Corrigé
Corrected
CR 2014/6
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Tuesday 4 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 mardi 4 mars 2014, à 10 heures, au Palais de la Paix,
sous la présidence de M. Tomka, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide (Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: President Tomka
Vice-President Sepúlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judges ad hoc Vukas
Kreća
Registrar Couvreur
- 3 -
Présents : M. Tomka, président
M. Sepúlveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
MM. Vukas
Kreća, juges ad hoc
M. Couvreur, greffier
- 4 -
The Government of the Republic of Croatia is represented by:
Ms Vesna Crnić-Grotić, Professor of International Law, University of Rijeka,
as Agent;
H.E. Ms AndrejaMetelko-Zgombić, Ambassador, Director General for EU Law, International Law
and Consular Affairs, Ministry of Foreign and European Affairs, Zagreb,
Ms Jana Špero, Head of Sector, Ministry of Justice, Zagreb,
Mr. Davorin Lapaš, Professor of International Law, University of Zagreb,
as Co-Agents;
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. PhilippeSands, Q.C., Professor of La w, University College London, Barrister, Matrix
Chambers, London,
Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Professorial Lecturer in Law,
Yale Law School, New Haven,
Mr. Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,
Ms Maja Seršić, Professor of International Law, University of Zagreb,
Ms Kate Cook, Barrister, Matrix Chambers, London
Ms Anjolie Singh, Member of the Indian Bar, Delhi,
Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London
as Counsel and Advocates;
Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,
Ms Helen Law, Barrister, Matrix Chambers, London
Mr. Edward Craven, Barrister, Matrix Chambers, London,
as Counsel;
H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,
H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the Kingdom of the
Netherlands, The Hague,
as Members of the Delegation; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
Mme Vesna Crnić-Grotić, professeur de droit international à l’Université de Rijeka,
comme agent ;
S. Exc. Mme Andreja Metelko -Zgombić, ambassadeur, directeur général de la division de droit
communautaire et international et des affaires consulaires du ministère des aff aires 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 d e droit international à l’Université 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. Damaška, 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, University 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’h omme 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 Chambe rs, 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. c andidate (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 University) ; juge au tribunal
de district de Sofia (Bulgarie),
M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,
M. Igor Olujić, avocat, Belgrade,
M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,
M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),
M. Georgios Andriotis, LL.M. (Université de Leyde),
comme conseillers. - 10 -
The PRESIDENT: Good morning. Please be seated. The sitting is now open. The Court
meets this morning to hear the continuation of Croatia’s first round of oral argument on its own
claims. I invite Professor Philippe Sands to continue his presentation of the Genocide Convention.
You have the floor, Sir.
Mr. SANDS:
THE G ENOCIDE C ONVENTION
(CONTINUED )
1. Mr. President, thank you, Members of the Court, thank you. Y esterday morning I
introduced some background to the Convention. Today I am going to address the specific
requirements that have to be established to prove that a genocide has been committed, within the
meaning of the Convention. Before doing so, may I respond to your kind invitation, yesterday at
close of play, with regard to the identity of the French delegate who spoke to the definition of the
crime and the requisite number of victims. [Screen on] We have been asked to offer French
versions of texts, and of course we will try to do that : what the delegate said, in French, on the
afternoon of 13 October 1948, at the Palais de Chaillot in Paris, was that “le crime de génocide
existe à partir du moment où un individu est atteint par des actes de génocids. Si le mobile du
crime existe, il y a génocide même si un seul individu est atteint .” Both versions are in your folder,
at tab 6, and on the screen. My written text in fact, had the correct letters that constituted his name,
but somehow the order of t he letters got jumbled up the “u” decided to take a little journey, a
jump over the “m” and the “o”! I was of course , as you spotted, referring to Mr. Chaumont, and I
am very grateful to you for that correction and for allowingus to set the letters straightI also
believe that the individual concerned proceeded to have a very distinguished career as an academic
in France. [Screen off]
2. The Convention’s text reflects the view of the drafters that States, as well as inuals,
may perpetrate a genocide and may be internationally responsible for acts of genocide. By
allowing for the responsibility of the State, the drafters recognized that this crime, where it
occurred, would not necessarily be limited to the role and responsibility of any individual. - 11 -
3. It is important too to recall that the crime emerged in conventional form before there was
any conventional “crimes against humanity”. That was the situation in 1951, when the Court gave
its Advisory Opinion emphasiz ing the Convention’s “special” and important purpose 1, noting
2
rightly that it “was manifestly adopted for a purely humanitarian and civilizing purpose” , to
endorse “the most elementary principles of morality” 3.
