Public sitting held on Friday 14 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 Cr

Document Number
118-20140314-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
2014/18
Date of the Document
Bilingual Document File
Bilingual Content

Corrigé
Corrected

CR 2014/18

International Court Cour internationale

of Justice de Justice

THE HAGUE LA HAYE

YEAR 2014

Public sitting

held on Friday14 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 vendredi14 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
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
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, Universit y 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’Universi té 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. Da maška, 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. I declare open this last sitting of the

Court devoted to the first round of argument of Serbia and I invite Mr. Jordash, counsel for Serbia

to address the Court. You have the floor, Sir.

Mr. JORDASH:

O PERATION STORM

Legal basis for responsibility of the Applicant forviolations
of the Genocide Convention

1. Thank you, Mr. President, distinguished Members of the Court, it is my honour to address

the Court with regard to Serbia’s counter-claim.

2. Today, in the next 80 minutes, I am going to address the specific legal basis that

establishes the Applicant’s responsibility for genocide arising from Operation Storm.

The Respondent’s case in summary

3. The Respondent puts its case on three bases, the first two being alternatives. First, that the

planning, execution, and aftermath of Operat ion Storm constituted direct involvement in acts of

genocide under Article II (a) to (c) of the Genocide Convention. The evidence shows “fully

conclusively” 1that the Republic of Croatia has violated its obligations under the Convention by

committing during and after Operation Storm the following acts with intent to destroy, as such, the

Serb national and ethnic group living in the Krajina region (U nited Nations Protected Areas North

and South) in Croatia: (a) killing members of the group; (b) causing serious bodily or mental harm

to members of the group ; and (c) deliberately inflicting on the group conditions of life calculated

to bring about its physical destruction.

4. The Respondent also submits that if the Court is not satisfied on the primary basis, Croatia

is also responsible under Articles III (b) to (e) of the Convention for conspiring, inciting,

attempting or being complicit in genocide.

1Case concerning the 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), p. 129, para. 209 (hereinafter
Bosnia Judgment). - 11 -

5. Finally, it is submitted that the evidence is certain 2. It demonstrates that the Republic of

Croatia h as violated Article s I and IV of the Convention by having failed to punish acts of

genocide.

6. The arguments I will develop apply to each aspect of the counter-claim.

7. Contrary to the approach taken by the Applicant, we do not argue for a lowering of the

standard of proof or a change in the applicable law. If there was a genocidal plan put into effect

during this civil war, Operation Storm was surely it.

8. A careful analysis of the Croatian leadership’s collective, hateful and escalating intent, the

Brioni plan and the destruction planned and executed, situated in the prevailing context,

demonstrates the merits of this counter-claim.

How the Respondent puts its case

9. I would like to begin by identifying precisely what the counter-claim is and what it is not.

In contrast to the Applicant’ s c laim, we do not ask you to consider it in the abstract. The

Respondent does not seek to avoid the realities on the ground by removing the context of war or

other salient issues that plainly must bear upon the Court’s assessment.

10. Contrary to the Applicant’s assertion at paragraph 11.127 of the Reply, the counter-claim

does not rest upon “proof of indiscriminate shelling resulting in the ‘exodus’ of the Serbs” and the

“systematic and planned killings” of those that remained.

11. Instead, it rests on three chronological phases that may be crystal lized as follows: Phase

One, the planning at Brioni; P hase Two, the successful execution of that plan between 4 and

8 August 1995; and, P hase Three, the final and devastating destruction of those unfortunate

enough to be left behind, lasting for the months beyond.

12. As our pleadings show, these are not the only sources of probative evidence, for

example, the legal measures designed to prevent the Krajina Serbs from returning and the failure to

punish that extends to this day are also evidence of the specific intent. However, these phases are

the most pivotal. Each is sufficient to demonstrate a violation of the Genocide Convention.

2Bosnia Judgment, p. 130, para. 210. - 12 -

Together they provide over whelming proof of the actus reus and mens rea of the crime of

genocide.

13. It is worth pausing here for a moment to say something about how the Respondent puts

its case in relation to each phase, the nature and standard of proof required, and how evidentially

they mutually reinforce and support a finding of specific intent.

Phase One: the genocidal plan

14. Phase One, the genocidal plan, rests upon the Brioni transcript, containing an explicit

plan to commit genocide. I will examine the terms of tha t plan to show how the Croatian

leadership intended the commission of the acts enumerated in Article II (a) to (c) of the Genocide

Convention in order to destroy the Krajina Serbs, in whole or in part.

15. As noted by the Applicant, and as Judge Bennouna noted in the Bosnia Judgment, States

3
tend not to go around proclaiming an intention to destroy a part of a particular group . However, in

this instance, Croatia did. It is there, in the Brioni transcript.

16. As noted by the Applicant, citing to Professor Schabas, “the Court is required to find

indicators of State policy to deduce what the intention of the State, or those acting on its behalf of,

or under its control actually was” . As the ICTR has stated, “the existence of such a plan . . .

5
[is] . . . strong evidence of the specific intent requirement for the crime of genocide” . It is direct

evidence from which the specific intent to commit genocide may be inferred.

17. Unlike circumstantial evidence, the standard of proof required to prove genoc idal intent

from this express plan will be met where they may be other possible explanations but , nonetheless,

the Court is fully convinced that the only proper inference is that the plan involved the intentional

commission of genocidal acts.

18. The prohibition against attacking civilians stems from a fundamental principle of

international humanitarian law, the principle of distinction, which obliges warring parties to

3Bosnia Judgment, p. 362; declaration of JudgeBennouna; Memorial of Croatia ( MC), para. 7.34; Reply of
Croatia (RC), para. 8.7; Counter-Memorial of Serbia (CMS), para. 48.

4Schabas, W., Genocide in International Law: The Crime of Crimes, Cambridge University Press, 2nd e d., 2009,
(hereafter Schabas), p. 518.
5
ICTR, Kayishema and Ruzindana, Trial Chamber Judg ement, para. 276; CMS, Chap. II, para. 48, citing to
Jelisić, IT-95-10-A, Appeals Chamber Judgement, 5 July 2001, para. 48. - 13 -

distinguish at all times between the civilian population and combatants and between ci vilian and

6
military objectives and accordingly to direct their operations only against military objectives .

19. As an examination of the plan shows, the Croatian leadership designed a plan to

ethnically cleanse the Krajina of all or a substantial part of its Serb population through the removal

of this distinction.

20. The plan guaranteed  and was intended to guarantee  that ethnic cleansing and the

destruction of a substantial part of the Serb national and ethnic group living in the Krajina region

occurred in parallel. The objectives were inextricably linked. The express detail of this plan

amounts to conclusive evidence of the genocidal intent of the Croatian military and political

leadership 7.

Phase Two: the execution of the plan (between 4 and 8 August)

21. Phase Two of the Applicant’s destructive plan was the execution of Operation Storm

between 4 and 8 August 1995. The Respondent rejects the Applicant’s claim that if the

Respondent is unable to prove that a plan or policy to commit genocide was adopted at Brioni, then

8
the case must fail .

22. Intent may be illuminated by circumstantial evidence, including by words spoken or

9
deeds done or a pattern of purposeful action . The deed d one, the purposeful action, is

Phase Two  the plan in action  Operation Storm and the largest, single, ethnic cleansing

campaign in living memory, followed by Phase Three, the most brutal of destructive aftermaths.

23. Proof of specific intent in P hases Two and Three, when viewed alone, require an

examination of a p attern of atrocities committed over many communities focused on the targeted
10
group .

24. The standard of proof is therefore high. As this Court ruled in the Bosnia case, the

specific intent to destroy the group in whole or in part,

6
Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol 1), adopted on 8 June 1977, (hereaf ter “AP1”), Art. 48.
7
CMS, para. 179.
8RC, para. 12.6.
9
Kayishema and Ruzindana, Trial Chamber, May 21, 1999, paras. 93, 527.
10
CMS, Chap. II, para. 53; BosniaJudgment, pp. 196-197, para. 373; emphasis added. - 14 -

“has to be convincing ly shown by reference to particular circumstances, unless a

general plan to that end can be convincingly demonstrated to exist; and for a pattern
of conduct to be accepted as evidence of its existence, it would have to be such that it
could only point to the existence of such intent” . 11

25. Lacking any such general plan, the Applicant seeks to lower this strict threshold, arguing,

and I quote,

“that the ICTY has not adopted such a strict rule. And the Applicant submits that the
standard of proof required to prove genocidal intent will also be met where there may
be other possible explanations . . ., but nonetheless the Court is fully convinced, on the
facts of the particular case . . .” 12

26. We urge this Court to resist the Applicant’s submission. The Applicant’s case does not

prove genocide. There is no reason to lower the standard of proof to meet that deficiency.

27. Contrary to the Applicant’s submissions last week, this standard of proof is entirely

consistent with the ICTY and ICTR’s approach to circumstantial evidence 13 and also with this

Court’s approach in the Bosnia case, as well as the Corfu case, discussed by Professor Schabas on

Wednesday this week. As this Court concluded in the Bosnia case the specific intent must be

established and “is defined very precisely” 14. The specific intent is to be distinguished from other

reasons or motives the perpetrator may have. Great care must be taken in finding in the facts a

sufficiently clear manifestation of that intent 15.

28. It is the Respondent’ s case that Phase Two  the widespread and systematic killing,

physical and mental harm and the deliberate infliction on the Krajina Serbs of conditions of life

calculated to bring about its physical destruction on its own  gives rise to such an inference.

29. The Court need look no further than Phase Two and the relevant indicators that have

been discussed in the ICTY and the ICTR jurisprudence . They sum up, as the slide indicates, a

range of indicators: “the number of group members affected”; “the physical targeting of the group

or their property”; “the use of derogatory language toward members of the targeted group” 16; “the

weapons employed and the extent of bodily injury;” “the systematic manner of killing”; “the

11CMS, Chap. II, para. 53; BosniaJudgment, pp. 196-197, para. 373.
12
CR 2014/6, pp. 31-32, para. 9 (Starmer).
13Delalić et al. Appeal Judgement, para. 458.

14Bosnia Judgment,p. 121, para. 187.
15
Ibid., pp. 121-122, para. 188, citing from Kupreškić, IT-95-16-T, Judgement, 14 Jan. 2000, para. 636.
16Gacumbitsi, (Appeals Chamber), 7 July 2006, para. 40; Kamuhanda, (Trial Chamber), 22 Jan. 2004, para. 625;

Kayishema and Ruzindana, (Trial Chamber), 21 May 1999, para. 527. - 15 -

relative proportionate scale of the actual or attempted destruction of a group” 17;and “the repetition

18
of destructive and discriminatory acts” .

Phase Three: The attacks on those that remained

30. Phase Three  the attacks on those that remained  covers the deadly aftermath that

took place in the Krajina in the months after the completion of Phase Two.

31. If there was a scintilla of truth to the Applicant’s claim that the Operation was merely

about a lawful campaign aimed at restoring its internationally recognized borders, and reintegrating

those territories, or even that the Operation was merely about expulsion or mere dissolution of the

Krajina Serbs, then further violence was no longer required.

32. Instead, having driven out all the able bodied civilians who might have offered some

protection; war was unleashed upon the elderly, the disabled and the sick. Anything Serbian was

burnt or destroyed in a crescendo of violence that was as motiveless, as it was destructive. It

speaks eloquently, yet terribly, about the intent at the heart of Operation Storm.

33. When viewed in isolation, any of the three phases point inexorably to the existence of the

required acts and the specific intent. When viewed together, they are overwhelming evidence of a

violation of the Genocide Convention.

34. Let me turn now to Phase One.

Phase One: The genocidal plan

35. As submitted by the Respondent, Operation Storm was the final operation in a series of

military attacks that had been increasingly aimed at ethnically cleansing the RSK. The predecessor

operations, including the attack on the Medak Pocket on 9 September 1993 and Operation Flash on

1 May 1995, involved the commission of a multitude of persecutory acts designed to effect the

mass deportation or forcible transfer of tens of thousands of civilians.

17
Kayishema and Ruzindana, (Trial Chamber), 21 May 1999, para s. 93, 527; Akayesu , (Trial Chamber),
2 Sep. 1998, para s. 523-524; Musema, (Trial Chamber), 27 Jan. 2000, para. 166; Muhimana, (Trial Chamber),
28 Apr. 2005, para. 496; Kajelijeli, (Trial Chamber), 1 Dec. 2003, para. 806; Seromba (Appeals Chamber),
12 Mar. 2008, para. 176; Gacumbitsi, (Appeals Chamber), 7 July 2006, para. 40; Seromba, (Trial Chamber),
13 Dec. 2006, para. 320; Gacumbitsi, (Trial Chamber), 17 June 2004, para. 252; Kamuhanda, (Trial Chamber),
22 Jan. 2004, para. 623; and Kajelijeli, (Trial Chamber), 1 Dec. 2003, para. 804.
18
Prosecutor v. Karadžić (IT-95-5/18), Transcript, 28 June 2012, p. 28768, lines 5-15. - 16 -

36. However, Operation Storm was not only a plan to ethnically cleanse the Krajina Serbs. It

was different in its scale, wilfulness, deliberateness and design and purpose. Before I examine

these differences, it is important to recall this Court’s approach to the distinctions between the

persecution (that was a central feature of the Applicant’s earlier operations) and genocide, as well

as the distinctions between ethnic cleansing and genocide.

37. First, persecution: with regard to the mens rea distinctions between persecution and

genocide, the Court observed in the Bosnia case that

“from the view point of mens rea , genocide is an extreme and most inhuman form of
persecution. To put it differently, when persecution escalates to th e extreme form of

willful and deliberate acts designed to destroy a 19oup or part of a group, it can be held
that such persecution amounts to genocide” .

38. Second, ethnic cleansing and genocide: the relationship between the one and the other is

obviously important. Whilst it benefits the Applicant to blur the distinction, the difference between

the two must be carefully maintained.

39. On the one hand, the Applicant appears to accept the findings in the Bosnia case that

forcible removal and deportation will be a genocidal act only when accompanied by the acts listed

in Article II, and coupled with an intent to destroy part of the group. On this view, the Applicant

accepts and I quote, “ evidence of forcible removal and deportation can be taken into ac count in

20
identifying the existence of a genocidal intent” .

40. On the other, the Applicant seeks to argue that there is “no hard and fast distinction

between the removal of a population or ethnic cleansing and genocide, as scholars recognize,
21
beyond the element of intent” .

41. And yet, the Applicant also claims that genocide does not require proof of intent to

22
physically destroy, only intent “to stop it [the group] functioning as a group” . How, in reasonably

foreseeable circumstances, this latter intent is to be distinguished from that of forcible transfer or

deportation remains unexplained.

19
Bosnia, Judgment, p 122, para. 188; CMS, Chap. II, para. 43, citing from ICTY, Kupreškić et al., IT-95-16-T,
Trial Chamber Judgement, 14 Jan. 2000, para. 636.
20CR 2014/5, para. 16 (Sands).

21Ibid., para. 17 (Sands).
22
Ibid., para. 13 (Sands). - 17 -

42. It is worthwhile returning to this Court’s ruling in the Bosnia case to ground our view of

Phase One of Operation Storm.

43. As this Court ruled,

“the intent that characterizes genocide is ‘to destroy, in whole or in part ’ a particular
group, and deportation or displacement of the members of a group, even if effected by
force, is not necessarily equivalent to destruction of that group, nor is such destructio n
23
[and I emphasize this point] an automatic consequence of the displacement” .

