the impetus for expanding the scope of
crimes manifested itself , largely, in the enlargement of the definition of crimes against humanity
and the extension of war crimes to situations of non- international armed conflict. The Rome
Statute of 1998 confirmed this very dramatic legal evolution, or perhaps revolution is more
accurate. One consequence was to relieve the pressure to expand the definition of genocide, either
through amendment or by interpretation. The impunity gap left by the initial codification of the
1940s was filled in the 1990s, but by the development of crimes against humanity and war crimes
rather than that of genocide.
75. Mr. President, Members of the Court, w hen the Rome Statute was concluded in 1998,
50 years after the adoption of the Genocide Convention, the re had been very little judicial
interpretation of the crime of genocide by international courts and tribunals. Th is Court had
discussed the substance of the crime but only in the most general terms in the Advisory Opinion of
1951. There was also some li mited consideration in the preliminary rulings in the Bosnia case.
The ad hoc tribunals had yet to complete a trial where genocide was charged. Since 1998, there
has been a huge body of legal interpretation. This submission has dealt with only the most recent - 53 -
highlights, confining itself to decisions and judgment s, since the February 2007 Judgment, by
international courts and tribunals.
76. The Judgment of this Court in the Bosnia case of February 2007 had the effect of
consolidating a process of stabil ization in the definition of genocide that had been underway for
several years at the ad hoc tribunals. When the ad hoc tribunals began issuing judgments on the
interpretation of the definition of genocide, there was initially no clarity about the directi on this
would take. For decades, there had been controversy resulting from the narrow scope of the
definition in A rticle 2 of the Convention. For proponents of a broad construction of the crime,
there may have been some hope that this would be achieved t hrough the work of the ad hoc
tribunals. They were disappointed; this did not prove to be the case. The leading decision of the
Appeals Chamber of the ICTY, in Krstić in April 2004, left no question about the direction that
was being taken. A rear-guard effort by one Trial Chamber, in Blagojević and Jokić, to reverse the
trend towards a relatively narrow and strict interpretation, was quickly corrected by the Appeals
Chamber. Although debates remain about some issues, the broad principles set out in th e
February 2007 Judgment made a great contribution to the consolidation of a body of law that is
now relatively clear and, above all, foreseeable and predictable in its application and consequences.
The challenge, in this case as in others, is to understand and apply the facts to an established body
of law rather than to break new ground through radical or novel interpretations.
77. Mr. President, Members of the Court, I am grateful to you for giving me the opportunity
to present this rather academic discussion on the law of genocide. I hope it is of assistance in your
deliberations. May I now ask you to give the floor to the Agent of Serbia, Mr. Obradović.
The PRESIDENT: Thank you very much, Professor Schabas. I now give the floor to the
Agent, Mr. Obradović; you have the floor. - 54 -
Mr. OBRADOVIĆ: Thank you very much, Mr. President.
T HE ISSUE OF EVIDENCE PRODUCED BY THE A PPLICANT
1. Introduction
1. Mr. President, allow me to turn now to another important issue: the issue of evidence.
Last week, the Court could hear Mr. Kožul, the witness called by Croatia, who testified about his
tragic experience in Vukovar. However, the witness commenced his testimony by denying that the
copy of the original statement shown to him was his statement. Sir Keir Starmer was assisted a
little bit by the interpreter who clarified that there were actually two statements in front of the
witness. One of them was the statement of 23 March 1993, which had been translated into English,
and to which he referred in his testi mony. This was the document he was invited to adopt by
counsel for Croatia. But he also spoke of another statement that was shown to him because it
somehow also appeared with the Croatian original. It was a statement of 20 May 1992 prepared by
the Croatian police. Now, the witness who is obviously an honest man, and who is the victim of a
terrible crime, said that the police statement was not accurate, that he had not signed it, and that he
143
would never sign it . The first page of that statement fabrica ted by the Croatian police is shown
on your screen 144.