4. This context is not without significance in approaching the interpretation of the
Convention. The tendency of some to claim wrongly in our submission that “genocide”
should somehow be seen as “the crime of crimes” is taken to imply a restrictive approach to its
interpretation: make sure, these views would say, it governs only the most occasional, exceptional
and appalling of horrors, be careful, or you will devalue the currency, you will diminish the stigma.
But there is a converse danger also: apply it too sparingly and you will make the Convention a
complete irrelevance. The consequence of that approach was plain to see after the Judgment of this
Court in the Bosnia case, which treated as a triumph the Judgment of the Court . “Serbia is
4
innocent!”, boasted a headline in the Belgrade tabloid Kurir, the day after this Court’s Judgment .
In light of that approach, it seemed that to be condemned for “crimes against humanity” is seen as
something of a vindication, getting off the hook.
5. The correct approach, we say, is to interpret and apply the Convention in accordance with
the normal rules of treaty interpretation, as a free- standing treaty, not as an instrument that is said
to stand at the apex of a legal order so that this Court should somehow treat it with kid gloves, as it
sits up high on some unhappy pedestal, or to impose a restrictive interpretation. The reality is
and should be as the ICTY Trial Chamber put it when it referred to genocide as one of the most
“egregious manifestations” of crimes against humanity 5, and “a species of crimes against
6
humanity” . In this regard, my colleague Keir Starmer, who you will have noted has been
1
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23.
2
Ibid.
3Ibid.
4“Nedužni!”, Kurir, 27 Feb. 2007: http://arhiva.kurir-info.rs/arhiva/2007/februar/27/V-08-27022007.shtml.
5
Prosecutor v. Tadić, Trial Chamber Judgement, Case No. IT-94-1-T, Opinion and Judgement of 7 May 1997,
paras. 622, 655.
6Prosecutor v. Stakić, Trial Chamber, Case No. IT -97-24-T, Decision on Rule 98 Bis Motion for Judgement of
Acquittal, 31 Oct. 2002, para. 26. - 12 -
honoured between the time the delegation list was transmitted to the Registrar and his appearance
before the Court, although we do not think that the two events were connected, will have more to
say, in due course, about the approach taken by the ICTY P rosecutor to the crime of genocide: the
fact is that in this case you are acting as a court of first instance, in the sense that the judges of the
ICTY have never been asked to expressed a view as to whether the facts in evidence before you, do
or do not, constitute the crime of genocide. That is the situation in which you find yourself.
III. The elements of the crime of genocide
(a) General definition, Article II
6. So, let us turn to the elements of the crime of genocide. They are set out of course in
Article II of the Convention, which for reference is at the very first tab of your judges’ folder.
Genocide comprises two distinct elements: the physical element, may be said the actus reus, and
the mental element, the mens rea.
7. The actus reus is defined as: [screen on] killing members of the group (Article II (a));
causing serious bodily or mental harm to members of the group (Article II (b)); deliberately
inflicting on the group conditions of life calculated to bring about its physical destruction in whole
or in part (Article II (c)); imposing measures intended to prevent births within the group
(Article II (d)); and forcibly transf erring children of the group to another group (Article II (e)).
The actus reus is established if any one of these acts is carried out. The crime of genocide is made
out if any one of these prohibited acts is accompanied by the necessary genocidal intent that is,
the “intent to destroy, in whole or in part , a national, ethnical, racial or religious group, as such”.
True to Rafael Lemkin’s ideals, both the mental and physical elements of the crime are broadly
worded. [Screen off]
(b) The actus reus
8. Start with the actus reus. I t has been, we say, very clearly established in Croatia’s
Memorial and Reply that prohibited acts falling within the scope of, amongst others, Articles II (a), - 13 -
II (b) and II (c), have been carried out by the Respondent or on it s behalf or under its direction or
7
control. The Parties are in agreement that Article II (e) does not apply in these proceedings .