44. Further,

“whether a particular operation described as ‘ ethnic cleansing’ amounts to genocide
depends on the presence or absence of acts listed in Article II of the Genocid e

Convention, and of the intent to destroy the group as such. [ However], acts of ‘ethnic
cleansing’ may occur [and I emphasize this point] in parallel to acts prohibited by
Article II of the Convention, and may be significant as indicative of the presence of a
specific intent (dolus specialis) inspiring those acts.” 24

45. To sum up, there is a hard and fast distinction between ethnic cleansing and genocide,

except when certain restrictive conditions pertain. Ethnic cleansing may be evidence of a

genocidal campaign. When the Article II destructive acts occur in parallel, or are an automatic

consequence of the displacement, this distinction may be a distinction without a difference.

46. Let me now turn to the examination of Phase One, the Brioni plan, with the escalation of

persecutory mental states and the intertwining of ethnic cleansing and genocide firmly in mind.

47. With regard to Phase One, I will address you on two princip al issues that are pivotal to

the issue of an assessment of intent:

(i) the Croatian political and military leadership’s mindset at the time of the Brioni planning

meeting; and

(ii) the inextricable link between the displacement planned and a genocidal campaign.

The Croatian political and military leadership’s mindset at the t ime of the Brioni p lanning
meeting

48. An examination of the views held by the Croatian leadership and their manifestation, not

only in their policies throughout the conflict, but also in the military operations that escalated into

2Bosnia Judgment,p. 123, para. 190; emphasis added.

2Ibid.; emphasis added. - 18 -

Operation Storm, is instructive. It shines a light on the escalating criminal intent to reveal a hateful

collective motive that crystallized into the dolus specialis of genocide by the time of Phase One.

49. As the jurisprudence from the ICTY and ICTR shows  and logic dictates  the words

of an individual play a critical, sometimes decisive, role in assessing whether the dolus specialis

may be inferred. Whilst distinctions may be drawn between, inter alia, hate speech (inciting

discrimination or violence) 25or those that reveal other mental states, such as an “intention to adjust

26
the ethnic composition” of a region , and speech that amounts of exhortations to kill or destroy, in

short, genocidal intent may be inferred from the dissemination or publication of written or spoken

views that display an intention to kill or physically or mentally harm targeted groups 27.

50. As the Court will recall, we heard a lot about Serbian hate speech last week during the

Applicant’s presentation of their case. In order to provide a solid found ation for their claim, they

seek to persuade the Court that this, and not the conduct of Croatia’s political and military

leadership, was the sole cause of the Krajina Serb’s fears and the violence that ensued. I will return

to this issue in the second round of these hearings when addressing the claim.

51. Suffice to say at this stage that such a one-sided account is demonstrably flawed from the

outset, as Mr. Obradović outlined yesterday. There can be little doubt in this case concerning

President Tuđman’s views of the Serbian people, the virulent strain of ethnic hatred that permeated

his administration from the outset of the war, and the ways in which these gradually infused the

conduct and objectives of the military operations.

52. This evidence wi ll help you decide what Tuđman meant when he expressed his fervent

desire during the Brioni planning that Operation Storm plan should ensure that the Serbs “would
28
disappear” and also the objectives sought to be achieved.

53. As the evidence shows, Pres identTuđman, the leader of Croatia and its ruling party, the

HDZ, as well as the Supreme Commander of the Croatian forces at the time, saw genocide as a

solution to the problem presented by the Krajina Serbs.

25
Nahimana et al. v. Prosecutor (ICTR-99-52-A), Appeals Chamber Judgement of 28 Nov. 2007, paras. 692, 693.
26Stakić, (Trial Chamber), 31 July2003, para. 554.
27
Nahimana, Barayagwiza and Ngeze , (Appeals Chamber), 28 Nov. 28, 2007, para 567; Gacumbitsi, (Appeals
Chamber), 7 July 2006, para. 43 and 259; Niyitegeka, (Trial Chamber), 16 May 2003, paras. 427, 436-437; Kamuhanda,
(Trial Chamber), 22 Jan. 2004, paras. 643-45.
28
Brioni Minutes, p. 2; CMS, Ann. 52. - 19 -

54. Intellectually, if that is the right word, President Tuđman regarded genocide  including

the Jewish holocaust and that visited upon the Serbs during World War II  as a pragmatic

solution to inter -ethnic conflict or political disputes . In his own words as expressed in his

1990 book, the Wastelands of Historical Reality , he noted the benefits of what he quaintly termed

“genocidal changes”, namely,

“more harmony in the national composition of the population and state borders of
individual countries, thus also having possible positive impact on de velopments in the

future, in the sense of fewer reasons for fresh violence and pretexts for the outbreak of
new conflicts and international friction” . 29

55. This literary gem followed hot on the heels of President Tuđman’s 1990 election

campaign, wherein he announced on national television that the fascist Independent State of

Croatia was an expression of the historical aspiration of the Croatian people and that he was happy

because his wife was neither a Jew nor a Serb . 30

56. In October 1993, at the Second Congress of the Croatian Democratic Party, one month

after the persecutory crimes by Croatian troops at Medak Pocket, which I will come to in a

moment, President Tuđman publically proposed that the remains of the Ustasha killed by the
31
Yugoslav Partisans in 1945 be reburied together with the victims of the Ustasha at Jasenovac .

Can we reflect on that terrible suggestion for a moment lest its import be watered down by the

passage of time? It is akin to a German l eader proposing burying the victims of Auschw itz in the

same place as a member of German Nazi régime. It does not take much imagination to work out

how safe the Jews in Germany would subsequently feel . It also does not take much to see where

Tuđman’s sympathies were in 1993. The problem was, as noted by Peter Galbraith, the U nited

States Ambassador to Croatia, in his testimony in Gotovina at the ICTY, Tuđman “considered both

32
Muslims and Serbs as part of a different civilization than Croats” . This explains how he could

harbour and disseminate such hate and how destroying Serbs amounted to little more than cleaning

a cupboard of common household pests.

29
CMS, Ann . 51, citing to Dr. Franjo Tuđman, Wastelands of Historical Reality , Nakladn i zavod Matice
Hrvatske, Zagreb, p. 163.
30CMS, para. 431 and Ann. 51; Rejoinder of Serbia (RS), para. 431.

31CMS, para. 417.
32
Gotovina et al., Trial Chamber Judgement of 15 Apr. 2011; RS, para. 780. - 20 -

57. Tuđman’s Minister for Foreign Affairs, Šarinić, considered the Serbs “a cancer on the

stomach of Croatia” . Marjan Jurić, a Deputy in the Croatian Parliament, at a session held on

1 to 3 August 1991, wondered whether the Serbs would come to their senses if “ten civilians were

executed for one killed policemen or if a hundred civilians were killed for one solider” 34. And so it

goes on. A further selection has been outlined in our pleadings and I will not burden the Court with

more of the same.

58. Of course these views impacted policies; of course they were sharpened by five years of

ethnically-based war; of course the belief that genocide could be a solution to a long-standing

political problem slowly became evidenced by practice. How, in the circumstances, could they

not?

59. From 1990, the Serbs in Croatia were exposed to an atmosphe re in which the

Independent State of Croatia and the Ustasha Movement was constantly evoked. Changes in the

constitution, the adoption of a flag and coat of arms eeri ly reminiscent of the Ustasha régime,

tangible discrimination, dismissal from employment, an unseemly rush to war, an adoption of

persecutory tactics during combat and finally, an operation designed to achieve the “genocidal

changes” that Tuđman believed would bring “harmony in the national composition”.

60. As the Brioni transcript shows, President Tuđman was no armchair commander in chief.

He was well versed in military tactics and every aspect of the recent Croatian military campaign, as

well as having the most decisive say concerning Operation Storm . As he announced at the very

beginning of the meeting, “[g]entlemen, I have called this meeting to assess the current situation and to

35
hear your views beforeI decide on what our next steps should be in the forthcoming days” .

61. As the Gotovina Trial Chamber found, when discussing the joint criminal enterprise,

Tuđman “ensured that his ideas were transformed into policy and action, through his powerful

position as President and Supreme Commander of the armed forces” 3.

33
Gotovina et al., Trial Chamber Judgement of 15 Apr. 2011; RS, paras. 1999-2001; footnotes omitted.
34CMS, Ann. 51.

35Brioni Minutes, p. 1; CMS, Ann. 52.
36
Gotovina et al., Trial Chamber Judgement, para. 2316. - 21 -

62. As for the final steps in this transformation of theory into practice, the Croatian

leadership’s escalating criminal intent is most clearly visible through the operations that preceded

Operation Storm, in particular, the Maslenica attack on 22 January 1993; the Medak Pocket

operation on 9 September 1993 and Operation Flash on 1 May 1995.

63. Operation Flash was the final turning point from operations designed to persecute and

punish to an operation premised on the extreme form of wilful and deliberate acts designed to

destroy a group. Genocide became the logical step on a road increasingly littered with Serb victims

of persecutory acts and other crimes against humanity, increasingly justified and excused as natural

outcomes of a righteous struggle for territorial integrity and self-determination.

The Maslenica Attack: 22 January 1993

64. As the evidence shows, from November 1992 onwards, the U nited Nations

Secretary-General had observed an improvement of law and order in the United Nations Protected

Areas 3. On 22 January 1993, this progress was undermined when the Croatian forces attacked

Maslenica and other locations in the southern part of Sector South and the adjacent “pink zones”.

As confirmed by the Special Rapporteur of the Commission on Human Rights, the Croatian f orces

committed a range of criminal acts including the destruction of villages and the forced

displacement of 11,000 Serbs 38.

65. Even now, the Applicant is unable to accept the illegitimacy of this operation. The

Applicant claims that the operation achi eved a legitimate humanitarian and military objective by

opening up a transport route to Bosnia, and in any event “the UN found that the Serbs were

39
primarily responsible for the difficulties faced by UNPROFOR in fulfilling its mandate” .

66. However, as a close examination of the Applicant’s evidence shows, the transport route

was necessary, not then, not immediately, but in “the long run” as there were other routes (that is,

through ferry services and over other bridges) 40.

37
CMS, paras. 1123-1129.
38CMS, para. 1125, citing to Fifth periodic report on the situation of hights in the territory of the former
Yugoslaviasubmitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to
para. 32 of Commission resolution 1993/7 of 23Feb. 1993, 17Nov. 1993, UN doc.E/CN.4/1994/47 (199ra. 149.

39RC, para. 10.48.
40
Additional Pleading of Croatia (APC), para. 2.24. - 22 -

67. In other words, this was nothing more and nothing less than a persecutory campaign

designed to force the RSK leadership to agree to political demands.

The Medak Pocket: 9 September 1993

68. The Medak Pocket, 9 September 1993, illuminates a similar intent with the same

justification.

41
69. As discussed by the Respondent in the pleadings , the Croatian forces committed a

myriad of persecutory acts, including murder, plunder and mass forcible transfer . As the ICTY

Prosecutor’s indictment stated, based no doubt on lengthy investig ations, “as a result of these

widespread and systematic unlawful acts” the “villages of Pocket [approximately 164 homes and

42
148 barns], were completely destroyed” . This cannot seriously be denied.

70. The Applicant carefully avoids addressing the issue. A variety of excuses are employed,

designed to avoid addressing the point . We are told that there was no evidence of ethnic

43 44
cleansing ; or it was only a matter of command responsibility ; or the o peration was justified

that because the RSK’s artillery fire made normal life in that region impossible.

71. This is a sidestepping of the issue. The claim that the operation was designed to remove

the threat of RSK artillery fire is demonstrably false . As we argued in the Respondent’s pleadings,

45
despite the devastation wrought, the area still remained within the range of heavy artillery fire .

As noted in the f inal report of the Commission of Experts, “[v ]arious contradictory excuses given

by the Croats for the destruction suggest the lack of any legitim ate excuse for such widespread

destruction” 46.

72. Of course, the symbolic c onviction of one man, Commander Norac, in 2008 in Croatia

(following transfer from the ICTY), for a small proportion of the crimes cannot constitute a

genuine expression of regret, let alone a contemporary repudiation of the criminal intent.

41CMS, paras. 1130-1134; RS, paras. 644-650.
42
CMS, para. 1133.
43
APC, para. 2.30.
44RC, 10.59.
45
RS, para. 644.
46
UN doc. S/1994/674. - 23 -

73. Even less is it evidence that is capable of undermining the conclusion that the Croatian

leadership had, by the fall of 1993, adopted a policy of collectively punishing Serbian civilians

through the commission of crimes against humanity.

74. However, the subsequent promotion of Norac to Staff Brigadier, and his place at the

Brioni planning meeting perhaps does tell us something about the nature of the shared criminal

47
intent .

Operation Flash: 1 May 1995

75. The Respondent has outlined the gravity of the crimes committed by the Croatian troops

during this operation 48.

76. Even though the Applicant inadvertently acknowledges the nature of the displacement by

referring to it as “ethnic cl eansing” 49, and despite the demonstrable mass displacement and related

50
crimes against humanity, the Applicant claims that the operation was conducted lawfully .

77. The reality is, that while there may be some room for debate about the precise scale of

the crimes, there is no room to doubt that persecution and other crimes against humanity were

committed on a massive scale and the Serb population was viciously chased out of Western

Slavonia.

78. As noted on 14 July 1995 in the periodic report submitted by the United Nations Special

51
Rapporteur of the Commission on Human Rights, a total of 12,000 Serbs were displaced .

79. We ask the Court to note certain features of this attack . It was nothing less than a

practice run for Storm. Its success an inspiration for bigger and better things.

47
RS, para. 631.
4CMS, paras. 1142 – 1159.

4RS, para. 10.98.
50
Example, RS, para. 10.91.
5Drafted pursuant to para. 42 of Commission resolution 1995/89, 14 July 1995, UN doc. A/50/287 -S/1995/575,
paras.28–29. - 24 -

80. The column of refugees was subject to a massive attack near the bridge on the Sava

52 53
River and there were executions in the villages of those Serbs who remained .

81. In terms reminiscent of the ill -advised explanation for the mass displacement that took

place during Operation Storm , the Applicant accepts that the region was emptied of its Serbian

54
population but claims that the rebel Serb leadership planned this exodus .

82. Notwithstanding this curious claim, the then Croatian Prime Minister, Mr. Valentić,

publically stated after the operation: “[t]he Serb problem in Western Slavonia has been solved” 55.

Echoing this view, Tuđman’s chief adviser at the time, Mr. Šarinić, laconically claimed: “we

should be inspired by the way it is in Western Slavonia. It was very positive for us, because no one

came back” 56.

83. The Applicant justifies the operation because the “existence of the ‘RSK’ in the heart of

the sovereign Republic of Croatia was a critical obstacle to the political and economic development

of the country” 5; because the RSK had adopted a policy “to negotiate with Croatia as

58
representatives of a sovereign state” , rather than as citizens of Croatia; they had rejected the

operative provisions of Security Council resolution 981 (1995), which treated the rebel Serb -held

territories as part of Croatia and established UNCRO’s mandate 59; they had refused to sign the

60 61
economic agreement ; they had closed a motorway through Sector West ; they had committed

62
“several criminal acts in the criminal proceedings” . And so, the political justifications go on.

5Periodic Report by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rig hts,
14 July1995, UN doc. A/50/287-S/1995/575, paras. 7, 8, 28 & 29; affidavits of Petar Božić, CMS, Ann. 48;
Savo Počuča, CMS, Ann. 49; Anđelko Đurić, RS, Ann. 37; Milena Milivojević, RS, Ann. 38; Dušan Bošnjak, RS,
Ann. 29; and Dušan Kovač, RS, Ann. 40.

5Affidavit of Radojica Vuković, RS, Ann. 41.

5RS, para. 10.97.
55
CMS, para. 1153, citing Prosecutor’s pre -trial brief in Gotovina et al. , IT-06-90-PT, Submission of Public
Version of Prosecution Pre-Trial Brief, 23 Mar. 2007, para. 20.
56
Ibid., para. 26.
57
RC, para. 3.132.
58
Ibid., paras. 10.71, 10.79.
5Ibid., para. 10.84.