2. The next statement on the screen is the first page of the original of Annex 189 to the
Memorial, to which Professor Sands referred in his recital of “well -documented” atrocities 14.
They are so similar. “Coincidence? Surely not!” In these proceedings, the Applicant has referred
to 209 such domestic police reports made during the war, out of which 189 originals in the Croatian
language were delivered to the Court as unsigned 14. The document that Mr . Kožul refused to
adopt is one such document. There is no doubt that, if the alleged authors of the other, similar
police statements had also been called to testify, and if they had testified honestly , as did
143
CR 2014/7, p. 13.
14Copy of the original delivered by Croatia as Annex 154 to the Memorial and shown to the witness Kožul
before his testimony.
145
Copy of the original delivered by Croatia as Annex 189 to the Memorial, referred to by Prof. Sands
(CR 2014/6, p. 58, para. 18).
146
See, for examples, copies of the originals delivered by Croatia as Annexes Nos. 35, 202 & 254 to which
Prof. Sands referred (CR 2014/6, paras. 22, 29 & 32). - 55 -
Mr. Kožul, the fact that these unsigned stateme nts were all prepared by the police and are entirely
unreliable, would be quite clear. This is so characteristic of the Applicant’s evidence. It is a
message of “demonization” of Serbs, founded upon fabricated and false documents.
3. At the same time, this reflects how strong disagreement remains between the Parties
concerning this issue. The Parties have so far applied the fundamentally different approaches to the
presentation of evidence. Serbia respectfully requests the Court to give a proper weigh t to this
important question. Otherwise, the dispute concerning genocide would be transformed into a new
and never-ending quarrel vis-à-vis reliability of the Croatian evidence. Moreover, we think that the
significance of this question goes even beyond the interest of the subject-matter of the case at hand,
and that the Court, by determining its position to the issues raised by Serbia, can give guidance to
the parties for future international litigations.
2. The Applicant’s odd approach to the method of proof
4. Last week, Sir Keir Starmer criticized our approach to this issue, and said that “even if the
Respondent won every argument in the pleadings about every piece of evidence over which it seeks
to quibble, it would make no difference to the totality of the evidence and the overall outcome of
147
the case” . Firstly, I do not quibble; I defend my country charged with genocide. I have a strong
view that the Applicant’s claim is based on the problematic evidence that cannot be used before a
court of law. Secondly, if one won every argument about every piece of evidence, what would be
then the totality of evidence left behind? Those evidence accepted by the ICTY? Thirdly, Serbia,
as I will later explain in detail, does not challenge that serious crimes were committed against the
Croats, but tries to protect itself from exaggerations and a “cherry pickin g” tactic used by the
Croatian counsel: when they find an encouraging sentence for the Applicant’s case in the ICTY
judgements, they take it and put on t he screen; but when the ICTY findings are silent or say
something that is not in favour of the Applicant’s claim, our learned opponents seek help of the
unsigned statements and the reports of their State bodies.
14CR 2014/10, p. 53, para.14 (Starmer). - 56 -
5. In our written pleadings, we expressed the view that Croatia produced a great number of
documents which cannot be used as evidence because they do not fulfil minimum evidentiary
148
requirements; those are the documents without any probative weight. Nota nostra manet .
6. Serbia also emphasized the importance of discussions on the method of proof contained in
the judgments of this Court. In our view, the Court has established a useful practice emanating
from the general principles of evidence law. Unfortunately, it seems that Croatia in these
proceedings has persistently demonstrated a lack of respect for all those good rules on evidence,
even those existing before its own judiciary.
2.1.Documents prepared by a party especially for the case ought to be treated with caution
7. For example, in spite of the Court’s practice that it would “treat with caution evidentiary
materials specially prepared for [the case in question]” 149, the Applicant produced extensively its
own lists, graphics, official reports and statements, aiming to prove by those home -made
documents the existence of crimes, victims, mass graves, detention camps, or simply, the alleged
150
names of paramilitary units . Many of the Applicant’s lists appear as inaccurate and unreliable,
as we explained in the Rejoinder 151.