9. We have noted that the Respondent has referred to “actus reus” in just three paragraphs of
its Rejoinder ; that is a te lling brevity. We have also noted that Serbia concedes that some of the
9
acts invoked by the Applicant “could constitute the actus reus of genocide” . Indeed, Serbia
acknowledges that acts referred to by Croatia as it puts it “[t]heoretically . . . might
10
correspond to the actus reus of genocide” . We take these comments as a concession: there is
nothing theoretical about what happened on the territory of Croatia from 1991, or the acts that lie
so unhappily before you and on which you will he ar more this week . The acts did or did not
constitute the actus reus in our submissions they very plainly did and there is nothing
theoretical about the characteri zation of the terrible acts of killing, rap ing, targeting, desecration
amongst others, that occurred. Nor is there anything in the text of the Convention to indicate the
need for a particular number of individual acts to have occurred 11. The wording of Article II (a)
and II (b), for example, refers, on its face, to individual members of the group, not the group as a
whole this was really Mr. Chaumont’s point . I have already referred you to the negotiating
history, which makes clear, on his view and on the views of many, that even a single act of killing
can give rise to the crime of genoci de, provided of course that there is the requisite genocidal
intent.
10. Over the course of tomorrow and Wednesday, Croatia will set out in considerable detail
the factual basis of its claim, which establishes the actus reus of genocide. As you will he ar, the
evidence of a widespread campaign of destruction carried out by the Respondent or on its behalf
or with its support comprising many acts against many individual members of the group is as
clear as it is incontrovertible. It is surely not even arguable now, in light of all of the evidence and
all of the factual findings of the ICTY, that the necessary actus reushas not been proven already.
7Reply of Croatia (RC), para. 8.26.
8
Rejoinder of Serbia (RS), paras. 256, 332 and 381.
9RS, para. 256.
10RS, para. 381.
11
RS, para. 332. - 14 -
(c) Mens rea: specific intent
11. This is the real issue in this case : the question of the intent behind the acts. It is the
major point of disagreement between the Parties. In the Bosnia case this Court referred to
“genocidal intent” as specific intent, dolus specialis 12. It is this specific intent that distinguishes
genocide from other international crimes, including “crimes against humanity”. There must be an
intention on behalf of the perpetrator to destroy in whole or in part a protected group: and I
emphasize these words, “in part”, as the text makes clear there nee d not be an intent to destroy
every member of the group, or even a majority of members of the group. One issue then is how to
identify the “intent” of those who carried out the acts, whether by or on behalf of the State, or in
circumstances in which the S tate turned a blind eye or otherwise failed to prevent the acts from
occurring.
12. In our submission, 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 dire ction or control, actually
13
was . As Judge Bennouna noted in the BosniaJudgment (and as Croatia advanced in its Memorial
and Reply and the Respondent accepted in its Counter -Memorial) States tend not to go around
14
proclaiming an intention to destroy a part of a particular group : individuals may do that, and the
State with which they are associated may then, in differing ways, assist or adopt that objective, by
action or inaction. Intent can be then inferred from a pattern of behaviour, and that is surely not
now in dispute. On this point, we have noted that last July , July 2013, six years after the Court
gave judgment in the Bosnia case, the ICTY Appeals Chamber reinstated genocide charges against
Mr. Karadžić for genocidal acts committed in many towns and municipalities throughout Bosnia,
other than Srebrenica 15. In those proceedings the ICTY Prosecutor alleges that Mr. Karadžić and
his co-conspirators in a joint criminal enterprise (including inter alia Messrs. Milošević, Arkan and
Seselj, who are involved in these proceedings too) had the mens rea to commit genocide not only
against Bosnian Muslims but also against Bosnian Croats, and that they had that mens rea from
12
Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J. Reports 2007 (I),p. 121, para. 187; hereafterBosnia.
13Schabas, W., Genocide in International Law: The Crime of Crimes , (Cambridge University Press, Second
Edition, 2009), hereafter Schabas, p. 518.
14Bosnia, p. 362; Memorial of Croatia (MC), para. 7 .34; RC, para. 8.7; Counter -Memorial of Serbia (CMS),
para. 48.