6Ibid., para. 10.82

6Ibid., paras. 10.86-10.88.
62
Ibid., para. 10.89. - 25 -

84. This is where the Croatian leadership was at the time of Brioni . Infused with ethnic

hatred and a growing belief in the correctness or utility of devastating and destruct ive crimes, to

achieve the political goals that would bring harmony to the national composition.

The i nextricable link between the displacement planned and d estruction: the automatic
consequence

85. Let us now turn to the plan itself and the inextricable link between the displacement

planned and destruction: “the automatic consequence”.

86. A careful examination of the plan shows that the plotters intended that Operation Storm

would consist of a destructive attack on the Serbian Krajina civilians.

87. The three main elements of the plan involved the following:

(i) attacks on the towns and villages sufficient to defeat the already demoralized military and

force the civilians to leave through preordained routes;

(ii) allowing the military to leave by ensuring they were forced down the same escape route as

the civilians; and

(iii) effecting the ethnic cleansing through ensuring devastating criminal attacks on the fleeing

mixed civilian and military columns by removing any remaining distinction betwee n the

civilians and the military.

88. The Brioni leaders targeted the Krajina Serbs for extinction. They removed them from

their homes, stripped them of their personal belongings, and deliberately and methodically drove

them into columns with the milita ry to optimize the destruction. It was a plan  that if

successful  would destroy the group or a substantial part of it.

89. Let me now turn briefly to the transcript of the Brioni meeting to examine its precise

terms. Although President Tuđman wanted the civilians to “disappear”, he was willing to consider

“on a military level, the possibility of leaving” the military a way out, “so they pull out part of their

forces” 63. As Zagorec stated, with clear reference to the forces, “[w]hen they start to flee, they will

64
have to flee somewhere . . . we must open a pocket where they will flee” .

6Brioni Minutes, p. 7.

6Ibid., p. 20. - 26 -

90. President Tuđman’s son, Miroslav, queried whether the routes would be open for the

forces to pull out . President Tuđman proposed that they use the civilians as a means of pointing

out the escape routes for the forces by announcing over the radio, that “it has been noticed that

civilians are getting out using such and such a route” 66.

91. President Tuđman stated that once the civilians and military are in the same columns

fleeing for their lives, the Croatian forces and leadership should,

“make that information public  tanks, artillery batteries, losses, that means, from

today, tomorrow, the day after tomorrow, have this constantly r epeated on TV and on
the radio that they are attacking, that they are attempting to/by attacking, that their pull
out is just a manoeuvre” . 67

92. Finally, President Tuđman then recommended, that the civilians should be misled. As he

noted at the close of the meeting, the civilians should be duped to cause “general chaos”:

“[announce] we are appealing to you [the civilians] not to withdraw . . . giving them a way out,

while pretending to guarantee civil rights” 6. This was to involve, “point[ing] out the routes which

they could use to pull out, and formulate them in such a manner to double the confusion such as it

69
is” .

93. No doubt, as in the Ndindabahizi case at the ICTR, Tuđman “was well aware that his

remarks and actions were part of a wider context of ethnic violence, killing and massacres” and

“[h]is position as a Minister of Government lent his words considerable authority ”70. As in the

Nchamihigo case at the ICTR, the extermination plan included the idea of sparing some civilians so

as to mislead the international community 71. Finally, as in the Karera case at the ICTR where the

accused’s genocidal intent was considered “evident”, the plan, not only encouraged attacks on

civilians  guaranteed them  but also contained a false and misleading promis e to protect the

victims from attacks 72.

6Brioni Minutes, p. 20.

6Ibid.

6Ibid., p. 23; emphasis added.
68
Ibid., p. 29.
6Ibid.

7Ndindabahizi, Trial Chamber, 15 July 2004, paras. 462, 461, 463 -464; See also Ndindabahizi , Appeals
Chamber, 16 Jan. 2007, para. 52.
7Nchamihigo, Trial Chamber, 12 Nov. 2008, paras. 332-336.

7Karera, Trial Chamber, 7 Dec. 2007, paras.541-542; See ibid., paras. 543-544. - 27 -

94. I pause here to ask the question studiously avoided by the Applicant: what did the Brioni

planners think would be the result of forcing the civilians and military into the same columns and

then announcing that the military was only pretending to pull out and in fact was engaged in

ongoing attacks? What would be the result of that plan?

Conclusion: Phase One

95. To conclude Phase One, let me address two final issues. First, the reasons proffered by

the Applicant to justify the plan. And s econd, the Gotovina et al. Appeal Judg ement that

overturned Gotovina and Marcač’s JCE convictions.

Reasons: Motive and Intent

96. First, motive and intent, and the reasons proffered by the Applicant. T he Applicant

advances various claims to justify Operation Storm . The principle claim is that Operation St orm’s

goal was not the physical destruction of the Serb population of the Krajina, but intended “to
73
achieve the lawful restoration of control over its sovereign territory” , etc. The remaining

explanations can be found in their pleadings . They are identi cal to th e reasons proffered with

regard to the predecessor operations.

97. Apart from exposing the mindset that existed in 1995, that any crime  even

genocide  was justified to resolve political aims, of course, they are not relevant to the issues at

hand.

98. As determined by the Appeals Chamber at the ICTY in the case of Jelisić, the existence

of a personal motive of a perpetrator of the crime of genocide “such as to obtain personal economic

benefits, or political advantage or some form of power” does not preclude the perpetrator from also

74
having the specific intent to commit genocide .

99. As reiterated by the Appeals Chamber of the ICTR in Kayishema, “criminal intent (mens

rea) must not be confused with motive and that, in respect of genocide, pe rsonal motive does not

exclude criminal responsibility providing that the acts proscribed in Article 2 (2) (a) through to (e)

7RC, para. 12.3.

7Prosecutor v. Jelisić, Judgement, Appeals Chamber, IT-95-10-A, 5 July 2001, para. 49. - 28 -

were committed ‘with intent to destroy, in whole or in part a national, ethnical, racial or religious

75
group’” .

100. The Croatian leadership’s Brioni plan was still a genocidal plan.

Significance of the Gotovina et al. Appeal Judgment

101. Turning to the significance of the Gotovina Appeal judgement. In 2012, as we know,

the convictions of Gotovina and Marcač were controversially overturned. We urge the Court to

examine this j udgement with care. Of course, some judgements at the ICTY are more puzzling

than others. This Appeal judgement, along with aspects of the Martić judgement  which I will

address you upon in the second round  is one of those.

102. There is no surprise that it contains two of the most trenchant dissents in the history of

the ICTY from two of the most experienced judges, Judge Agius and Pocar. Judge Agius described

the majority’s approach, inter alia, as “artificial and defective” 76, observing that it “in no way

resembles an application of the proper standard of review applicable to errors of law  or indeed

any recognisable standard of review” 7.

103. Judge Pocar went even further chiding the majority for “the paucity of the legal

analysis” that “opens more questions than it provides legal answers 78”, noting that he did not

“believe that justice is done when findings of guilt not lightly entered by the Trial Chamber in more

than 1300 pages of analysis are sw eepingly reversed in just a few paragraphs, without careful

79
consideration of the trial record and a proper explanation” .

104. Let me for the moment compare the views expressed by the Trial Chamber and

thereafter by the majority at the Appeals Chamber with regard to the Brioni transcript. It gives you

an insight into the disquiet expressed in these minority views.

105. The Trial Chamber held, inter alia , that, President Tuđman’s comment that Croatia

must “inflict such blows that the Serbs will [for] all practical purposes disappear . . . focused

75
Prosecutor v. Kayishema and Ruzindana, Judgement, Appeals Chamber, para. 161.
76
Gotovina et. al., Appeals Chamber Judgement, dissenting opinion of Judge Carmel Agius, para. 4.
77Ibid., para. 7.
78
Gotovina et. al., Appeals Chamber Judgement, dissenting opinion of Judge Pocar, para. 14.
79
Ibid., para. 14. - 29 -

80
mainly on the Serb military forces, rather than the Serb civilian population” . According to the

ICTY Trial Chamber, President Tuđman’s comment did refer to civilians, even if this was not at

that time his main f ocus. The Trial Chamber would appear to agree with the submissions made

yesterday by Mr. Obradović.

106. The Trial Chamber went on to note, inter alia, that the minutes of the Brioni meeting

show that the participants were

“aware of the difficult situat ion for the Krajina Serbs, in particular in Knin, and they

knew that it would not require much effort to force them out . Under these
circumstances, members of the Croatian political and military leadership took the
decision to treat whole towns as target for the initial artillery attack.” 81

107. Summing up its repudiation of Gotovina’s case, and the Applicant’s defence in this

Court, the Trial Chamber held that in light of these remarks, and the fact that “ the participants

made no reference to how the mil itary operation should be conducted [so] as to avoid or minimize

the impact on the civilian population”, the creation of corridors and the references to “ civilians

being shown . . out was not about the protection of civilians but about civilians being for ced out”.

The comments did “not lend support to an interpretation that the discussions at the meeting were

about the protection of civilians” 82.

108. Compare this view with the majority view at the Appeals Chamber:

“it was not reasonable to find that th e only possible interpretation of the Brioni

Transcript involved a JCE to forcibly deport Serb civilians . Portions of the Brioni
Transcript deemed incriminating by the Trial Chamber can be interpreted, absent the
context of unlawful artillery attacks, as inconclusive with respect to the existence of a
JCE, reflecting, for example, a lawful consensus on helping civilians temporarily

depart from an area of conflict for reasons including legitimate military advantage and
casualty reduction . Thus discussion o f pretexts for artillery attacks, of potential
civilian departures, and of provision of exit corridors could be reasonably interpreted
as referring to lawful combat operations and public relations efforts.” 83

109. Given the plain words spoken, the Responde nt suggests that the minority ’s view is

plainly the correct one. The interpretation placed upon it by the Appeals Chamber is puzzling to

say the least.

80Gotovina et al., Trial Chamber Judgement, para. 1990.
81
Ibid., para. 2311.
82Ibid., paras. 1993, 1995.
83
Gotovina et. al., Appeals Chamber Judgement, para. 93. - 30 -

110. The Brioni plan is wholly inconsistent with any suggestion of legitimate armed conflict

or excesses in an otherwise legitimate operation . Whilst the Applicant will no doubt be able to

point to aspects of the execution of the plan  Phase Two  that shows that less destruction

occurred than might have been predicted, they will do so only by avoiding t he words on the page,

the plain terms of the plan. The Applicant will spend some time attempting to show how the

operation was conducted lawfully. That civilians left for reasons other than indiscriminate attacks,

or unlawful attacks. They missed the po int. The point is that the plan was premised on a

calculated strategy of ensuring by fair or foul play that civilians left, not down safe routes, not to

safety, but together with the military before then encouraging, ensuring, directing and planning

attacks to be rained down upon the mixed columns.

111. It is worth pausing again to pose the question as yet unanswered by the Applicant: can

anyone seriously accept that such a plan  corralling the civilians and the military into selected

routes and columns, encouraging military attacks upon them by disseminating misinformation that

the military were still attacking  whilst misleading the civilians into believing they were safe 

in the middle of a n ethnically driven war  would not automatically lead to death and destruction

on a massive scale? The Applicant ought to address this point.

Phase Two: The execution of the plan

112. As the Respondents have argued in their pleadings, the intent to destroy the group of

Krajina Serbs at the heart of the plan for Operation Storm is further confirmed and corroborated by

the subsequent execution of the plan and the massive, widespread and systematic crimes committed

therein.

113. It is remarkable how the plan became a reality and how the Brioni leadership so

efficiently transformed their ideas into action.

114. There is no dispute in this case, no real dispute, that the U nited Nations

Secretary-General’s conclusion is correct, and I quote: - 31 -

“The exodus of 200,000 Krajina Serbs fleeing the Croatian offensive in early
August created a humanitarian crisis of major proportions . It is now estimated that

only about 3,000 Krajina Serbs rema84 in the former Sector North and about 2,000 in
the former Sector South . . . ”

115. As Tuđman planned, so it was: “It is important that those civilians set out, and then the

army will follow them, and when the columns set out, they will have a psychological impact on

each other.” 85

116. On the Croatian side there were 150,000 soldiers while on the other there w as

86
30,000 RSK soldiers . As we know from the Brioni transcript, the Croatian leadership knew the

latter was a spent force that would flee without any meaningful fight.

117. Despite this, the cities of Knin, Benkovac, and Bosansko Grahovo were subjected to

severe shelling during Operation Storm 87. Other cities and towns were also heavily shelled despite

having no identifiable military targets ; Obrovac, Gra čac, Kistanje, Uzdolje, Kova čić, Plavno,

Polača and Buković 88, and it goes on.

118. The Counter-Memorial shows that t he killing of Serbs was widespread and systematic

during and after Operation Storm . Whether we rely upon the Croatian Helsinki Committee for

Human Rights, who calculated that during and in the 100 days after Operation Storm, 677 Serbs

89
civilians were murdered and went missing , or figures provided by Veritas, that 1,719 Krajina

Serbs were killed 90, either calculation amounts to mass killing, and this was the automatic

consequence of the military strategy adopted at Brioni.

119. As discussed in the Counter -Memorial, fleeing civilians were attacked and killed or

injured by artillery shelling, bombing from the air, infantry fire and attacks by Croatian forces.

84The situation in the occupied territories of Croatia: Report of the Secretary -General, 18 Oct . 1995,
UN doc. A/50/648, para. 27.

85Brioni Minutes, p. 15; CMS, Ann. 52.
86
CMS, para. 1213; O. Žunec, Naked Life (Goli život), Zagreb, 2007, p. 842.
87
CMS, para. 1215.
88CMS, para. 1216; Gotovina et al ., Prosecutor’s Pre -trial brief, Public Version of Pre -Trial Brief,
23 March 2007, para.31.

89CMS, para. 1239, citing Croatian Hel sinki Committee for Human Rights, Military Operation Storm and it’s
Aftermath, Zagreb, 2001, p. 210; see also Humanitarian Crisis Cell Sitrep, Compilation of Human Rights Reporting,
7 Aug.-11 Sept. 1995; CMS, Ann. 55.

90List of direct victims of Operatio n Storm available on http://www.veritas.org.rs/wp -
content/uploads/2013/02/Oluja-spisak-direktnih-zrtava2.pdf. - 32 -

120. As examples only . On 8 August, a refugee column was shelled between Glina and

91
Dvor, resulting in at least four dead and ten wounded .

121. An entry of the 4th Guards Brigade Operative Logbook for 7 August 1995 shows the

success of Phase One in removing the principle of distinction . The Logbook entry reads: “ our

artillery was hitting the column pulling from Petrovac to Grahovo, the score is excellent, the

92
Chetniks have many dead and wounded . . .”

122. M s Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights,

concluded that the killing of civilians was the number one human rights violation committed during

and after Operation Storm 93. She confirmed that fleeing civilians were subjected to various forms

94
of harassment, including military assaults and attacks .

123. As for the mental harm that the evidence shows inevitably arises fr om being driven

from your home like cattle to the slaughter house, the Respondent can do no better than rely upon

the powerful summation from the Trial Chamber in the Blagojević case, that noted,

“the trauma and wounds suffered by those individuals who managed to survive the

mass executions . . . The fear of being captured, and . . . the sense of utter
helplessness and extreme fear for their family and friends’ safety as well as for their
own safety, is a traumatic experience from which one will not quickl y  if ever 
95
recover.”

124. Whilst, of course, the exact number of dead and physically and mentally injured will

remain a point of contention and impossible to determine, in the circumstances, this does not

undermine the Respondent’s case. We urge the following approach.