2.2.The lack of information about the circumstances under which documents have been
generated
8. The Court’s interest to review the process in which the document tendered as evidence has
152
been generated has also been neglected by the Croatian side. In 154 affidavits annexed to the
Memorial, the Applicant did not indicate who was the person or the body that took the alleged
153
statement, in which procedure, and under which circumstances . The provenance of many maps,
photos and graphics presented in the Memorial is also unknown.
148See Counter-Memorial of the Republic of Serbia (CMS), Chap. III, and Rejoinder (RS), Chap. III.
149Armed Activities on the Territory of the Cong o (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p. 201, para. 61.
150See judges’ folders of 6 Mar. 2014: map of mass graves, map of individual graves, table of camps; see also
plate 12 in the Memorial.
151
RS, paras. 265-271.
152
Bosnia, Judgment, I.C.J. Reports 2007 (I), p. 135, para. 227.
153The numbers of those statements are listed in fn. 110 on p. 67 of the Counter-Memorial. - 57 -
2.3.Hearsay is not conclusive evidence
9. The affidavits produced by the Applicant are also full of hearsay. While the Court prefers
154
“contemporaneous evidence from persons with direct knowledge” , or, in other words, “evidence
obtained by . . . persons directly involved” 15, and assesses hearsay “as allegations falling short of
conclusive evidence” 15, Croatian team urges reliance upon such materials before the international
157 158
courts and tribunals . Our view to this issue is also given in the Rejoinder in detail .
2.4.The testimony of State officials in favour of their Governments cannot be taken as
reliable
159
10. Although the Court calls for evidence confirmed by impartial persons , and reasonably
points out that the value of presented reports depends, among other things, on the source of the
160
item of evidence , Croatia continues to rely on partisan opinions: it has called its deputy minister
to testify here as an “expert witness”. In Military and Paramilitary Activities in and against
Nicaragua, as well as in Armed Activities on the Territory of the Congo, the Court found that it was
inappropriate to rely on the testimony of State officials. The Court said that a
“member of the government of a State engaged . . . in litigation [before this Court and
especially] litigation relating to armed conflict [would] probably tend to identify
161
himself with the interests of his country . . .” .
We could not agree more. Serbia did not call its officials to testify. With due respect to
Colonel Grujić, Serbia questions the wisdom of reliance on his statement. The exception, of
course, ought to be made for the statements of Colonel Grujić which were against the interests of
162
his State in this case .
15Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p. 201, para. 61.
15Bosnia, Judgment, I.C.J. Reports 2007 (I), p. 131, para. 214.
156
Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 17.
157
Reply of Croatia (RC), para. 2.44.
15RS, paras. 256-258.
15Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p. 201, para. 61.
16Bosnia, Judgment, I.C.J. Reports 2007 (I), p. 135, para. 227.
16Military and Paramilitary Activities in and again st Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 43, para. 70; Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61.
16See Bosnia, Judgment, I.C.J. Reports 2007 (I), p. 135, para. 227. - 58 -
11. On Friday, Croatia a nswered the question of Judge Greenwood concerning relevant
163
numbers of killed and imprisoned in relation to the events in Vukovar . It was clearly shown that
the Croatian State records were far away from completeness. But that is not the main problem. By
avoiding to call a ne utral expert who would test the method of collecting data, Croatia actually
deprived the Court from the opportunity to evaluate the figures presented in the Grujić report.
12. I would not like to be answered next week that our position is defensive. In
paragraph 171 of the Counter -Memorial, Serbia declared its willingness t o discuss reaching an
agreement on relevant facts with Croatia. It was in January 2010. Could we offer more in the
interest of reconciliation? But the other side was silent because the agreement could not be limited
to the facts related to the crimes against the C roat population; it should also include the facts
relevant to suffering of the Serbs in Croatia.
2.5.Who can be an expert witness before the Court?