15
Prosecutor v. Radovan Karadžić, Case No. IT-9S-SI18-AR98bis.l, Judgement, 11 July 2013, para. 115. - 15 -
October 1991; they had it to implement their plan , on the Prosecutor’s account, to establish a
Greater Serbia. It would be curious in the extreme to conclude that these three men had the
requisite intent to destroy a part of a group on one side of the border, but they did not have it on the
other side of the border ; or that they had it against Bosnian Croats on that side of the border but
not against Croatian Croats on this side of the border . This would be all the more peculiar if one
considers that these three co -conspirators, as you heard yesterday, did not believe a border existe d
at all between the relevant parts of Bosnia, Serbia and Croatia ; it was all just Greater Serbia in
their view. Sir Keir Starmer will come back to this in due course.
13. What must be intended? Croatia’s approach in these proceedings has been consist ent:
the requisite intent, which is to destroy a group in whole or in part , is not to be equated with the
intent to physically destroy the entirety of the relevant group, but rather it is to stop it from
16
functioning as a unit . This is plain from the Convention’s travaux preparatoires, for example the
inclusion of forcible transfer s as a form of the actus reus of genocide. Yet Serbia asserts for
example at paragraph 322 of its Rejoinder that anything short of total physical destruction of the
relevant group will not be genocidal. There is simply no authority for that proposition, which
conflates the actus reus with mens rea 17. It is not what the Convention says, and it is not what the
18
drafters intended .
14. The Court has addressed this aspect in its Judgment in the Bosnia case. Addressing the
forcible removal or deportation of members of the protected group, the Court concluded, at
paragraph 190 of its Judgment 19, that: [screen on] “Neither the intent, as a matter of policy, to
render an area ‘ethnically homogeneous’, nor the operations that may be carried out to implement
such policy, can as such be designated as genocide . . .”, and is “ not necessarily equivalent to
destruction of that group” 20.
15. The use of the words “as such” [ next graphic] denotes that a policy aimed at driving
people from their homes to make an area ethnically homogeneous does not directly, in and of itself,
16See MC, para. 7.44; RC, para. 8.9.
17
RS, para. 332; emphasis added.
18RC, para. 8.17.
19Bosnia, pp. 122-123, para. 190.
20
Ibid., p. 123; emphasis added. - 16 -
equate with a genocidal intent. That is not the central point in this case because the Court’s
formulation, carefully chosen words, recognizes that evidence of forcible removal and deportation
can be taken into account in identifying the existence of a genocidal intent. In other words, forcible
removal and deportation accompanied by the acts listed in Article II, and coupled with an intent to
destroy a part of the group, will be a genocidal act. Croatia’s position is not that such acts alone
and per se prove genocidal intent: it is those acts coupled with others, as we have explained in the
written pleadings, that matter.
16. The Court’s use of the words “not necessarily” [next graphic] makes clear that
systematic deportation could contribute to acts of genocide. Serbia does not appear to disagree. In
its Counter-Memorial it explains that “systematic expulsion f rom homes” can constitute genocide
21
“provided such action is carried out with the necessary specific intent” . [Screen off] There is no
dispute between the Parties here.
17. There is no hard and fast distinction between the removal of a population or ethn ic
cleansing and genocide, as scholars recognize, beyond the element of intent. Professor Schabas
says the two , ethnic cleansing and genocide , are divided by what he calls a “fuzzy rather than a
22
bright line” . And to make that point, he asserts that German policy only became genocidal after
June 1941 2. I am going to offer no comment on this suggestion, but it was plainly not one that
was shared by Rafael Lemkin: read Chapter IX of his book, a chapter entitled “Genocide”, and you
will see that it is replete with references to actions taken well before June 1941, and he
characterized them as genocidal in intent. Such early actions may also give rise to the inference
that a genocidal intent exists. Vice -President Al-Khasawneh made that point in his opinion in the
Bosnia case, at paragraph 41, noting that a “pattern of conduct known as ethnic cleansing may be
relied on as evidence of the mens rea of genocide”, and he cited the decision of the ICTY Appeals
Chamber in the Krstić case 2.