125. First, as admitted by the Applicant, for some time after the killings that occurred on the

territory during Operation Storm , the terrain was sealed from the view of the international

91List of direct victims of Operation Storm available on http://www.veritas.org.rs/wp -
content/uploads/2013/02/Oluja-spisak-direktnih-zrtava2.pdf.
92
Gotovina et al ., Reynaud Theunens, Expert report:Croatian Armed Forces and Operation Storm , Part II, p.
189.
93
Report on the situation of human rights in the territory of the former Yugoslavia submitted by
Ms Elisabeth Rehn, Special Rapporteur of the Comm ission on Human Rights, pursuant to Commission
resolution 1995/89 and Economic and Social Council decision 1995/290, UN d oc. S/1995/933, 7 Nov. 1995, p. 8.
94CMS, para. 1242; Report on the situation of human rights in the territory of the former Yugoslasubmitted
by M s Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission

resolution 1995/89 and Economic and Social Council decision 1995/290, 7 Nov . 1995, UN d oc. S/1995/933, p. 7,
para. 18.
95Blagojević et al., IT-02-60-T, Trial Chamber Judgement, 17 Jan. 2005, para. 647. - 33 -

community (purportedly due to “ongoing combat and in order to prevent any UNCRO casualties

96
and later for mop up operations” ).

126. So even though the Respondent accepts in general that it must establish that crimes that

satisfy Article II of the Convention were committed with intent, the “determin ation of the burden of

proof is in reality dependent on the subject-matter and the nature of each dispute brought before the

97
Court” . This Court in the Guinea case decided that, as noted, the rule should be applied

“flexibly” when the opposing party is “in a better position to establish certain facts” 9.

127. Accordingly, the Applicant’s reliance on the fact that “no precise data on the numbers

of Serbs killed or missing during Storm has been established” 99 is entirely misplaced. It is, at the

very least, instructive, that the Applicant is well placed to assist the Court with an assessment, but

100
has declined to do so .

128. However, it should also be borne in mind, that whilst most of the 200,000 civilians

mercifully, if that is the right word, avoided deat h, this fact alone does not undermine the

Respondent’s case.

129. Although as argued earlier, the ICTR and ICTY indicators that allow inferences to be

drawn from the nature and scale of the attacks are all there and plentiful , during Phase Two; we

say plentiful and sufficient.

130. Given the express terms of the Brioni plan  Phase One  there is no need to discern

intent from only indirect or circumstantial evidence . The Court need not trouble itself with

resolving Professor Sands “hamlet” thesis, wherein he argued that intention might be discerned

from an attack on a “state, or a region, or a town, or a village, or a hamlet, or even something

smaller” 101 or the less expansive thesis advanced by Sir Keir Starmer, who acknowledged that

102
“numbers are not without some relevance” .

9RC, para. 11.107.
97
Ahmadou Sadio Diallo, ( Republic of Guinea v. Democratic Republic of Congo), Merits, Judgment, I.C.J.
Reports 2010 (II), pp. 660, para. 54.
9Ahmadou Sadio Diallo, ( Republic of Guinea v. Democratic Republic of Congo), Compensation, Judgment, ICJ

Reports 2012 (I), p. 332, para. 15.
9RC, para. 11.85.

10RC, paras. 11.87-11.93.
101
CR 2014/6, para. 31 (Sands).
10CR 2014/12, para. 3 (Starmer). - 34 -

131. In the counter -claim the Court is entitled to find intent when they are satisfied that

relatively few Article II attacks occurred, but that they were a virtual certainty (barring some

unforeseen circumstance or intervention) as a result of the Applicant’s plan and the actions and that
103
the Applicant appreciated that such was the case .

132. Moreover, as this Court has found, “it is widely accepted that genocide may be found to

have been committed where the intent is to destroy the group within a geographically limited

area . . . As the ICTY Appeals Chamber has said, and . . . the Respondent accepts, the opportunity

available to the perpetrators is significant.” 104

133. That the Croatian planners were thwarted in their plans, by a number of factors, not

least of which was the speed in which they emptied the towns, the configuration of the terrain, the

resourcefulness of those fleeing, the watchful eye of the international community, or even the

unwillingness of the ground commanders to follow through the logic of this plan, is little more than

a twist of fortune that does not cast a more favourable light on the prevailing criminal intent.

134. There is no question that the Article II acts were random acts of violence, acciden tal

consequences of lawful military action or excesses of war . We know that the plan was directed at

the 200,000 individuals or at least a substantial part of them, whatever the final success of th e plan.

We know that the plan was an escalation, and the violence was an automatic consequence of its

terms.

Phase Three: the attacks on those that remained

135. Phase Three, the attacks on those that remained. Phase Three, the deadly aftermath,

took place in the Krajina for several months after the initial o perations were completed.

136. Let me borrow , if I may, a perspective employed by Sir Keir Starmer when analysing

the Vukovar operation: “[l]et us look backwards as to what had happened and then look forward to

105
see what happened next” . So far as the l ook backwards is concerned, our submission is that it

exposes the Applicant’s case for what it is  very far removed from reality.

103
See R v. Woollin [1999] 1 Cr App. R 8, HL for an e nunciation of the test for ascertaining intention in the
UK jurisdiction.
10Bosnia Judgment,pp. 126-127, para. 199.
105
CR 2014/8, para. 33 (Starmer). - 35 -

137. The Applicant’s principle claim is that Operation Storm was not the physical

destruction of the Serb population of the Krajina, but a lawful operation designed to “to achieve the

lawful restoration of contr ol over its sovereign territory ” . Failing this explanation, they might

settle with it being an ethnic cleansing campaign, rather than a genocidal one, since it avoid s the

Court’s jurisdiction.

138. I am inviting the Court to examine both propositions. Looking back, by 8 August 1995,

Operation Storm with regard to either objective was an unmitigated success. In the words of

General Leslie, it was “conducted with a high degree of expertise. If the aim was to ensure that the

local population was cleansed from the region.” 107

139. I now want to look forward, because, on any view, whether my analysis of Phase One

or Two is right or wrong, on 8 August, nobody could argue with the proposition that the Krajina

Serbs were on their knees. Nearly 200,000 civilians had been humiliated, tortured, killed, or

removed in three or four devastating days. Cold-hearted efficiency does not begin to describe the

look backwards. A five-year struggle brutally ended. Demoralized and running for their lives with

the few belongings and shreds of dignity that could be carried along.

140. Mr. President, Members of the Court, if there was ever an opportunity to test the real

intent of the C roatian forces, this was it. They had recovered their territory; they had cleansed

their territory. This ought to have been the end of the violence.

141. What happened next is undoubtedly the most shocking aspect of this whole operation

and will assist this Court in deciding the real intent.

142. Those that remained were those who could not leave; the most vulnerable, the elderly,

the disabled and the infirm . Unlike the unfortunate victims in Phase Four of the Vukovar

operations, these were not sele cted because they were known or suspected to have involvement in

108
military activities .

143. There can be no pretence that the Croatian leadership had not planned it this way . As

noted by General Janko Bobetko, Chief of the Croatian Main Staff at that tim e, in his book All My

106
RC, para. 12.3.
10See ICTY, Gotovina et al., testimony of witness Andrew Leslie, 22 Apr. 2008, Transcript , p. 2015.
108
ICTY, Mrkšić, Trial Chamber Judgement, para 476. - 36 -

Battles, the operations from 1994 through to Operation Storm were part of a concerted plan that

had “worked out all the assignments to the minutest detail” . 109

144. As noted by Gotovina during the Brioni planning Phase One, if they “co ntinued the

pressure, there won’t be so many civilians just those who have to stay, who have no possibility of

110
leaving” .

145. No doubt those, like Mile Sovilj and Bož o Šuša, whose evidence was summarized to

you on Wednesday, had been persuaded to stay be cause as Tuđman had claimed, those who “had

not bloodied their hands” were permitted to remain. As the Gotovina Trial Chamber found 

paragraph 2373  Gotovina was aware of the likelihood of attacks; of course, we do not need a

finding in a judgment to know that.

146. The moment in history we heard from Sir Keir Starmer prior to the Applicant’s

Phase Four, was but one moment in this horrible civil war . This was the moment, more chilling

than any in the Croatian war.

147. As President Tuđman noted, during the Brioni meeting, with regard to the Croatian

111
forces prior to the Operation, “it was difficult to keep them on a leash” . This was the moment

when the Croatian forces were well and truly off that leash.

148. The abled bodied driven out. Five thousand (5,000) trapped. No threat to any territorial

integrity, no threat to independence, no threat to man or beast. Surrounded, defenceless, waiting.

149. Independent evidence from Croatian organi zations and United Nations personnel

demonstrate that th e abandoned population that remained in Sector South and North were

systematically targeted by Croatian forces, which worked hard to prevent the United Nations from

entering the towns and villages, to conceal this genocidal conduct . At least 120 were found with

shots in the back of the head. Hundreds were killed in Sector South and Sector North. The true

number will probably never be known 112.

109
CMS, fn. 1040.
11Brioni Minutes, p. 15.

11Brioni Minutes, p. 10.
112
Example, CMS, paras. 1258-1312. - 37 -

150. As reported by the European Community Monitoring Mission (ECMM), by the end of

September 1995, 73 per cent o f Serb houses were burned and looted in the 243 villages

113
investigated . This means thousands of homes . As reported by the United Nations on the

4 November 1995, in Sector South alone , 17,270 houses were destroyed or damaged after the

114
commencement of Operation Storm .

151. Although denying responsibility, the Applicant admits that there was “continued

115
burning and looting” as late as 9 September 1995 . Over a month after this alleged cleansing

operation was supposed to be completed, when the area was under the control of the Applicant, the

Krajina, the Serbs and their property continued to burn.

152. And it did not end there; Croatian forces killed livestock, polluted wells and

116
waterways, stole and removed property, including firewood stored for the upc oming winter .

Symbols of the Serbian community in the area were also destroyed during and in the aftermath of

the operation  houses, churches, monasteries and cultural monuments were devastated and

117
burnt .

153. The United Nations report noted that virt ually every abandoned Serb property was

118
looted . The looting of Serb property decreased only in October, but according to the report only

because “there was nothing left to loot” 11.

154. This evidence is corroborated by the Gotovina Trial Chamber judgement, which found

that Croatian military forces and Special Police continued to target the Krajina Serb civilian

population. They committed a large number of murders, inhumane acts, cruel treatment, acts of

113
CMS, para. 1325; RS, para. 773.
114CMS, Ann. 58.

115RC, paras. 11.103-11.108.
116
CMS, fn. 1271.
117
CMS, fn. 1272.
118Report on the situation of human rights in Croatia pursuant to Security Council resolution 1019 (1995),
25 Dec. 1995, UN doc. S/1995/1051, p. 5.

119UNMO HQ Sector South & Human Rights Activities Team (HRAT), Survey Report on the Humanitarian
Rights Situation in Sector South, 4 Oct. -4 Nov. 1995 (drafted by Major Peter Marti and Captain Kari Anttila) (CMS,
Ann. 58). - 38 -

120
destruction and plunder throughout August and Septe mber 1995 . Nothing in the Gotovina

Appeal judgement touches this finding.

155. These findings and the totality of evidence shows the horrendous destruction and, inter

alia, the systematic expulsion from homes, the denial of basic services, the deprivat ion of proper

121
housing, clothing and hygiene , and otherwise the creation of circumstances that would have led

to a slow death for this already ailing population.

156. As the Krajina and its people burnt, what did Tuđman do? Did he take steps to calm the

situation or did he fan the flames of these genocidal acts?

157. As found by the Gotovina Trial Chamber, and not disputed by the Applicant, a few

weeks after Operation Storm, Tuđman spoke at a public gathering in Knin. With regard to the

town he stated:

“But today it is Croatian Knin and never again it will go back to what was
before, when they spread cancer which has been destroying Croatian national being in
the middle of Croatia and didn’t allow Croatian people to be truly alone on it’s [sic]
own, that Croatia becomes capable of being independent and sovereign state . . . .

They were gone in a few days as if they had never been here, as I said 122. . . They did
not even have time to collect their rotten money and dirty underwear.”

158. And so ends my look forward. As Croatian Defence Minister, Špegelj stated in 1991:

“Listen to me Commander . F irst, your entire Command will be defeated, no one will

123
survive, we will spare no one. Give up all illusion on raising alarm.”

159. And so what had been promised had finally been accomplished. If any doubt could

remain that the intent underpinning Operation Storm was not limited to only the expulsion or mere

dissolution of the Krajina Serbs but their physical destruction, this final phase  Phase Three 

ought to well and truly dispel it.

Concluding Remarks

160. So, to conclude: most of the 200,000 men, women, and children, who were living in the

area, were uprooted and, in an atmosphere of terror, forced out of their homes to be killed,

120
ICTY, Gotovina et al., Trial Chamber Judgement, para. 2307.
12Akayesu, Trial Judgement, 2 Sept . 1998, para. 506see also Kayishema and Ruzindana, Trial Judgement,
21 May 1999, para. 116; and Brđanin, Trial Chamber Judgement, 1 Sept. 2004, para. 619.

12Gotovina et al., Trial Chamber Judgement, para. 2306.
123
MC, Ann. 148. - 39 -

physically and mentally harmed or forced to leave Croatia . The elderly, the sick and the disabled,

however, were consigned to a separate fate, subjected to pitiless and chilling att acks that made

continued existence impossible. The Respondent submits there can be no doubt that all these acts

constituted a single operation, planned at Brioni, executed with the intent to destroy the Krajina

Serbs. The Croatian leadership knew that the combination of the crimes would inevitably result in

the physical disappearance of the Serbians from Croatia and clearly intended through these acts to

physically destroy this group.

Article III of the Genocide Convention

161. The Respondent also submit s that if the Court is not satisfied on the primary case,

Croatia is responsible under Article III (b) to (e) of the Convention for conspiring, incitement,

attempting or complicity in genocide. All the arguments I have made apply to these forms of

responsibility.

Article IV: failure to punish Genocide

162. Finally, I turn to the Applicant’s failure to punish. As noted by the Applicant,

“[T]he importance of the obligation in Article I to punish acts of genocide is
reflected throughout the Convention’s provisions. Article IV expressly requires that
persons committing acts of genocide or any of the other acts enumerated under
Article III shall be punished, ‘ whether they are constitutionally responsible rulers,
public officials or private citizens’.”24

163. As was shown in the Respondent’s Counter-Memorial, the Croatian judiciary has never

initiated proper criminal proceedings against the perpetrators of crimes committed during and after

the operation Storm, even for war crimes or crimes against humanity.

164. The evidence relied upon by the Applicant to suggest that it has fulfilled its obligation

to prosecute should be approached with healthy scepticism.

165. The Applicant relies upon the “OSCE Report on war crimes proceedings in Croatia,

dated 27 October 2009”. However, this report advances an unresolved contradiction. On the one

hand, it suggests that Croatia is “working towards judicial addressing of war incidents as

comprehensively as possible”; on the other, the report suggests that “serious un prosecuted war

12RC, para. 9.82. - 40 -

crimes” remain as a “main issue ” . None of the Applicant’s evidence appears to deal with this

126
issue or provide evidence that shows that this has been resolved .

166. There is no evidence that Croatia has prosecuted perpetrators of crimes committed

during Operation Storm. Confirming that it accepts something of the scale of the destruction in

Phase Three, the Applicant claims in the Reply that, “the Croatian police and judiciary instituted

several hundred proceedings concerning the destruct ion of Serb property” 127. However, the

Applicant tiptoes around the subject and fails to provideany corroborative detail.

167. The Applicant avoids quantifying any evidence in support of the claim. Despite being

singularly in control of the whole region from 5 August 1995 onwards, the Applicant does not

assist the C ourt with any details of these “several hundred cases”, the precise destruction that

occurred, or otherwise explaining how , despite 150,000 military forces in the region, this

destruction was allowed to occur.