13. Calling Ms Biserko, a human rights activist, who has a degree in economics, to be an
expert on political, historical and constitutional issues, goes even beyond the ideas on the method
of proof that have so far been recorded among the P arties before this Court. M s Biserko does not
possess the appropriate level of knowledge and profes sional skills in the fields of politics,
contemporary history and constitutional l aw of the forme r Yugoslavia which should enable her to
be an expert or expert witness whose opinion, whatever it is, could be accepted by a court of
law. This was clearly shown during cross-examination.
14. The statement of M s Biserko is problematic in many ways. I would just remind the
Court of the introductory sentence of her opinion:
“I have been asked by the Croatian legal team to provide a statement which will
bear light on the Serbian national program which was the main trigger for the war in
the former Yugoslavia.”
Hence, it seems obvious that the Applicant provided her with a task to elaborate its own thesis in
this case, instead of asking her for an objective analysis. She got the task, but also an outcome, as
many campaigners dependent on the sources of donors work today. It was clearly shown in her
16CR 2014/12, p. 11 (Starmer). - 59 -
reluctance to answer the question about the task that President Mesić had got in the process of
disintegration of the Federal State. She was biased.
15. Members of the Court, in addition to these sever al observations, the Respondent
considers that two problems require your special attention.
3. The lack of signatures on the originals of affidavits produced by Croatia
16. The first problem is related to affidavits produced by Croatia. The Respondent observes
that 332 affidavits annexed to the Memorial do not contain the signature of the person who
allegedly gave the statement 164, while 161 affidavits do not contain the signature of the person who
allegedly took those records. Ten years after the submission of the Memorial, the Croatian police,
in response to the objection raised b y the Respondent, collected 188 signatures missing from the
165
affidavits that were originally made in Croatian .
17. Distinguished Members of the Court, collecting the signature s can be appropriate for a
petition to the local government, but not for the case concerning the Genocide Convention. If
collecting the signatures among the citizens was a proper method for supporting a claim in the
inter-State litigations, the overpopulated countries, I suppose, would always win their cases.
18. The Respondent reiterates that the affidavits submitted by the Applicant do not fulfil
minimum evidentiary requirements. As such, those materials cannot be treated as documents equal
to, for example, exhumation reports, military orders or decisions by a government. They also
cannot be equated with the public statements of a head of State recorded by press. These affidavits
are rather out -of-court testimonies, taken without any procedural safeg uards they cannot be
tested for their authenticity and veracity through cross-examination. Seven witnesses called by the
Applicant to testify in the course of these oral proceedings may improve the formal shortcomings
of their own written statements, bu t not the rest of unsigned statements, especially not in the cases
in which the majority of those statements is not related to the events described by these seven
witnesses.
16The numbers of those affidavits are listed in para. 155 of the Counter-Memorial.
16RC, Ann. 30. - 60 -
19. Moreover, I would like to emphasize that the written records submitted with the
Memorial and Reply were even not taken in accordance with the rules of the Croatian domestic
legal proceedings. Even when the statements were recorded on the court -like formularies, typical
for all courts in the former Yugoslavia, they do not contain the signatures of the judges who
166
allegedly took them . This is evident from the copies of the originals delivered by the Applicant
separately from the annexes to the Memorial.
20. I will give one example. In the Memorial, the Applicant quotes a horror statement
contained in Annex 143. That was the statement of an individual who allegedly reported that in
Vukovar,
“many dead, bloody people were found and one woman had a cut abdomen, her baby
was taken out and replaced with a dog with the sign: ‘This i s what Croatian mothe167
give birth to.’ The container was full of hands, heads, legs, sticking out . . .’”
21. The Respondent observes as follows.
(a) The copy of the original statement given in Croatian does not have the signature of the person
who allegedly gave that statement.
(b) Nor can we find from that document in which procedure and under which circumstances her
statement was recorded.
(c) The quotation in the Memorial is not quite accurate it does meet n either the text of the
original nor its translation.
(d) From the information contained in the statement , it seems that the person named in that
document as a source of information was not an eyewitness of the reported horror it was
hearsay.