21
CMS, para. 84 and RS, para. 333.
22Schabas, p. 233.
23Ibid.
24
Bosnia, dissenting opinion of Vice-President Al-Khasawneh, p. 257, para. 41. - 17 -
(d) “In whole or in part”
18. A key element of the mens rea requirement is the intention to destroy the protected group
“in whole or” and these are the crucial words for our purposes “in part”. We have paid very
careful attention to the Judgment of the Court in the Bosnia case, especially in this respect. In that
Judgment the Court identified three factors as being relevant in the determination of whether the
“in part” requirement has been met. First, the Court said the intent must relate to at least a
“substantial part of the particular group” 25. Second, genocidal intent can be made out where there
26
is an intent to “destroy the group within a geographically limited area” . And t hird, it is
appropriate to evaluate the prominence of the persons who are intended to be targeted in relation to
the entire group 27. Croatia notes that the Court emphasized that “substantiality” was, as the Court
28
put it the “essential starting point” .
19. The text of the Convention has no “substantiality” require ment and, as I have explained,
the negotiating history does not indicate that the se words were used. Indeed, the history indicates
that acts intended to be taken against a very small group may be sufficient to trigger the
Convention. From where then did the Court find the word? We have sought to unpack that
conclusion. The answer to th e question is of course found at paragraph 198 of this Court’s
Judgmentin that case, which says:
[Screen on]
“That requirement of substantiality is supported by consistent rulings of the
ICTY and the International Criminal Tribunal for Rwanda (ICTR) and by the
Commentary of the ILC to its Articles in the draft Code of Crimes against the Peace
and Security of Mank ind (e.g. Krstić, IT-98-33-A, Appeals Chamber Judgment,
19 April 2004, paras. 8- 11 and the cases of Kayishema, Byilishema, and Semanza
there referred to; and Yearbook of the International Law Commission,29996, Vol. II,
Part Two, p. 45, para. 8 of the Commentary to Article 17).” [Screen off]
20. In essence, the Court invokes two sources: (a) judicial rulings, namely the “consistent
rulings” of the ICTY ( and specifically the Appeals Chamber decision in the case of Krystić ) and,
before the ICTR, the cases of Kayishema, Byilishema, and Semanza; and secondly the views of the
25Bosnia, p. 126, para. 198.
26
Ibid., p. 126, para. 199.
27Ibid., p. 127, para. 200.
28Ibid., see also p. 127, para. 201.
29
Bosnia, p. 126, para. 198. - 18 -
International Law Commission, as reflected in paragraph 8 of the Commentary to Article 17 of the
ILC’s draft Code of Crimes against the Peace and Security of Mankind.
21. We have gone back to look closely at each of these sources, to ascertain exactly how the
Court came to identify a “substantiality” requirement, and also to understand what it means.
Taking these sources in something of a chronological order, it seems that many r oads lead back to
the views expressed in July 1985 by Mr. Benjamin Whitaker, Special Rapporteur to the United
Nations Sub-Commission on Prevention of Discrimination and Minorities. His report is very
instructive. He recognized in that report that genocide need not involve the destruction of a whole
group and that it could occur with “an attack affecting half of a small group” as well as “a massacre
which affects only one tenth of a larger group”. He set out competing views on this issue. On one
view, as he told us 30: [Screen on]
“‘In part’ would seem to describe a reasonably significant number, relative to
the total of a group as a whole, or else a significant section of a group such as its
leadership.”
And he then set out another view: [Next graphic]
“On the other hand, it has been urged that, given the mens rea of such intent, the
Convention should be interpreted as applying to cases of ‘individual genocide’, where
a single person was a victim of any of such acts, though strictly even such a
minimalist interpretation requires evidence of more tha31one victim, since the plural is
used consistently throughout Article II (a) to (e).”
And then he set out his own view, which is this: [Next graphic]
“In order that the gravity of the concept of genocide s hould not be devalued or
diluted by the inflation of cases as a result of too broad an interpretation, the present
Special Rapporteur suggests that considerations of both of proportionate scale and of
total numbers are relevant.” 32
22. His report did not r efer to the negotiating history, or to any requirement of
“substantiality”, at least not in express terms. His qualifier , his chosen formulation, was “a
reasonably significant number”, one that takes account of considerations of “proportionate scale
and total numbers”. On Mr. Whitaker’s approach, a genocide could occur where the intention is to
30
Report of the United Nations Sub-Commission on Prevention of Discrimination and Minorities,
E/CN.4/Sub.2/1985/6, 2 July 1985, para. 29.