168. The Applicant claims that its obligation, if it exists, has “been discharged by the

128
Applicant’s co-operation with the ICTY in its prosecution of Gotovina, Markać and Čermak” . In

light of the undoubted hundreds of perpetrators, this could not stand as adequate discharge of its

international obligation.

169. There is not a single admission in hundred s of pages of pleadings that might suggest

that the Applicant for one moment accepts that the Republic of Croatia , Tuđman’s leadership, did

anything wrong during Operation Storm.

170. Of course, the Applicant has not fulfilled this obligation : 5 August is a day of public

celebration. The participants in Operation Storm are heroes, not suspects or criminals. Plainly the

Applicant has breached its obligation to punish, as provided by Articles I and IV of the Convention.

171. Thank you for the time , Mr. President, honourable Judges, Perhaps it is time for a

break.

125
RC, para. 2.69(2), citing OSCE Status Report on Mandate-related Developments and Activities, 27 Oct. 2009,
p. 2.
12Ibid., paras. 2.70 – 2.80.

12RC, paras. 11.106, 11.108.
128
APC, para. 4.42. - 41 -

The PRESIDENT: Thank you, Mr. Jordash. The sitting is suspended for 15 minutes.

The Court adjourned from 11.20 a.m. to 11.35 a.m.

The PRESIDENT: Please be seated. The hearing is resumed and Professor Schabas, I give

you the floor. Please, proceed.

Mr. SCHABAS: Thank you very much, Mr. President, Your Excellencies, may it please the

Court. This is Serbia’s final presentation in this first round of pleadings, with the exception of a

few brief comments by the Agent that will follow my remarks this morning.

R EBUTTAL TO C ROATIA ’S ARGUMENTS C ONCERNING SERBIA ’S COUNTER CLAIM

1. I will focus on the Additional Pleading filed in August 2012 by Croatia, as well as on an

even more recent develop ment that is not addressed in any of the written submissions. I am

referring, of course, to the judgement of the Appeals Chamber of the International Criminal

Tribunal for the former Yugoslavia (ICTY) in the case of Gotovina and Markač issued in

November 2012.

2. Members of the Court, Serbia did not choose to institute proceedings before the

International Court of Justice (ICJ). It would have been Serbia’s hope that after the decision of this

Court in the Bosnia case, Croatia would have understood the fragility of its reliance upon the terms

of the 1948 Genocide Convention and discontinued these proceedings. That did not prove to be the

case. Serbia has therefore set out its own counter-claim. It is of course distinct from a defence on

the merits, but the counter-claim is also related to it in the sense that, to use the wo rds employed by
129
the Court, the c ounter-claim “reacts” to the c laim The Court has noted the dual functions of a

counter-claim. It attempts to obtain the dismissal of the Ap plication on the merits, thereby

resembling a defence, but it also goes further by widening the original subject -matter of the
130
dispute , as is the case in these proceedings.Of course, a counter -claim alleging genocide can

never provide a full defence to a charge o f genocide, the prohibition of which is an erga omnes

12Application of the Convention on the Prevention and Punishment of the Crime of(Bosnia and
Herzegovina v. Yugoslavia), Counter-Claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 256, para. 27.
130
Ibid. - 42 -

131
obligation . But it is an entirely legitimate and proper as a response by a Respondent who has

been compelled to appear before the Court by an unfounded and legally unsound application.

3. The narrati ve that emerges from vario us sources, including the 2007 J udgment of this

Court and the case law of the ICTY, presents the Court with a complex conflict beginning in 1991

and concluding with the Dayton Agreement in late 1995, and one that has often been characterized

by the label “ethnic cleansing ”. As the former Yugoslavia broke apart and new States were

created, various actors resorted to the use of force, including serious violations of international

humanitarian law and international human rights law, in order to promote new State formations that

were more homogeneous in an ethnic sense than had previously been the case in the multi -national

State created in 1919 upon the ruins of the old empires in Eastern and Central Europe. One of the

largest single episodes of ethnic cleansing in the conflict took place in August 1995 when

200,000 residents of the Krajina were, in the space of a few days, driven from their ancestral

homes, most of them never to return. The 2011 census of Croatia presents us with th e scale of the

transformation that has taken place within that country’s borders: there were 186,633 ethnic Serbs

living in Croatia in 2011, about 32 per cent of the total of ethnic Serbs who were living in the

country twenty years earlier. A large proportion of this is a consequence of Operation Storm.

4. In the 2007 J udgment, the Court discussed the concept of “ ethnic cleansing”, noting that

in practice it meant “rendering an area ethnically homogeneous by using force or intimidation to

remove persons of given groups from the area ”. I will not refer in detail to paragraph 190 of the

2007 Judgment; it has already been cited abundantly in these proceedings. There is no

disagreement among the P arties that although genocide and ethnic cleansing are not

synonymous  to use the words of the Court in the Bosnia Judgment  “acts of ‘ethnic cleansing’

may occur in parallel to acts prohibited by Article II of the Convention, and may be significant as

132
indicative of the presence of a specific intent . . . inspiring those acts” . In other words, a cts of

ethnic cleansing may provide evidence of an attempt to destroy the group. This is what the Court

13Application of the Convention on the Prevention and Punishment of the Crime of Genocide(Bosnia and
Herzegovina v. Yugoslavia), Counter-Claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 258, para. 35.

13Application of the Convention on the Prevention and Punishmentof the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I) (hereafter Bosnia), p. 122, para. 190. - 43 -

said in 2007. And it is especially relevant, I would submit, Mr. President, Members of the Court,

when the group is in fact destroyed, as is with the case of the Krajina Serbs.

The Gotovina Judgements

5. Let me turn to the problems posed by the Gotovina judgements. Since the last written

submissions were filed in this case, there have been important developments in t he case law of the

ICTY. The Gotovina case was a proceeding involving three defendants in the Croatian military

and civilian hierarchy that was concerned essentially with conduct during Operation Storm. When

the Applicant made its final written submissio ns in the Additional Pleading of the Republic of

Croatia, dated 30 August 2012, the Trial Chamber judgement in Gotovina had already been issued.

The Applicant claimed to find determinations and assessments of the unanimous Trial Chamber

that it said were helpful to its case and damaging to the counter-claim, but this was putting a brave

face on what was a very inconvenient decision for Croatia.

6. Because of this, in Applicant’s final submission, the Court was continually reminded of

the fact that the Gotovina Trial Chamber decision was under appeal. Rather detailed attention was

given to some of the materials submitted by the appellant in that case, by the Prosecutor , especially
133
the reports generated from military experts in the United States . Obviously, Serbia would have

preferred that the Gotovina Trial Chamber judgement be confirmed by the Appeals Chamber, and it

would have if one judge had gone in the other direction. Perhaps if it had, it would have been

easier to convince the Applicant of the futility of its claim. Applicant was itself actually quite

nervous about the Appeals Chamber proceedings. And i n words that it probably now regrets

having included in its written pleadings, the Applicant warned this Court about attaching too much

134
authority to the Appeals Chamber decision yet to be issued .

7. Things did change dramatically with the Appeals Chamber judgement in Gotovina. There

were only two defendants by this point, because one of the three accused had been acquitted by the

Trial Chamber, a nd that part of the decision was not appealed by the Prosecutor . The two

remaining defendants were both acquitted by the Appeals Chamber. And i t is an understatement to

13Additional Pleading of the Republic of Croatia (APC), paras. 3.38-3.39.

13APC, para. 4.12 (b). - 44 -

say that the Appeals Chamber j udgement was controversial. Two dissenting judges used

exceedingly strong language in their opinions, harsh language that is very uncharacteristic of the

separate and dissenting opinions of the Chamber when we look at the ensemble of the

jurisprudence of the Appeals Chamber . Judge Pocar, a former president o f the ICTY, wrote: “I
135
fundamentally dissent from the entire Appeal Judgement,which contradicts any sense of justice.’

Judge Agius, currently the V ice-President of the Tribunal, wrote : “ I respectfully but strongly

136
disagree with almost all of the conclusions reached by the Majority in this Appeal Judgement.”

8. Mr. President, Your Excellencies, much has been said in these proceedings about the

significance of the ICTY materials, and I will not repeat my remarks of earlier in the week. In the

Bosnia case, the Court said that it attached “the utmost importance to the factual and legal findings

made by the ICTY in ruling on the criminal liability of the accused before it ”, adding that “in the

present case, the Court takes fullest account of the ICTY’s tri al and appellate judgments dealing

with the events underlying the dispute”. And therein lies the rub. In the Bosnia case, the trial and

appellate judgments were relatively consistent with respect to determining the scope of the crime of

genocide. The Court was not dealing with a matter where the Tribunal was itself sharply divided.

In the present proceedings, the divergent views of the Trial Chamber and the majority of the

Appeals Chamber, not to mention the two ferocious dissenting opinions, present the Court with a

dilemma that it did not encounter in 2007.

Authority of the Appeals Chamber

9. Of the eight judges of the ICTY who sat in Gotovina , at the Trial and Appeals Chamber,

three in the Trial Chamber and five in the Appeals Chamber, five of them w ere in favour of

convicting Gotovina and Markač. The Trial Chamber was presided by Alphonsus Orie, a very

distinguished Dutch criminal law specialist who worked, in his capacity as a defence lawyer, in the

early years of the Tribunal. Judge Orie was elected to the ICTY in 2001 and has served as a Trial

Chamber judge on many of its important cases. You may remember seeing him on the video two

days ago when there was an examination and cross- examination of the witnesses. Judge Orie’s

13Prosecutor v. Gotovina et al., IT-06-90-A; dissenting opinion of Judge Fausto Pocar, para. 39.

13Ibid.; dissenting opinion of Judge Carmel Agius, para. 1. - 45 -

views, and those of his two colleagues of the Trial Chamber  admittedly disputed by three judges

on the Appeals Chamber  are nevertheless still deserving of this Court’s attention. In the

Appeals Chamber, the two dissenting judges are also legal minds of great distinction and authority.

Judge Fausto Pocar, who was originally elected to complete the term of the late Antonio Cassese,

has himself served as President and was, before that, a member and also chairman of the United

Nations Human Rights Committee. Judge Carmel Agius served as a senior trial and appellate

judge in Malta for more than two decades before being elected to the ICTY, where he is currently

the Vice-President. Their views are not to be taken lightly either.

10. Let me make it clear that I do not in any w ay mean to cast aspersions on the credentials

of three judges in the majority in Gotovina, and especially to suggest any reproach directed against

President Theodor Meron, who is a great jurist and someone who has made huge contributions to

international law. But his judgments are sometimes controversial and he may well have been

mistaken in Gotovina. One much disputed ruling that he made a few months after Gotovina was

recently declared by the Appeals Chamber to have been wrongly decided, founded upon what the

Chamber called a “flawed premise” 13.

11. Mr. President, Members of the Court, within national justice systems, there is a general

sense that the judgments of the highest courts, the apex courts, the supreme courts, are superior not

only to the exten t that they trump the judgments of the lower courts as a matter of law but also

because they are of finer quality and therefore more authoritative in a substantive sense. The

reason for this view is that by and large the members of the highest courts are drawn from among

the most experienced, senior and sophisticated jurists in the land. Indeed, were this not so, the

highest courts would lack the gravitas that is essential for them to fulfil their role as the supreme

arbiters. But this is not necessarily the case at the international criminal tribunals.

12. The first international criminal tribunals, the International Military Tribunal and the

International Military Tribunal for the Far East, had no appeals chamber. There was no right of

appeal. The ICTY was the first international criminal tribunal with a right of appeal. The Statute

of that Tribunal, as proposed by the Secretary- General and adopted by the Security Council,

13Prosecutor v. Šainović (ICTR- IT-05-87-A), Judgement, para. 1623. - 46 -

provided that there be an appeals chamber because it was necessary to ensure a right of appeal to a

convicted person. The Secretary- General said this was because the right of appeal was a
138
fundamental element of individual civil and political rights . The Statute of the Yugoslavia and

Rwanda Tribunals, the same could be said about the ICC, does not make any distinction between

the experience, abilities or status of judges at the Appeals Chamber. How are the members of the

Appeals Chamber selected? This is decided internally, amongst the judges themselves, in the most

opaque manner, where a variety of factors unrelated to the knowledge and abilities of the individual

may come into play. All of this is to say that the presumptions that we may have about the

qualities of the individuals making up the higher and supreme judicial bodie s at the national level

are not necessarily applicable at the ICTY. It seems from the Statute that the superior status of the

Appeals Chamber is established by virtue of only one principle : it is larger. Whereas there are

three judges in a Trial Chamber of the Tribunal, there are five at the Appeals Chamber. This is not

unlike the situation at the European Court of Human Rights, where the judges are all equal but

where the Grand Chamber is more authoritative because it is more than twice the size of a

Chamber.

13. As far as the Prosecutor and the defendant  the Parties to the case  are concerned, a

three-judge majority of the Appeals Chamber overturns a unanimous three-judge Trial Chamber, as

is the case in Gotovina. But the Court here is not concerned with the binding effect of the

judgment. Rather, the question is whether or not the various determinations of the Trial and

Appeals Chambers are persuasive. From that perspective, viewing the reasons of the three- judge

majority of the Appeals Chamber as triumphing over those of the unanimous Trial Chamber is, I

would submit, simplistic, and mechanistic as a way of analysing these complex cases. It is for that

reason that the more accurate view of Gotovina may require us to describe the Tribunal as a

division of five judges to three, with a majority concluding there was a joint criminal enterprise

involving the highest levels of the Croatian régime aimed at removing Serbs from the Krajina.

14. Mr. President, Your Excellencies, u ltimately, the value tha t this Court may extract from

the Gotovina jurisprudence will be rooted in its assessment of the quality of the reasoning of the

13Report of the Secretary -General pursuant tpara. 2 of the Security Council resolution 808 (1993),
UN doc. S/25704, 3 May 1993, para. 116. - 47 -

various opinions. Here, the detailed and lengthy consideration of evidence by the Trial Chamber

ought to weigh heavily in its appreciation by the International Court of Justice. This Court may

also attach some significance to the very laconic, summary nature of the reasons of the Appeals

Chamber majority, a flaw that is cited by both dissenting judges. Indeed, the Appeals Chamber

majority was silent on many significant issues of fact that were in fact determined by the Trial

Chamber when it found Gotovina and Markač guilty.

15. For these reasons, the Court should adopt a careful and nuanced approach to the disputed

message that emerges from the ICTY in the Gotovina decisions.

The crime against humanity of persecution

16. In its Supplementary Observations, filed several months before the Appeals Chamber

issued its decision in Gotovina  the additional pleading  the Applicant stated that even if the

decision were to be upheld it would not be helpful to the counter-claim 13. Croatia rejected the idea

that the crime against humanity of persecution had been perpetrated as part of the joint criminal

enterprise that involved President Tudjman and other high officials in the Croatian r égime. Ergo,

the Trial Chamber undermined the proposition that even a “ lesser” form of genocide took place

during Operation Storm, this was Croatia’s position.

17. Croatia’s thesis rested on two fundamental errors, derived from misreading not only the

decision of the Trial Chamber but also the Judgment of this Court in the 2007 Bosnia case. First,

Applicant has misunderstood the relationship between genocide and crimes against humanity.

Second, Croatia’s selective reading of the Gotovina Trial Chamber decision overlooked the fact

that on several occasions the Tribunal concluded that the crime against humanity of persecution

was indeed part of the joint criminal enterprise.

18. Mr. President, Your Excellencies, on more than one occasion in its submissions, Croatia

has described genocide as an extreme form of crime against humanity, relying here upon reference

to the 2007 Judgment of this Court. Applicant associates genocide with the crime against humanity

140
of persecution . Applicant attaches considerable importance to this point, saying that this

13APC, paras. 1.3, 4.11, 4.16, 4.19.