(e) That allegation has never been repeated in any of the three courtrooms of the neighbouring
Tribunal.
(f) The alleged bearer of the alleged information has not been called to testify in these hearings.
(g) Nor has the person who allegedly recorded her statement been called to testify.
How can we believe then in this horrific allegation from the Memorial? And should we continue
with this analysis for each and every piece of evidence? Instead of that, we prepared a table
16See RS, para. 248.
16MC, para. 4.166. - 61 -
submitted in the judges’ folders, which contains a sample review of the sources of quotations used
by Professor Sands last week in his speech, under the subheading “The ethnic purpose of the
168
Respondent’s campaign” . I think it is a representative example of the way in which Croatia has
used evidence in this case.
22. Mr. President, let me assure you that it is not our intention to undermine the importance
of the victims’ testimonies. It may be that some of those statements are true and accurate, but they
cannot be checked. Consequently, this is not an appropriate method of proo f in the case before the
International Court of Justice.
4. Documents prepared by the Croatian police
23. The second problem that I would like to emphasize today comes with the docum ents
169
generated by the Croatian police. Namely, 209 documents annexed t o the Memorial , as well as
23 annexed to the Reply, are the official records of the police interrogations.
24. The Respondent respectfully submits that those official records, even if they were
signed rarely by the persons who allegedly gave the st atements, must be disregarded for the
following reasons. Firstly, there is no doubt that the police of the State engaged in the so important
international litigation cannot be seen as impartial. Serbia does not use in this case materials
generated by its own security services.
25. Secondly, it is evident today that Croatia’s official organs were secretly engaged in the
large-scale assi stance and support to the defenc e of the Croatian Generals accused before the
ICTY. This is confirmed by many secret Cr oatian documents which can be found today in public
domain, as for example, the letter of Deputy Minister of Defence, Mr. Markica Rebić, addressed to
President Tudjman on 4 June 1998, in which the defenc e of the accused Croats before the ICTY
was associated with the national interest of the Republic of Croatia 170.
26. Thirdly, the current President of Croatia, H.E. Mr. Ivo Josipović, in his statement to the
B92 TV station in December 2012, admitted that it was “absolutely clear” that until 2000 the
168
CR 2014/6, pp. 56-62, paras. 13-30 (Sands).
16The numbers of those statements are listed in f n. 112 on page 67 of the Counter-Memorial.
170
ICTY, Mrkšić et al., Exhibit No. 299, available on http://icr.icty.org/frmResultSet.aspx?e=fteplm32o5xojx
451dhuswji&StartPage=1&EndPage=10. - 62 -
co-operation of the Republic of Croatia with the ICTY had been “faked”, characterized even with
171
the gathering of false evidence . I would point out that most of the evidence that I objected to
now was prepared by the Croatian p olice within the same time period, th at is to say until the year
2000.
172
27. Last but not least , the official records of the police interrogations cannot be used as
evidence even before the Croatian courts. According to the Croatian Criminal Procedure Code, the
police authority may not exa mine citizens in the role of defendants, witnesses or expert
witnesses 173. Any information given by the citizens to the Police shall be excluded from the
174 175
Court’s file by the investigating judge . The same rules are applicable in Serbia . This is an
important procedural safeguard based on the principle of direct testimony before the trial chamber.
What the Police recorded for the Prosecutor must be later proven at the trial. It cannot be taken as
a proof by itself.
5. Conclusion
28. In our written plea dings we called this sort of evidence produced by Croatia
“inadmissible”, in a general meaning of that term, but with a full awareness that the International
Court of Justice, apart from the requirement for certification of copies of the documents annexed to
the written pleadings, contained in Article 50 of the Rules of Court, and the r equirement contained
in Article 56 of the Rules of Court that stipulates the limited opportunities for production of
documents in the oral proceedings, does not contain any f ormal prohibition vis -à-vis the
submission of evidence in the written phase. This means that all those unreliable papers remain in
the Court’s file, and I hereby respectfully claim that they are inappropriate to be used as evidence.