31Ibid.
32
Ibid. - 19 -
destroy just a small number of individuals who form part of a small group, whether by reason of
locality or total numbers. [Screen off]
23. The word “substantial” seems to have crept into an international text for the first time a
decade later, in 1996. It did so in the ILC’s C ommentary to Article 17 of the draft Code of Crimes
against the Peace and Security of Mankind, which reproduces Article II of the Convention. [Screen
on] The commentary, which is not troubled by any footnotes in this part, indicates that:
“It is not necessary to intend to achieve the complete annihilation of a group
from every corner of the globe. None the less the crime by its very nature requires the
intention to destroy at least a substantial part of a particular group.” 33
The ILC’s Commentary, prepared by Mr. Tian, offered no authority whatsoever for the choice of
the word “substantial”, and expressed no view as to elements of proporti onality or total numbers.
On its face it was not inconsistent with Mr. Whitaker’s approach, to the effect that a genocide could
occur where the intention was to destroy a part of a group living in a geographically defined area,
whether a region, or a town, or a village, or something even smaller. [Screen off]
24. One of the first decisions of the ICTR to address this matter was the Trial Chamber in the
Kayishema case, in May 1999. It looked at the report of Mr. Whittaker and the ILC Commentary
for guidance, and concluded that the words “ ‘in part’ requires the intention to destroy a
considerable number of individuals who are part of the group” 3.
25. This approach was then “adopted” by the ICTR in the Bagilishema case in 2001 (the
Court got the name slightly wrong in the Judgment, we noted). And in that case the Trial Chamber
referred to the Kayishema decision and stated:
“As for the meaning of the terms ‘ in whole or in part ’, the Chamber . . .
considers35hat the intention to destroy must target at least a substantial part of the
group.”
So in this way, the word “substantial” somehow became a part of the ICTR case law ; it was the
inadvertent consequence of an ILC Commentary drafted without explanation or footnote or
authority in the relevant part. That is the wonderful world of international law in which we live .
33Yearbook of the International Law Commission, 1996,Vol. II, Part Two, p. 45, para. 8 of the Commentary to
Article 17; emphasis added.
34Prosecutor v. Kayishema and Ruzindana, Trial Chamber Judgement, Case No. ICTR-95- 1-A (Judgement of
1 June 2001), para. 97.
35
Prosecutor v. Bagilishema, Trial Chamber Judgement, Case ICTR -95-1A-T (Judgement of 7 June 2001),
para. 64. - 20 -
But the key point is this. The conclusion is entirely consistent with the intent to target a relatively
small group, or a sub-group within a larger group.
26. What happened next? In 2003, in the Semanza case, the ICTR Trial Chamber cited only
Baglishema in support of its findings:
“Although there is no numeric threshold of victims necessary to establish
genocide, the Prosecutor must prove beyo nd a reasonable doubt that the perpetrator
acted with the intent to destroy the group as such, in whole or in part. The intention to
36
destroy must be, at least, to destroy a substantial part of the group.”
27. At around this time, matters migrated to the ICTY. In 2001 the Trial Chamber in the
Krstić case surveyed the relevant academic literature after the Convention was adopted. The
Chamber noted that the Genocide Convention itself provided “no indication of what constitutes
intent to destroy ‘in part’ ”, and that the preparatory work in the view of that Chamber “offers few
indications either” in fact, we beg to disagree, as we have shown, the preparatory work does
37
offer indications in favour of a relatively low threshold . The Trial Chamber noted, however, that
in the draft Convention submitted by the U nited Nations Secretary-General he observed that “the
systematic destruction even of a fraction of a group of human beings constitutes an exceptionally
heinous crime”, and the Secretary-General referenced two early commentaries on the Genocide
Convention: that of Nehemiah Robinson who expressed the view that the intent to destroy could
pertain to only a region or even a local community if the number of persons targe ted within that
region or local community was substantial, and another commentary by Pieter Drost remarked that
any systematic destruction of even a fraction of a protected group would constitute genocide.