14Ibid., paras. 1.3, 4.15. - 48 -

“undermines” the counter-claim . Even if in reality the point may not have much bearing on the

decision to be reached in this case, it seems prudent to address it, if for no other reason than to

assist the Court, should the matter be addressed in your judgment. In the 2007 Judgment, the Court

spoke of the relationship between genocide and crimes against humanity and did in fact cite a

decision of a Trial Chamber of the ICTY where this was discussed 142. We may dispute whether or

not the Court meant to incorporate everything in the lengthy citation as its own view on the matter.

Be that as it may, there is much other authority within the case law of the internation al criminal

tribunals for viewing the two categories, genocide and crimes against humanity, as having a certain

degree of autonomy.

19. The Appeals Chamber of the ICTY, in the leading case, Prosecutor v. Krstić, could not

143
have been more unequivocal: “The offence of genocide does not subsume that of persecution.”

The Appeals Chamber noted differences in the intent requirement, explaining, for example, that

unlike crimes against humanity “the intent requ irement of genocide is not limited to instances
144
where the perpetrator seeks to destroy only civilians” . Another useful authority is the Report of

the International Commission of Inquiry into Darfur, presided over by the late Antonio Cassese, set

up pursuant to a Security Council resolution in 2004. It noted that “[g]enocide is not necessarily

the most serious international crime. Depending upon the circumstances, such international

offences as crimes against humanity or large scale war crimes may be no less serious and heinous

145
than genocide.” I submit this material to the Court to be of assistance in studying this problem.

20. In the Additional Pleading, Applicant states that the Trial Chamber “rejected . . . in their

entirety” the contention that “persecution by murder, inhumane acts, cruel treatment,

disappearances, plunder or wanton destruction” made up part of the joint criminal enterprise 14.

Applicant contends that the Trial Chamber only entered convictions for the “less serious form” of

141
APC, paras. 4.15-4.16.
142Bosnia, p. 121, para. 188.

143Prosecutor v. Krstić (IT-98-33-A), Judgement, para. 229.
144
Ibid., para. 226.
145
Report of the International Commission of Inquiry on Violations of International Humanitarian Law and
Human Rights Law in Darfur, UN doc. S/2005/60, para. 522; emphasis in the original.
146APC, para. 4.13. - 49 -

147
the crime against humanity of persecution . Let me quote from the Gotovina Trial Chamber

judgement’s discussion of the joint criminal enterprise. At paragraph 2310, this is on your screens,

the Trial Chamber states:

“the crimes of deportation and forcible trans fer were central to the joint criminal
enterprise. The acts taken by members of the political and military leadership in this
respect aimed to target, and did target Krajina Serbs and were therefore
discriminatory. The Trial Chamber therefore finds the objective of the joint criminal
enterprise also amounted to the crime of persecution (deportation and forcible

transfer).”

I apologize to the Court, there is no French- language version of this judgement available, so we

have no official translation. The next paragraph, paragraph 2311:

“[M]embers of the Croatian political and military leadership took the decision
to treat whole towns as target for the initial artillery attack. Deportation of the Krajina
Serb population was to a large extent achieved th rough the unlawful attacks against
civilians and civilian objects in Knin, Benkovac, Obrovac, and Gračac, which the Trial
Chamber has found were carried out on discriminatory grounds. Based on the

foregoing, the Trial Chamber finds that unlawful attacks against civilians and civilian
objects, as the crime against humanity of persecution, were also intended and within
the purpose of the joint criminal enterprise.”

And further [Paragraph 2312] the “joint criminal enterprise also amounted to, or involved,

imposition of restrictive and discriminatory measures as the crime against humanity of

persecution”. And finally, paragraph 2314:

“the Trial Chamber finds that members of the Croatian political and military
leadership shared the common objective of the permanent removal of the Serb civilian

population from the Krajina by force or threat of force, which amounted to and
involved persecution (deportation, forcible transfer, unlawful attacks against civilians
and civilian objects, and discriminatory and restr ictive measures), deportation, and
forcible transfer.”

None of this can be surprising in light of the materials that have been presented to you over the last

two days.

21. Applicant distorts the import of the Trial Chamber j udgement by focusing on what

appears to be a largely technical distinction that was made with respect to forms of persecution.

Gotovina and Markač were indeed convicted of the crime against humanity of murder . The Trial48

Chamber said that “the murders as set out in chapter 5.3.2 and t he murder of Petar Bota constitute

14APC, para. 4.15.

14Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, paras. 1726-1736. - 50 -

149
persecution as a crime against humanity” . They were also convicted of the crime against

humanity of “inhumane acts” and of the war crime of “cruel treatment” 150. The Chamber

concluded that “the inhumane acts and cruel treatment . . . constitute persecution as a crime against

humanity” 15. The murders, inhumane acts and cruel treatment for which Gotovina and Markač

were convicted under the general heading “crimes against humanity” were not part of the joint

criminal enterprise as such, but they were deemed to be the natural and foreseeable consequences

of the joint criminal enterprise to remove permanently the Serbs from the Krajina 152.

22. Mr. President, Members of the Court, this is how the theory of the joint criminal

enterprise operates. An individual who participates in a joint criminal enterprise can be convicted

not only of the crimes he or she intended and that were part of the joint criminal enterprise, but also

those that were natural and foreseeable consequences. The Trial Chamber did not, of course,

conclude that the joint criminal enterprise included genocide, which was not charged in the

indictment. But its finding that there was a joint criminal enterprise aimed at the permanent

removal of the Serb population from the Krajina can hardly be said to undermine the counter-claim.

The 200-metre issue

23. The Applicant briefly raised the issue of the 200-metre standard that had been applied by

the Trial Chamber in Gotovina. The Trial Chamber established a kind of evidentiary presumption

that artillery shells landing more than 200 metres from a legitimate military target were either

aimed at civilian objects or were fired with indifference or disregard for civilian objects. This

matter became the heart of the Appeals Chamber ruling and, inevitably, of the two dissenting

opinions. The three judges of the majority of the Appeals Chamber in Gotovina said the 200-metre

limit adopted by the Trial Chamber was arbitrary and without foundation, although it did not

propose anything to take its place. Had the present case, this case, been heard by the International

Court of Justice two years ago, I doubt that we would have lingered on the 200- metre issue.

Perhaps it would not have been discussed at all.

149
Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, para. 1855.
15Ibid., paras. 1792-1800.

15Ibid., para. 1861.
152
Ibid., para. 2601. - 51 -

24. The Counter -Memorial explained that “artillery fire was of special importance for the

153
Croatian army in operation Storm” . Serbia cited the incendiary remarks of President Tudjman at

the Brioni Conference and Gotovina’s loyal response that he could destroy Knin in the entirety in a

154
few hours . Serbia referred to the statements of independent international observers and monitors

who were present in Knin dur ing the artillery bombardment 155. The Counter -Memorial described

156
the indiscriminate shelling of other towns . No mention was made anywhere of a 200- metre

standard. The elements of evidence that Serbia invoked were discussed in great detail by the Trial

Chamber and in the dissenting opinions in the Appeals Chamber, especially the opinion of

Judge Agius, but we could not of course have known that because the Counter -Memorial was filed

nearly a year and a half before the Trial Chamber Judgement was issued.

25. The 200-metre limit did not figure in the Reply of the Applicant either. The Reply was

157
filed four months before the Gotovina Trial Chamber decision .

26. Serbia did not even mention a 200-metre limit in the Rejoinder, filed six months after the

Trial Chamber decision. Serbia did refer to the judgement, of course, but it selected as an

exemplary citation a discussion of the shelling in which the Trial Chamber said “that at distances of

300 to 700 metres” the impacts were “relatively far away from identified artillery targets”, and that
158
a significant number of shells fell within that zone .

27. The 200-metre limit was one component of the analysis adopted by the Gotovina Trial

Chamber in its assessment of a variety of evidentiary sources. It was only one component and, as I

have just mentioned, in at least one other part of the judgement the Trial Chamber seems to have

looked at another standard, of 300 to 700 metres . Taken as a whole, these elements resulted in the

conclusion that the artillery bomba rdment of Knin and of other cities was at times indiscriminate

but that, even worse, it actually targeted non -military objectives. And, as the Court has seen, there

is other evidence besides a presumption about the radius of targeting that supports this observation.

153Counter-Memorial of Serbia (CMS), Vol. I, para. 1215.
154
CMS, para. 1217.
155CMS, para. 1223.

156CMS, paras. 1225-1228.
157
Reply of Croatia (RC), paras. 11.71-11.75.
158Rejoinder of Serbia (RS), para. 726. - 52 -

159
In a part of its judgement, the Trial Chamber spoke of the 200-metre standard . And the majority

of the Appeals Chamber said that this was an error, moreover that it was decisive in tipping the

opinion of the Trial Chamber to concluding that the artillery attack was indiscriminate, and that this

in turn tipped the opinion of the Trial Chamber in its assessment of a range of other evidence

indicating the brutal ethnic cleansing of Operation Storm, and that this in turn tipped the opinion of

the Trial Chamber in concluding that Operation Storm was itself a “joint criminal enterprise ” to

remove ethnic Serbs from the Krajina.

28. As the dissenting judges point out, this was an extraordinary and unprecedented move by

the Appeals Chamber, using one flaw in a massive judgment, pulling at it like a loose thread until

the entire garment unravelled. Judge Agius noted the legal sleight of hand by which the

three-judge majority used the 200-metre standard, as a pretext to review all of the evidence rather

than articulate the correct legal standard, which it never actually did. He noted how the majority

faulted the Trial Chamber for failing to justify its 200-metre standard, yet then concluded that there

is no such standard and that, accordingly, the shel ling could not be deemed indiscriminate. He

said:

“I find the fact that the Majority feels it can conduct a de novo review and come
to its conclusions within just three paragraphs of the Appeal Judgement to be quite

staggering, and, in my view, unfairl y dismissive of the Trial Chamber’s findings. I
note that the Trial Judg ement totals over 1,300 pages, with the evidence and Trial
Chamber’s findings on the unlawfulness of the attacks on the Four Towns set out over
200 pages.” 160

Judge Agius concluded that “the Majority has impermissibly tied all of the Trial Chamber’s

findings to the 200 Metre Standard, and then simply dismissed them, when it should instead have

formulated and applied its own legal standard” . 161

29. Mr. President, Your Excellencies, I canno t do justice to the debate in the various

opinions, majority and minority, in the Appeals Chamber decision as well as the exhaustive

analysis of the facts in the more than 1,300 pages of the Trial Chamber judgement. They will no

doubt be consulted by the Court as it deliberates on this case. I would only make one final

159
Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, para. 1898.
16Prosecutor v. Gotovina et al. (IT-06-90-A); dissenting opinion of Judge Carmel Agius, para. 12 (reference
omitted).
161
Ibid., para. 14. - 53 -

observation on this subject. Because the majority of the Appeals Chamber hinged its entire

analysis on the 200- metre issue, it did not discuss in any depth the other findings of the Trial

Chamber. Consequently it did not really find fault with most of it, other than in a wholesale

dismissal of the material because it said this was a logical consequence of the rejection of the

200-metre standard. In other words, should this Court be attracted by the analysis of the dissenting

judges in the Appeals Chamber, it will then find that the bulk of the findings of the Trial Chamber

on a range of issues concerning Opera tion Storm are unchallenged and compelling. As a general

proposition, its findings are very supportive of the evidentiary submissions and the legal analysis

associated with the counter-claim. The Trial Chamber did not, of course, pronounce itself on the

genocide issue, but that is because genocide had not been charged.

30. In chall enging the basis of the c ounter-claim, the Applicant says that Serbia bases its

argument on only one episode, Operation Storm, which took place over a period of several days,

contrasting this with its claim which recites a litany of abuses over a much longer period of time .

Croatia seems to have lost sight of the case law of this Court. Presumably Croatia would also

dismiss the view that genocide took place at Srebrenica because of the short duration of the violent

attack. In its Additional Pleading, the Applicant seems to suggest that we have not produced

evidence before the Court, and that we rely entirely on factual findings by the Trial Chamber in

162
Gotovina , and Mr. President, Members of the Court, you know t hat this is not the case. It is an

absurd suggestion. Our counter-claim with supporting evidence was filed here at the Court long

before the Gotovina judgement. Much of the most valuable evidence, of course, was produced

during the trial of Gotovina and the others, but surely that is to be expected. The Prosecutor did not

charge genocide, but most of the facts that he used to make his case for crimes against humanity

are also germane to proof of the crime of genocide. Serbia’s case certainly does not stand or fall on

evidentiary findings by the Trial Chamber in Gotovina about killings, serious bodily and mental

harm and conditions of life calculated to destroy the group.

16APC, paras. 4.23-4.30. - 54 -

Brioni

31. Mr. President, Members of the Court, I now turn to the Brioni meeting, the Brioni

transcript. In the annals of genocide, ethnic cleansing and related atrocities, it is rare to be able to

pinpoint a meeting where a plan to destroy a group was prepared, presented and discussed. The

celebrated example, of course, is the Wannsee Conference of February 1942. This meeting of

senior Nazis plotted the destruction of the Jews in Europe using the notorious euphemism of the

“final solution”. Some so-called historians who deny or triviali ze the persecution and destruction

of the Jews argue that the conference was ambiguous, an odyne and insignificant, and that the

words used and the records kept defy interpretation, raising questions about what was meant rather

than providing answers. But taken in its context, including the racist campaign that preceded it as

well as an understanding of the tragedy that followed, there is no doubt about the core of what was

decided at Wannsee.

32. Is Brioni any different? The Applicant argues that the meeting has been misrepresented,

that the records are complete and equivocal . In passing, it should be noted that when the Brioni

transcript appears to be helpful, for example in its suggestion that an escape route be left, the

163
Applicant is more than happy to rely upon it . The Applicant also claims that our case stands or

falls on Brioni, as if evidence of a planning meeting is required in order to make a case that

genocide has been committed. But were that the case, the Applicant would be better to fold its

tents and return home, because there is no such planning meeting alleged in the Application.

33. As it was with Wannsee, in understanding the significance of Brioni the context is

everything. But I would submit that t he fog of the meeting’s transcript lifts when framed by what

we know about what came after as well as what came before.

34. The Applicant alleges that the Brioni meeting contains no evidence of intent on the part

of the Croatian leadership to bring about the physical destruction of the Serb civilian population of

Krajina. Croatia maintains that it was no part of its politic al or military strategy to eradicate the

Serb civilian population. The Applicant contends that the Respondent relies on a single sentence

164
uttered by President Tudjman . It further alleges a tortuous and disingenuous misreading on the

16APC, para. 4.16.

16RC, para. 12.13. - 55 -

part of the Respondent . The Applicant claims that read objectively and in context, the words of

President Tudjman during the meeting were directed to the lawful military objective of securing the

defeat, retreat and expulsion of Serb military forces from the territory of Croatia.

35. Mr. President, Members of the Court, the Applicant attempts to characteri ze Operation

166
Storm as the exercise of Croatia’s legitimate right to liberate occupied territory . It is portrayed

as a just war. But Operation Storm was planned by a mee ting of criminals, at Brioni. Whatever

conclusion is reached about the existence of a genocidal plan  I will come to that in a moment 

there can be no doubt that this was a meeting at which criminal acts were planned. Consider

President Tudjman’s remark at the meeting where he mixes civilians and combatants, saying that as

a result of the attack, the civilians will set out, “ and then the army will follow them, and when the

columns set out, they will have a psychological impact on each other ” 16. This, by the way, is a

remark that Applicant cites in support, curiously. But Tudjman, in those words, is targeting

civilians, something whose prohibition by international law is beyond dispute. The Applicant has

tried to portray Brioni as an innocent strategy m eeting where lawful acts of war were organi zed.