29. The Respondent c onsiders that the production of such a large amount of documents
without any probative weight has been directed merely to confuse the Court in its evaluation.
171
Available on http://www.b92.net/info/vesti/index.php?yyyy=2012&mm=12&dd=07&nav_categ…
_id=667053in Serbian; translation into English submitted to the Court on 8 August 2013.
172See RS, paras. 254 & 255.
173Criminal Procedure Code of the Republic of Croatia, Art. 208(4); translation into English available on -
legislationline.org/.../id/.../Croatia_Criminal_proc_code_am2009_en.pdf
174
Ibid., Art. 86 (3).
175Criminal Procedure Code of the Republic of Serbia, Art. 288(2) and Art. 237(3); translation into English
available on - http://legislationline.org/download/action/download/id/3560/file/Serbia… . - 63 -
ANSWER TO THE QUESTION POSED BY JUDGE B HANDARI
30. With your permission, Mr. President, I would now deal with the question posed by
Judge Bhandari about the probative weight that should be given to the three different categories of
evidence.
31. Firstly, the Respondent shares the Applicant’s view that the testimony of witnesses who
were called for cross-examination should be assessed in light of their reliability and credibility, as it
is common in all judicial systems.
32. Secondly, the Respondent submits that the testimony of witnesses who were identified
for live testimony by a party but not called for cross-examination by the opposite party should not
be given less probative weight only for that reason. The Parties in this case adopted last year the
Agreement on method of examining the witnesses and expert -witnesses, by which they agreed that
the written statement of witnesses called to testify in the oral proceedings should be given in lieu of
examination-in-chief. That agreement was recognized by the Court’s decision regarding the
conduct of the witness testimony. The Parties also agreed that those witnesses for whom the other
side does not wish cross-examination should not come to The Hague. That was so decided in order
to accelerate the oral proceedings. The Parties did not intend, as the Applicant confirmed last
week, that their choic e not to cross -examine a witness should undermine the probative weight of
the written statement given in lieu of examination -in-chief. Such a view would not be fair, and the
Respondent considered that the Court was not in doubt in relation to this procedural issue.
Otherwise, the Respondent would reconsider its position vis-à-vis the need for live testimony of its
seven witnesses and expert-witness for whom Croatia has not wished cross-examination.
33. Of course, the written statement of the witnesses g iven in the course of the oral
proceedings may be of less probative value if they are inconsistent with other evidence produced
by the Parties and assessed by the Court as fully convincing evidence, or if those statements
possess shortcomings that are self-evident, as it is the case with the poor substance of the statement
of expert-witness George-Mary Chenu, called by Croatia.
34. Thirdly, the statements that have been annexed to the written pleadings should be treated
as out-of-court testimonies, also known as affidavits. The Respondent agrees in principle with the - 64 -
Applicant that all those statements should be assessed in light of the criteria established in the
176
Bosnia case , in the same way as all other documents furnished by the Parties.
35. In the Respondent’s view, the Court should give a special attention to the transcripts of
testimonies accepted before the International Criminal Tribunal for the former Yugoslavia. Those
transcripts were made by the U nited Nations professional staff, while the te stimony under the
solemn declaration was tested through cross -examination, re-examination and additional questions
posed sometimes by the ICTY judges.
36. The testimonies given before the municipal courts, in accordance with the domestic rules
of procedure, should also take the significant attention of the Court.
37. Finally, the unsigned statements, the statements made in unknown procedure, as well as
the statements fabricated by the official bodies lacking the proof of impartiality, should be
disregarded, in light of my previous explanation.
A GENERAL VIEW TO THE A PPLICANT ’S FACTUAL ALLEGATIONS
38. Mr. President, the fundamental disagreement of the respondent State with the Applicant’s
approach to the unsigned statements and police reports does not mean that the Serbian Government
denies that serious crimes were committed during the armed conflict in Croatia. Yes, the serious
crimes were perpetrated against the members of the Croatian national and ethnic group. They were
committed by groups and indiv iduals of Serb ethnicity. It goes without saying that Serbia
condemns such crimes, regrets that they were committed, and sympathizes profoundly with the
victims and their families for the suffering that they have experienced.