28. The Trial Chamber looked at those commentaries and noted that: “A somewhat stricter
interpretation has prevailed i n more recent times” 3. But i t concluded that the killing of all
members of a group within a small geographical area “would qualify as genocide if carried out with
the intent to destroy the part of the group as such located in this small geographical area”, even if
the numbers killed were even smaller. The test according to the Trial Chamber was whether it was
36Prosecutor v. Semanza, Trial Chamber Judgement, Case ICTR -97-20-T, (Judgement of 15 May 2003)
para. 316.
37Prosecutor v. Krstić, Trial Chamber Judgement, Case No. IT-93-33-T, (Judgement of 2 August 2001), hereafter
Krstić, Trial Chamber, para. 585.
38
Ibid., para. 586. - 21 -
intended “to annihilate the group as a distinct entity in the geographic area at issue”. This was
consonant with the object and purpose of the Convention.
29. For its part, the Appeal s Chamber in Krsti ć concluded that the intent requirement of
genocide under Article 4 of the Statute will be satisfied “where evidence shows that the alleged
perpetrator intended to dest roy at least a substantial part of the protected group” 39. To reach that
conclusion the Appeals Chamber invoked with approval all the authorities and reports I have
mentioned, including that prepared by Mr. Whittaker and the judgment in the Kayishema case,
neither of whom use d the term “substantial”. The Appeal s Chamber then cited with approval the
article by Nehemiah Robinson, and in particular the page where he dealt with intent and numbers.
[Screen on] It is therefore appropriate to remind this Court what Mr. Robinson wrote back in 1960:
“the intent to destroy a multitude of persons of the same group because of their
belonging to this group, must be classified as Genocide even if these persons
constitute only part of a group either within a country or within a region or within a
single community, provided the number is substantial” . [Screen off]
A similar view was adopted by Pieter Drost, as I have mentioned, who confirmed that the
Convention in his view applies to instances where a “fraction” of a larger group is intended to be
targeted exclusively because of their membership to the group. As Drost put it: [Screen on]
“acts perpetrated with the intended purpose to destroy various members of the same
group are to be classified as genocidal crimes although the victims amount to only a
small part of the entire group present within the national, regional or local
community” . [Screen off]
30. The Appeals Chamber in Krstić proceeded on the basis that the “numeric size of the
42
targeted part of the group is the necessary and important starting point” . It noted and this in
our view is equally significant that “[t]he intent to destroy formed by a perpetrator of genocide
43
will always be limited by the opportunity presented to him” . Those are crucial words, because
they indicate that this factor must inform the analysis of whether the targeted group is, in terms of
proportionality and numbers, reasonably significant, considerable or substantial , having regards to
39
Prosecutor v. Krstić, Appeals Chamber Judgement, Case No. IT -98-33-T, (Judgement of 19 April 2004),
hereafter Krstić, Appeals Chamber, para. 12.
40Nehemia Robinson, The Genocide Convention: A Commentary (Institute of Jewish Affairs, World Jewish
Congress, 1960), p. 63.
41Pieter Drost, The Crime of State, Book II, Genocide (Sythoff, Leiden, 1959) p. 85.
42
Krstić, Appeals Chamber, para. 12.
43Ibid., para. 13. - 22 -
the opportunity actual ly presented. The issue of opportunity is one tha t Sir Keir Starmer will
develop in his submissions.
31. Mr. President, Members of the Court, with this short journey we can see that genocide, as
conceived by the drafters of the Convention, by those who have commented on it, and by those
who have been called upon to interpret it as a part of their judicial function, does not require an
intent to destroy an entire group, wherever it may be located. The intention is connected to the
location of an area, to the group that is there located, and to the opportunity. The location can be a
state, or a region, or a town, or a village, or a hamlet, or even something smaller. The point is that
an act of genocide can be limited to an intention formed in relation to a particular distinct and
geographically limited area.