But in reality, as this remark by President Tudjman makes clear  although there is a mass of

other evidence  it was a criminal conspiracy. Croatia may contend that this was not a meeting at

which genocide was planned, a position that we obviously dispute. But it cannot argue that nothing

unlawful happened at Brioni.

36. The Brioni meeting transcript provides conclusive evidence of the existence of a policy

on the part of the Croatian leadership to eradic ate the Serbs living in Krajina  military personnel

and civilian population alike. The policy adopted at Brioni went beyond t he aim of rendering the
168
region “ethnically homogenous” . The communication at Brioni reveals the intent to bring about

the disappearance of the Serb population not simply through their removal, but likewise through

their physical destruction.

165
RC, paras. 12.7 and 12.8; APC, para. 4.8.
166RC, para. 11.41 ff.

167Brioni transcript, p. 15.
168
See the Applicant’s contention to the contrary, A PC, para. 4.9 ff. - 56 -

37. Mr. President, Members of the Court, a lthough the Applicant contends that the Brioni

transcript should be read contextually and not se lectively 169 a position with which we of course

agree  the Applicant fails to take into consideration the particular political, military and social

background against the backdrop of which the Croatian Commander-in-Chief and the military

leadership devised and planned Operation Storm. The determination of a State’s responsibility

under the Genocide Convention entails an analysis of the propensity of the State apparatus as a

whole towards a particular attitude and treatment of an ethnic or national group  or a substantial

part thereof  on a State level. Such a propensity is to be inferred from the general context and

background against which concrete military actions are planned, devised and executed.

Consequently, the determination of a pattern of cond uct with respect to a specific national/ethnic

group at a State level necessitates a thorough and comprehensive account of the overall political

and social circumstances and sentiments that prevailed.

38. It is true that some of the statements made may lend themselves to more than one

interpretation. Applicant has attached considerable significance to the remark by

170
President Tudjman about leaving civilians a way out . Here is what he said:

“[W]e must take those points in order to completely vanquish the enemy later
and force him to capitulate. But I’ve said, and we’ve said here, that they should be

given a way out . . . Because it is important that those civilians set out, and then the
army will follow them, and when the columns set out, they will have a psychological
impact on each other.” 171

It is posited that this shows some sort of charitable, humanitarian and benevolent spirit on his part.

The overall context, however, leaves no doubt about what was going on. I can do no better here

than to cite Judge Fausto Pocar in his dissent in Gotovina, highlighting a passage in the Trial

Chamber judgement, to the effect that “the references at the meeting to civilians being shown a
172
way out was not about the protection of civilians but about civilians being forc ed out ” .

Judge Pocar said, “In light of the Trial Chamber’s careful and detailed review of the minutes of the

169
APC, para. 4.8.
170RC, para. 11.50.

171Brioni transcript, p. 15.
172
Prosecutor v. Gotovina et al. , IT-06-90-A; d issenting opinion of Judge Fausto Pocar, para. 26, citing
Prosecutor v. Gotovina et al., IT-06-90-T, Judgement, para. 1995. - 57 -

Brioni Transcript”, he said it was “simply grotesque ” to attach any benign interpretation to the

173
Brioni transcript “simply grotesque” .

39. Careful perusal of the relevant sections of the Brioni meeting transcript reveals that

Tudjman’s only concern was if the Serbs were forced to stand and “fight to the bitter end ”, this
174
would exact “a greater engagement and losses on [the Croatian] side” .

40. Similarly, purely practical considerations underlie the insistence of Tudjman at Brioni

that artillery should be used sparingly during the attacks, a statement to which Applicant attaches

significance 17. Tudjman was cognizant of the fact that at the tim e the Croatian military lacked

enough ammunition. This was the only reason why the artillery attacks during Operation Storm did

not reach the extreme magnitude of inflicting complete destruction on the Serbian side. Solid proof

in this regard is provided by Tudjman’s own words, reference to which has already been made by

Mr. Obradović yesterday 176. Let me briefly remind th e Court what Tudjman said: “ If we had

enough [ammunition], I too would be in favour of destroying everything by shelling prior to

advancing.” 177

41. In assessing the context, we turn first to the man who presided, the man who was in

charge. And perhaps, had Franjo Tudjman lived longer, he would have found himself in the dock

here in The Hague, perhaps charged with genocide. We might then benefit from his own attempts

to explain the words he used at Brioni. Such an account might or might not be reliable, as is often

the case when individuals attempt to explain and rationalize the awkward and discomforting

comments they have made. But , the absence of Tudjman does not mean we cannot understand

what he meant.

42. As a starting-point, it is to be noted that, albeit not direct evidence in it self, the character

of a person may nevertheless provide an indication as to that person’s propensity t owards a

particular pattern of behaviour or conduct  this is straightforward criminal law . The character of

173
Prosecutor v. Gotovina et al., IT-06-90-A; d issenting opinion of Judge Fausto Pocar, para. 26, citing
Prosecutor v. Gotovina et al., IT-06-90-T, Judgement, para. 1995.
174
Brioni transcript, p. 7.
175RC, para. 12.23.
176
CR 2014/17, para. 31 (Obradović).
177
Brioni transcript, p. 22. - 58 -

a person may be relevant in the assessment of other circumstances, such as motive and intent,

depending on the circumstances at hand. Although th e subject-matter of the ICJ proceedings does

not concern the individual criminal responsibility of the participants at the Brioni meeting, the

ideological background of the person assuming the highest political and military position in the

hierarchy of the Croatian State, thus, in a position implying the power to devise the State policy, is

of undoubted relevance. The position of Head of State and C ommander-in-Chief is in and of itself

a powerful tool for implanting and promoting the personal beliefs and i deology of then

President Tudjman as the policy of the Croatian State towards the ethnic Serb minority within its

territory.

43. Mr. President, Your Excellencies, o ur written submissions, as well as remarks of my

colleagues during these hearings, have drawn attention to Tudjman’s character and his ideological

outlook. I will not belabour the point any more here today except that there is nothing in

Tudjman’s profile to suggest any particular incompatibility between his world view and genocidal

intent. That is probably an understatement.

44. As a member of the Croatian Democratic Union ( Hrvatska demokratska zajednica , or

HDZ) Tudjman was an ideologue who promoted reconciliation with the Ustashe movement.

During the Second World War the Ustashe collaborated with the Nazis; after the war, it constituted

a permanent terrorist threat to Yugoslavia until the country broke up. Tudjman’s notorious racist

views about both Muslims and Serbs have already been discussed by Mr. Obradović yesterday 178

and Mr. Jordash this morning.

45. Serbs were not the only targets of this monstrous and violent chauvinist, by the way.

Last May, a Trial Chamber of the ICTY convicted several persons on the basis of their

participation in a joint c riminal enterprise with respect to Bosnia and Herzegovina of which

FranjoTudjman was at the top. The purpose of the joint criminal enterprise was, and I quote from

the French because there is only a French language version of the judgement: “opérer le nettoyage

ethnique de la population musulmane sur le territoir e revendiqué comme étant croate” 179; to

17CMS, para. 431; CR 2014/17, para. 150 (Obradović).

17Prosecutor v. Prlić et al., IT-04-74-T, Judgement, Vol. 4, para. 1232. - 59 -

conduct ethnic cleansing of the Muslim population on the territory claimed as being Croatian.

Ethnic cleansing was this man’s trademark, his “marc de commerce”, his modus operandi.

46. Tudjman’s perception of the Serbs was of persons  and you heard the quote 

“spreading cancer in the heart of Croatia, cancer which was destroying the Croatian national being

180
and which did not allow the Croatian people to be the master in its own house . . .’ The Court

will find similar statements in the case law of the International Criminal Tribunal for Rwanda.

47. When Tudjman says, at Brioni, “ we have to inflict such blows that the Serbs will to all

practical purpose s disappear ” 181, his words were being understood and digested by other

participants in the meeting who knew of his racist views and of his vision of the future of Croatia.

The suggestion that he was inadvertently ambiguous strains credulity.

48. Often, whe n the application of the Genocide Convention is considered, there is a

tendency to focus on the immediate circumstances, the acts of killing, causing mental and bodily

harm, and deprivation of the means of survival, and on the number of victims and their g eographic

location. Sometimes this can distract us from the broader issue. Genocide is above all a crime of

racial hatred. This is the feature that prompted the General Assembly, in the aftermath of the

terrible crimes of the Second World War, to condem n it at its first session as an international

182
crime and to proceed, two years later, to adopt the Convention. It is the racial hatred associated

with the acts that enables conclusions to be drawn about the intent behind them. The Brioni

meeting is part of the context of Operation Storm. But the words spoken there need to be

interpreted within this broader background of anti-Serb policy at a State level in Croatia.

49. The specific intent to destroy the Serb population of the Krajina is also suggested by the

thirst of the Croatian leadership for a military attack. History provides other examples of the

refusal of extremists, themselves bent on genocidal destruction of an ethnic group perceived as an

enemy, to reach a negotiated settlement because it frustrates their ultimate goal. Only a year before

Operation Storm, génocidaires in Rwanda sabotaged a process of peaceful settlement involving a

18BBC Summary of World Broadcasts, 28 Aug. 1995, Part 2 Central Europe, the BalkansFormer Yugoslavia;
Croatia; EE/D2393/C. Available at: http://emperors-clothes.com/docs/tudj.htm video available at:
http://www.youtube.com/watch?v=OOqB4sQ5am4 . Speech of Tudjman in Knin on 26 Aug . 1995; CR 2014/17,
para. 142 (Obradović).

18Brioni transcript, p. 2.
182
UN doc. A/RES/96/I. - 60 -

power-sharing régime in order to proceed with their “ final solution” of what they called the “ Tutsi

problem”. Perhaps Tudjman and his henchman had studied this case from Africa. What we can

say is that a negotiated settlement was not sought by the Croatian leaders. We can even sense this

in part of the Applicant’s submissions, where there is talk of Croatia’s r ight to retake territory and

of the alleged validity of the military action and the use of force under international law. In fact,

there was an adamant unwillingness on the part of Croatia to genuinely engage in negotiations for

the peaceful resolution of the conflict with the ethnic Serbs living in Croatia.

50. The meeting of the Croatian leadership on 31 July 1995 and the subsequent events

contemplated at Brioni, taken individually and in conjunction with each other, disclose the specific

intent of the Croatian authorities to bring about the disappearance of the ethnic Serbs of the

Krajina. The intent was to effect the disappearance from the region without differentiation as to

Serb rebel forces or civilian population, including through their physical destruction. The Brioni

communication entails a number of manifestations of genocidal intent each of which finds further

reflection in the subsequent events that took place on the ground.

Krajina Serbs as an “ethnic group”

51. Mr. President, Members of the Court, another point to which the Applicant attaches some

importance concerns the identity of the victims of Operation Storm. The Applicant begins

Chapter 4 of the Additional Pleading by contesting Serbia’s affirmation that the Serbs of the

Krajina constitute a distinct community with its own historical significance. This is in a section

entitled the “p rotected group”. The relevant paragraphs 183 are not at all germane to the debate

before the Court and I would suggest that you disregard them, except for the acknowledgment by

the Applicant that the Krajina Serbs constitute an ethnic group for the purposes of applying

Article 2 of the Convention. The two countries, Serbia and Croatia, may not agree about the

historical description of the former and present residents of the Krajina who are of Serb ethnicity.

This will come as no surprise to anyone. But of course that is not an issue that the Court needs to

resolve. The only question is whether those peoples constitute one of the four groups protected by

18APC, paras. 4.3-4.4. - 61 -

Article 2 of the Convention. Does Croatia really mean to suggest in those paragraphs that this is a

matter of dispute?

52. The Applicant admits the following: that Croatian Serbs constituted a separate national

or ethnic group and that the Serb civ ilian population in the Krajina “represented a substantial part

of that group” 184. Where the Applicant tries to obscure or muddy this point, and therefore distract

the Court from its solemn task, is by quarrelling about whether the Serbs of the Krajina constitute a

separate ethnic or national group. In the relevant paragraphs of the Applicant’s final submission

there is a hint that this point is of legal relevance to the dispute before the Court. The Applicant

seems to concede that there are indivi duals that it describes as the “Serb civilian population ”

ordinarily resident in the part of Croatia that was defined as the RSK from 1992 to 1995. But,

Mr. President, Your Excellencies, this “Serb civilian population” can only be one of two things: a

distinct national, ethnic, racial or religious group or a substantial part of a distinct, national, ethnic,

racial or religious group.

53. This is an issue to which the Court turned in the 2007 case when it considered that the

Muslim population in Srebrenica and the surr ounding region was a significant part of a group. In

light of that precedent, it cannot be in dispute that the “Serb civilian population” ordinarily resident

in the part of Croatia that was defined as the RSK, that Serbia has elected to describe as the

“Krajina Serbs”, falls within the scope of Article 2 of the Genocide Convention. Applicant would

have saved us some time if it had just made this admission in a simple sentence instead of two

rather distracting paragraphs that consume the better part of a page in the Additional Pleading.

54. Finally, let us note that the ICTY regularly uses the term “ Krajina Serbs” without

resorting to inverted commas, which one might expect if the expression were contentious or in

some way loaded with political connotations.

Reasons for military intervention in the Krajina and the goals of Operation Storm

55. Regaining control over Krajina militarily was a long -standing plan of the Croatian

political leadership. The peaceful re integration of the territory of Krajina was not an option for

Croatia. The Croatian authorities were determined to gain control over Krajina by force.

18APC, para. 4.4. - 62 -

185
Indicative in this respect is President Tudjman’s opening statement at the Brioni meeting , as well

as the testimony of witness Galbraith  the American Ambassador  who when questioned in the

ICTY Gotovina case stated: “Let me clarify. I knew substantially before June 10th, and this is

reflected in lots of documents, that it was Tuđman’s plan in 1994 to take the Krajina militarily.” 186

It was, therefore, not the Serb, but the Croatian side that was intransigent and stalling for time,

unwilling to engage in peaceful negotiation in good faith. And the Brioni transcript also attests to

the fact that the Croatian political and military leadership were w ell aware of the Serb authorities ’

willingness to achieve peaceful resolution of the conflict 18. The Croatian authorities knew that the

Yugoslav G overnment was condemning the Croatian aggression and was calling upon the

international community to ensure the cessation of hostilities and a political dialogue. The

Croatian leadership was also aware that the Serbs had accepted the Stoltenberg p lan, that they

would not attack, that they had allowed the United Nations Confidence Restoration Operation in

188
Croatia (UNCRO) to deploy on the borders as observers. This is all in the Brioni transcripts .

56. The Croatian political and military leadership were seriously concerned with the

willingness on the part of the Serbs for peaceful solution of the conflict 18. The Croatian

authorities were alarmed that the Serb attitude at the time was depriving Croatia from the necessary

justification to launch a military attack. The Croatian political and military leadership

acknowledged the need to “find some kind of a pretext” for their actions, for their “venture in order

to proceed according to plan” 190. Here is what President Tudjman said: “So, I [want] to hide what

we are preparing for the day after. And we can rebut any argument in the world about how we

didn’t want to talk . . .” 191

57. This was nothing new. Operation Flash, some months earlier, also provides evidence of

the planning and manufacture of pretexts for the ignition of hostilities and the initiation of military

185
Brioni transcript, p. 1.
186
Prosecutor v. Gotovina, transcripts, 23 June 2008, witness Galbraith, p p. 4921-4922; RS, para. 680.
18Brioni transcript, pp. 1-2.

18Ibid.
189
See the statement of the Croatian Deputy Prime Minister, Mate Granić, at a closed session of the Croatian
Government discussed in RS, para. 682.
190
Brioni transcript, p. 1.
19Ibid., p. 32. - 63 -

operations. There were also provocations of incid ents on the part of Croatia aimed at imputing to

the Serbian forces the initiation of hostilities. Let us recall Tudjman’s remark when Operation

Flash was being conceived: “ [W]e should say Serbian forces caused an incident again. I told
192
Ministers that t hey should go in two or three cars and let [the Serbs] shoot at them . . .”