39. The Higher Court in Bel grade has so far convicted and imprisoned 15 Serbs for the war
crimes against prisoners of war at the farm Ovčara near Vukovar, and another 14 for the war crimes
against civilians in the village of Lovas in Eastern Slavonia. The second judgment has recent ly
been quashed by the Court of Appeal due to the shortcomings concerning the explanation of the
individual criminal liability for each accused, and the trial must be held again. A n additional ten
cases for the war crimes committed by Serbs in Croatia hav e been concluded before the Higher
Court in Belgrade. In total, 31 individuals of Serb nationality have so far been convicted and
17Bosnia, Judgment, I.C.J. Reports, 2007 (I), p. 135, para. 227. - 65 -
177
imprisoned, while there are others being accused . Investigations on several crimes are under
way, including the crime in Bogdanovci.
40. Thus, despite the careless approach to the presentation of evidence by the Applicant, it is
not in dispute that murders of Croatian civilians and prisoners of war took place during the conflict.
This was established also in the ICTY Judgment against Milan Martić, who was convicted as the
former Minister of Interior of the Republic of Serbian Krajina, as well as in the case Mrkšić et al.;
the last case is also known as “Ovčara” 178. In that notorious crime, the ICTY recorded 194
prisoners of war who were kill ed. This was the gravest mass murder in which Croats were the
victims during the entire conflict.
41. If one carefully makes a review of all ICTY indictments in which the crimes against
Croats were alleged, he or she will find many victims, indeed. Ther e is no doubt that many Croats
also died in the combat activities during the five -year conflict. Yet, from the point of view of the
subject-matter of this case, those numbers of victims are of an entirely different magnitude than the
many those killed in Srebrenica or in Krajina over the course of several days.
42. Mr. President, I am fully aware of the possibility that more murders of the Croatian
civilians and prisoners of war were committed, but we cannot see reliable evidence on that. As I
have already stated, the other documents produced by the Applicant with the written pleadings
containing allegations on killing cannot be taken as verifiable and reliable.
43. Now, in light of all of these necessary observations, allow me to draw your attent ion to
the allegation that “JNA and subordinate Serb forces killed over 12,500 Croats”, that “they caused
serious mental and physical harm to tens of thousands” and “raped more Croat women tha n can be
179
known” . We have not seen yet any single piece of evid ence that contains these estimations, and
I am sure today that such evidence does not exist. Moreover, Colonel Grujić, as the Applicant’s
State official, testified here about the exhumed bodies and missing persons in accordance with the
Croatian official records, but he did neither confirm nor claim any figure of over 12,500 victims
177
See http://www.tuzilastvorz.org.rs/html_trz/pocetna_eng.htm.
17See more, RS, paras. 476-486.
179
CR 2014/6, p. 45, para. 13 (Špero). - 66 -
killed. Does it mean maybe that the Croatian legal team representing the people who are alleged
victim of genocide forgot to ask the expert witness for that relevant data?
44. This was the Respondent’s general position to the Applicant’s allegation concerning the
killing as one of the act us reus of the crime of genocide on which the Applicant’s claim is
primarily based. The Respondent also observes that the Applicant last week heavily relied on one
sentence from the Rejoinder that the acts described in the Croatian pleadings theoretically might
correspond to the actus reus of genocide. It may be that the word “theoretically” was not the right
one. “Conditionally” would be better choice because the crime of murder can be the act of
genocide indeed, if it was perpetrated with intent requir ed for that crime. Without that dolus
specialis, murder remains murder, it can be characterized either as a war crime or an act of the
crimes against humanity. This could be a task for Croatia to comment next week, but definitely, it
cannot seek proving a half of genocide: the actus reus cannot exist as such without the required
intent.
45. Indeed, the Applicant has not produced any single document or statement containing
evidence on the dolus specialis of the crime of genocide. The JNA intelligence r eport contained in
Annex 63 to the Reply and shown on the screen last week several times, is nothing else but a
faithful attempt of one colonel to warn the JNA command in Belgrade that paramilitaries in Eastern
Slavonia committed horrific crimes, outside t he JNA control. I cannot believe that the Applicant
really expects that the legal characterization of those crimes as adopted by the JNA
Colonel Djokovic binds the International Court of Justice. Nor can it be treated as an admission of
State responsibility, as the Applicant submits. And which State, after all? SFRY?
46. In the absence of the Serbian plan to commit genocide, the Applicant seeks to find a
shortcut through the pattern of behaviour of the perpetrators. Yet, it is a long way; the pattern in
this case does not convincingly demonstrate the genocidal intent. Following what we heard in the
Great Hall of Justice last week, it is obvious that neither a substantial, nor a significant part of the
Croatian national and ethnical group was destroyed. It was clear. The last attempt of the Applicant
was to invoke the opportunity factor. The Croatian counsel said: “The opportunity presented to
the perpetrator is highly significant, and what happened when that opportunity was presented is - 67 -
obviously important.” 180 We cannot agree more. It is just at the opportunity factor where the
Croatian claim definitely crashed. Allow me to give you a couple of examples.
47. Firstly, the Applicant has not shown evidence that the Croat population was not given a
way out from Eastern Slavonia during the heavy battles for the towns and villages. The civilian
population during the shelling of Vukovar was in the shelters and, after the fall of the town, the
JNA conducted the evacuation of women and children from the destroyed town. The ICTY in
Mrkšić found: “The women and children, who, with some others, were being evacuated had to
board different buses depending on whether they wanted to go to Croatia or to Serbia.” 181 Hence,
they were not killed. Nor were they attacked while being in the refugee columns as it was the case
with the Krajina Serbs during“Operation Storm”.
48. Secondly, witness Kožul testified about more than 1,000 men imprisoned with him in
182
Serbia, in Stajićevo. They were released, not killed . The Applicant produced to the Court a list
of the persons detained on the territory of Serbia in 1991/ 1992, with names of 2,786 Croats 183.
Were they killed or released? If the intent to destroy the group existed, the civilians and detainees
could be the ea siest target for the alleged perpetrators of genocide, and the opportunity for their
destruction was in place.
49. Thirdly, the Respondent produced to the Court a document of the Military Medical
Centre in Novi Sad, Serbia, which contain s a list of indivi duals arrested in Croatia who received
184
professional medical treatment in that hospital . In the witness statement of the late
Stjepan Peulić, the Court can also find that after the crime in Lovas, the wounded civilians were
brought to the hospital in Srem ska Mitrovica, also in Serbia. This is not how an army which
possesses intent to commit genocide usually conducts itself.
50. According to the Applicant, the remaining Croat civilians in many villages of Eastern
Slavonia were displaced from March to May 1992, about six months after the takeover of their
18CR 2014/12, p. 29, para. 63 (Starmer).
181
ICTY, Mrkšić et al., Trial Judgment, 27 Sept.2007, para. 213; emphasis added.
18CR 2014/7.
18RC, Ann. 47.
184
RS, Ann. 47. - 68 -
185
villages . It can be found in the Memorial. Should I say again that all opportunities were in place
during those six months for their physical destruction, if such intent existed? We kindly ask the
Applicant to respond to these observations in the second round.
51. Mr. President, this concludes our presentation today. Thank you very much for your
kind attention.
The PRESIDENT: Thank you, Mr. Obradović. The Court will meet again tomorrow at
10 a.m to hear the continuation of Serbia’s first round of oral argument. Thank you.
The Court is adjourned.
The Court rose at 1 p.m.
___________
185
See MC, paras. 4.30, 4.37, 4.46, 4.61, 4.80, 4.93.
Public sitting held on Monday 10 March 2014, at 10 a.m., at the Peace Palace, President Tomka presiding, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)