Scenarios were devised and incidents concocted for the purpose of insinuating offensive conduct

on the part of the Serb forces. See the statement , Mr. President, Members of the Court, by

Gojko Šušak during the same discussion contemplating Operation Flash: “Mr. President, the worst

case scenario would be to go in, let ’s say, two cars, two vans, leave them, have them riddled all

193
over with bullets, and film this for television . . .”

58. On the eve of Operation Storm, less than a day before the actual commencement of the

military operation, the Croatian leadership sent a misleading message to the Serbs and to the

international community by pretending to be engaged in the peace ful negotiations in Geneva. The

Croatian leadership assumed this attitude as a mask  to give the impression of accepting the talks

held in Geneva  while preparations for the launch of the military attack were already

underway 194.

59. Living peacefully toget her with the ethnic Serbs was simply not an option for the

Croatian leadership. A military operation which would eradicate the Serbs was the only course of

action contemplated by the Croatian leadership. Despite the combined efforts of Serbia and of the

international community for peaceful resolution of the Krajina conflict, Croatia stood adamant on

its decision to proceed with military intervention against the ethnic Serbs. The disappearance of

the ethnic Serbs from the region was a deliberate policy on the part of the Croatian leadership,

something that emerged and ripened over the years within a conflict of ethnic hatred, as has

happened in other countries where genocide has occurred. The genocidal intent crystallized during

the Brioni discussion.

60. The Applicant itself acknowledges the extreme magnitude of the intended military

intervention by using the word “overwhelming”with respect to the attack on the Serbs planned by

192
RS, paras. 661 ff.
19Ibid.
194
Brioni transcript, p. 2; RS, paras. 674-677, referring to the testimonies of Babić and Akashi in the ICTY Babić
case. - 64 -

the Croatian leadership 195. Consequently, the only way in which the military operation was to be

conducted, as articulated by the commander -in-chief, was through the infliction s of “such blows

that the Serbs [would] to all practical purposes disappear, that is to say, the areas [the Croats] [did]

196
not take at once [had to] capitulate within a few days” . The intended blows on the Serbs were to

be of such magnitude which would prevent the Serb forces from recovering and would compel

them to capitulate, and that, Mr. President, Members of the Court, is what happened.

61. It is important to note that at the time these statements were made the Croatian political

and military leadership were well aware of the considerable demorali zation and internal

disorganization of the Serb forces, as well as of the Croatian military superiority, both in

quantitative and qualitative aspects. As has already been noted by Mr. Obradović, on one side

were 150,000 soldiers, while on the other were around 30,000 soldiers of the Serbian army of the

Krajina 19. The Serbian army was suffering structural weaknesses and did not have enough combat

198
formations to maintain the depth and mobility needed to contain a penetration of the adversary .

62. During the Brioni meeting it was acknowledged that the primary concern of the Serbian

forces at the time was not how to fight, but how to flee. Still, the Croatian political and military

leadership insisted on the extreme magnitude of the military operation. Consequently, the

eradication of the Serbs from the region was an easily conceivable and most logical consequence of

the intended military attack.

63. Applicant has replied to the c ounter-claim by producing two documents suggesting

199
Croatian officers were to ensure compliance with international humanitarian law . But the

existence of written orders does not prove in itself that instructions to observe humanitarian law did

in fact reach those to whom they were addressed  the Croatian soldiers. In fact, the written

195
RC, para. 12.14, where it is observed that the President was “instructing his senior military personnel that
Croatian forces were to use overwhelming force in order to subdue the Serb forces ”.
196Brioni transcript, p. 2.

197CMS, para. 1213; CR 2014/17, para. 51 (Obradović).
198
Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990-1995 (Washington, 2002), Vol. I, p. 375, see further, pp. 367-376 (hereinafter “CIA Report”; available at the Peace
Palace Library); CR 2014/17, para. 51 (Obradović).
199
RC, Anns. 170 and 172. - 65 -

orders were no more than a component of the camouflage for an attack whose very raison d’être

was an attack on non-combatants and therefore in breach of the laws of armed conflict ab initio.

64. We know that the soldier on the ground got a different message. As the evidence

200
submitted by the Respondent and discussed at length by Mr. Jordash and Mr. Obradović attests ,

the message must not have reached soldiers on the ground that they were to observe humanitarian

law. Quite the contrary.

65. Respondent has provided a wealth of evidence that portrays the real perception of the

Croatian soldiers towards the Serb civilians. The Croatian army viewed all Serbs as enemies who

had to be eliminated. And you saw the video of Witness Hill, whose testimony was reviewed by

Mr. Jordash on Wednesday afternoon 201, it portrays the eagerness of the Croatian soldiers to enter

202
into combat and kill “ all the Serbs ”. As we can see in his testimony , even a U nited Nations

official  an interpreter  was perceived as a lawful military target: he was to be killed on

203
account of his Serbian origin .

66. Mr. President, Members of the Court, t he vicious artillery attack on civilian targets is of

course only one part of the evidence pointing to the subjective element of the crime of genocide.

Mass expulsion of the civilian population from Krajina was also carefully orchestrated by the

Croatian authorities. The refugee columns were deliberately ambushed, sh elled and executed by

the Croatian soldiers on the way. The Croatian leadership at Brioni was well aware that the

retreating columns would consist of civilians as well as of fleeing military personnel. This is clear

from Tudjman’s insistence on the importance that the civilians set out and then be followed by the

military 204. Providing an avenue of retreat, as agreed upon at Brioni, was not intended to guarantee

the protection of the fleeing columns. Given Tudjman’s insistence at the meeting that the civi lians

be given a way out, it is clear that the Croatian authorities not only anticipated the mixed character

of the columns, but very deliberately devised a scenario whereby the Serb forces would intermingle

with the Serbs civilians in the refugee columns. Furthermore, as the events that took place during

200
CR 2014/16, paras. 30 ff. (Jordash), CR 2014/17, para. 79 and para. 130 (Obradović).
201
CR 2014/16, paras. 5 ff. (Jordash).
202Ibid., para. 14 (Jordash).
203
See also RS, paras. 718-719.
204
Brioni transcript, p. 15. - 66 -

Operation Storm suggest, the refugee columns were deliberately ambushed, shelled and those in

them were executed by Croatian soldiers.

67. The mass killings of the Serbs who remained in the region represent a clear illustration of

the genocidal intent of the Croatian leadership towards the Serbs in the Krajina. While the

presence of Serb military personnel intermingled with civilians in the refugee columns may have

provided some form of a pretext for att acks on the fleeing civilians by the Croatian army, it was

impossible to mask the attacks on the population that remained behind in the region. The attitude

of the Croatian military towards the Serbs who stayed behind is an unambiguous manifestation of

the intent to destroy the group as such rather than merely to deport or displace it by force. The

force used by the Croatian military went beyond the aim of motivating those Serbs who had

remained to leave the region. The force employed during the military operation was intended to

physically destroy the population that had stayed behind.

68. Most of the Serbs who did not flee and did not hide from the Croatian forces fell prey to

the army or police and lost their lives. The population in the cities and v illages was targeted and

killed indiscriminately simply on account of Serb origin. The Serbs who remained in Krajina were

tracked down and executed because of their ethnicity. The persons who stayed behind were those

who were either unable to flee (due t o advanced age or a disability) or those who had followed the

appeal of the Croatian leadership in the media not to withdraw , relying on the illusory assurance

that their rights would be protected. Not only did the Croatian soldiers kill everyone whom the y

were able to track down, but they also lured those who had escaped from the massacres to come out

of hiding. Such, for instance, was the case of some shepherds from Gračac. Those shepherds were

urged by the Croatian military to come down from the mountain pasture under the pretext that they

205
would be provided with new identification documents . The moment the shepherds returned to

the village, they were executed by Croatian soldiers. T he manner in which the majority of the

killings were committed  through shots in the back of the head 206 proves, first and foremost,

the massive and uniform character of the executions and, second, the lack of any resistance, let

alone any hostility, on the part of the victims towards their executioners. Irrespective of the exact

20CR 2014/17, p. 42, para. 100 (Obradović).

20Ibid., p. 47, para. 115 (Obradović). - 67 -

number of civilians killed, the manner in which the executions were conducted, as well as the fact

that the Croatian army massacred virtually everyone who had stayed behind, is in and of itself

evidence of genocidal intent. The legal barriers imposed by the Croatian authorities for the purpose

of preventing the return of the Serb refugees in the aftermath of Operation Storm also belong to the

wider context surrounding the Brioni meeting and the military offensive devised by the Croatian

leadership. It too helps us to identify the criminal intent and may I remind the Court one more time

that nobody has been held accountable for this.

Conclusion

69. I come to my conclusions. Mr. President, Members of the Court, when the first session

of the United Nations General Assembly, meeting in New York in 1946, condemned genocide as

an international crime, it spoke of “ denial of the right of existence of entire human groups ”. The

General Assembly said that such denial not only shocked the conscience of man kind but that it

“result[ed] in great losses to humanity in the form of cultural and other contributions re presented

by these human groups”. A century ago, the territory that is today Croatia was the home not only

to a Croatian majority but also to an imp ortant Serb ethnic minority. An initial genocidal attack,

during the Second World War, involved the mass murder of Croatian Serbs whose population

declined from about 17 per cent to less than 15 per cent of the overall population.

70. But the Nazis and t heir local allies did not succeed in totally destroying the Serb

population of Croatia. When Yugoslavia began to break up, in 1991, Serbs represented about

12 per cent of the Croatian population. After the war, they are barely 4 per cent of the total. It is a

tragic loss, for the individual victims, for a Croatia that is less and less diverse, and for humanity as

a whole, as the General Assembly resolution reminds us. It is also an individual crime, about

whose planning we know a great deal. Where we l ack direct evidence of all aspects of the

genocidal scheme and intent, we can nevertheless draw the inexorable conclusions that flow from

the nature of the attack, the means that were used, the propaganda that accompanied it and the

tragic result. The definition of genocide in Article II of the Convention uses the famous phrase “in

whole or in part”. And, indeed, most genocides are arrested before they are fully carried out. They

are committed in part. But t he intentional destruction of the Krajina Serbs stands as a tragic and - 68 -

barbaric example of a genocide where the sinister plan to destroy an ethnic group is now virtually

complete. Nothing comparable  I repeat, Mr. President, Members of the Court  nothing

comparable, has taken place anywhere in Europe since 1945.

71. Mr. President, Members of the Court, I am most grateful for your attention. This

completes my submission and I would ask if you would give the floor to Mr. Obradović for a few

more minutes.

The PRESIDENT: Thank you, Professor Schabas. I call on the Agent, Mr. Obradović for

his concluding remarks. Mr. Obradović, you have the floor.

Mr. OBRADOVIĆ:

C ONCLUSION

1. Thank you Mr. President. Mr. President, Members o f the Court, as Professor Schabas

emphasized it was not our choice to come before the Court to litigate these issues. Many peoples

have differences about their view of the past. Croatia and Serbia are no exception. Over time, such

matters require our at tention, although it is important that we not be distracted from our shared

objective, which is focused on the future, on peace and prosperity.

2. As this Court knows very well, another of our neighbours chose to debate the aspects of

the conflict here in The Hague. The limited jurisdictional framework of the Genocide Convention

is hardly suited for such complex discussions. We think that the issues about responsibility for

violations and abuses committed in that conflict, and in the conflict with Croati a, are better

addressed through other mechanisms and in other forums.

3. Unfortunately, despite our best efforts to find an appropriate approach that would not

require us to appear before the Court, Croatia has insisted upon a debate in this august forum . It is

for that reason that we have chosen, as is our right, to meet the claim with a counter -claim. This is

a time-honoured response, available in virtually all legal systems.We are saying: It was not our

choice to come before you, but if the other party insists, we too have a claim related to the dispute.

4. Indeed, we consider that our counter -claim, assessed in light of the required elements of

the crime of genocide, is much stronger than the claim submitted by Croatia. The scale of the

violence in Operation Storm, the number of the victims in a short period of time and under limited - 69 -

opportunities on the side of the perpetrators , as well as the consequences upon the life of the

attacked group cannot be compared when any of the massive crimes described by the Applicant ’s

claim which covered the time period of five years is set side by side.

5. The size of the Serb ethnic group in Croatia has shrunk enormously since 1991. If

President Tudjman had his way, it would have disappeared entirely . Nothing remotely similar can

be said of the victim group that is the object of Croatia’s claim. Of course, the result is not the only

way of measuring the scale of violence and atrocity. But it cannot be denied that the Serb people in

Croatia now joins the list of other ethnic groups  we do not need to mention them, the examples

are well known to the Members of the Court  who once lived in dynamic historic communities

that barely exist today. The destruction of an ethnic group is a loss not only for the vi ctims

themselves but for all of humanity. Indeed, it is to prevent such tragedies that Raphael Lemkin

proposed, in 1944, the recognition of the crime of genocide. His efforts led to General Assembly

resolution 96 (I) of December 1946 and, two years later, to the adoption of the Convention itself.

6. Mr. President, this concludes our presentation in the first round of these oral proceedings .

I am grateful for your attention and patience.

The PRESIDENT: Thank you very much, Mr. Obradović. Before adjou rning, I give the

floor to two Members of the Court, who have questions. The first one is Judge Cançado Trindade.

You have the floor, Sir, please.

Judge CANÇADO TRINDADE: Thank you, Mr. President.

My questions are addressed to both Parties.

“During the written phase, both Croatia (in its Memorial and in its Reply) and
Serbia (in its Rejoinder) refer to the issue of the disappeared or missing persons to
date. Both again refer to this issue in their oral arguments.

 Have there been any recent initiatives to identify, and to clarify further the fate of

the disappeared persons still missing to date?

 Is there any additional, and more precise updated information that can be
presented to the Court by both Parties on this particular issue of disappeared or
missing persons to date?”

Thank you. - 70 -

The PRESIDENT: Thank you very much, Judge Cançado Trindade. Next I will give the

floor to Judge Bhandari. Judge Bhandari, you have the floor.

Judge BHANDARI: Thank you Mr.President.

The question is put to both Parties.

“Both Parties have made frequent reference in their written pleadings to the
findings made by the Gotovina Trial Chamber Judgement of the ICTY.

Since the close of written pleadings in these proceedings, the Appeals Chamber

of the ICTY has set asid e the Judgement of the Trial Chamber in the Gotovina case
and acquitted the accused.

In view of this development, what would be the probative value of the findings
contained in the Trial Judgement?”

Thank you.

The PRESIDENT: Thank you, Judge Bhandari. The written text of these questions will be

sent to the Parties as soon as possible.

In relation to the information sought by Judge Cançado Trindade, it would be appreciated if

the Parties could provide that during the second round of argument. Certainly, I and my colleagues

on the Bench have noted the extensive argument by Serbia on the Gotovina judgements Trial

Chamber judgement and Appeals Chamber judgement. One of them, namely the Appeals Chamber

judgement, was rendered subsequently to the clos ure of written proceedings in this case in

August 2012. So, it is expected that Croatia will address these issues raised by Judge Bhandari

during its first round on Serbia’s counter -claim so that Serbia can subsequently comment, if

needed, on the position of Croatia and certainly Croatia will have the last word on the issue of

counter-claim at the sitting on 1 April.

This brings to an end the first round of oral argument of Serbia. The Court will meet again

on Tuesday 18 March at 10 a.m. to hear Croatia’ s observations on Serbia’s counter-claims. Thank

you.

The Court is adjourned.

The Court rose at 1 p.m.

___________

Document Long Title

Public sitting held on Friday 14 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)

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