32. This is the approach that captures theideals, and the ideas, and the intentions of men and
women like Rafael Lemkin and the states that drafted the Convention. Numbers are important in a
certain sense, but to seek to characterize an act as genocidal or not is not an exercise that can occur
in abstracto. The numbers have to be taken in their context. The number actually targeted, the
number available to be targeted, these are the matters that inform the evidence of intent to commit
genocide.
33. The Krstić case concerned killings in Srebrenica. The ICTY Trial Chamber focused on
the fact that “the VRS forces sought to eliminate all of the Bosnian Muslims in Srebrenica as a
44
community” . It did not rule that it was necessary to show a “substantial” number of killings; it
was sufficient that the evidence showed an intent to eliminate Bosnian Muslims as a community in
a geographically restricted area. The killing of men, which they ch aracterized as a “selective
destruction of the group”, would have “a lasting impact upon the entire group” 45 in that area. In
our respectful submission, the approach of the Trial Chamber was correct.
34. There has been ample support for this approach in the literature, and strong criticism of
alternative approaches. It has been said that the “substantiality” requirement, if applied the wrong
way, would undermine the Convention, by failing to provide adequ ate protection for groups,
subgroups, and even microgroups. One commentator, writing back in 2002, bemoaned efforts at
4Krstić, Trial Chamber, para. 594; emphasis added.
4Ibid. 595. - 23 -
the ICTY to establish a principle that that the crime only exists when very large numbers of people
have been killed. “[N]either the pl ain language nor the purpose of the statute”, that commentator
wrote, “supports any such quantitative re quirement in the intent element ” . Such an approach
would be
“unworkable and incompatible with the core values established by the Genocide
Convention. The number of victims attributable to a defendant can and should
constitute one evidentiary factor probably a very important factor when a
court infers intent. However, such a number remains merely one factor among
many.” 47
35. Mr. President, this Court is the guardian of the Convention. The words “in part” are to
be interpreted in accordance with their ordinary meaning, having regard to the object and purpose
of the Convention. The negotiating history shows that if the drafters intended a qualifier to be read
into the Convention, it was only in the sense that the word would inform the context in which the
intent was formed what is the group targeted, what is the number in that group, and what is the
opportunity? In our submission, the intent to destroy a part of a group means a group within a
region, or a subregion, or a community, provided the number within that group is reasonably
significant, or considerable, or substantial.
36. This approach is supported by the plain meaning of Article II and the negotiating history.
It meets the object and purpose of the Convention. For the purposes of this case, what it means is
that this Court must begin by identifying the group that is targeted, in each particular locality. The
matter is going to be addressed in some detail in the speeches to come. Establishing a different
approach, or a higher threshold, consigns the Convention to irrelevance. More importantly, it will
defeat its object and purpose, which is to offer genuine protection to individuals who form a part of
an ethnic, national or r eligious community or group. We live i n a globalizing, peripatetic world,
one in which small groups of such a kind spring up in a multitude of locations around our planet,
and this makes the Convention in this regard more important than it has everbeen before.
4Alonzo-Maizlish, D., “In Whole or In Part: Group Rights, the Intent Element of Genocide and the ‘Qualitative
Criterion’”, New York University Law Review, Vol. 77 (Nov. 2002) 1369, p. 1385.
47
Ibid. p. 1397. - 24 -
IV. The obligation to prevent and punish
37. I turn now to obligations to prevent and punish . T he central obligation imposed on
States by the Convention is principally set out in Article I of the Con vention, and referred to in
Articles IV, V, VI, VII and VIII. Article I of the Convention provides that [Screen on]
“The Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law w hich they undertake to
prevent and to punish.” (Emphasis added.) [Screen off]
38. During the negotiations on the final text of the Convention, a Belgian representative
argued that not to include this more onerous obligation would render the Convention meaningless,
and constitute mere repetition of resolution 96 (I). The Belgian representative explained that “since
the fundamental purpose of a convention was to create an obligation, it was preferable that the
undertaking to prevent and suppress the crime of genocide which appeared at the end of the
48
preamble, should constitute the text of article I of the convention” .
39. This provision underscores the collective responsibility of the State both before and after
the fact. The Convention is of a dual character and it principally features two obligations: the
State is required to take all steps within its power to prevent genocide and , in addition, to act,
where genocide has occurred, by punishing perpetrators in accordance with the terms of the
49
Convention .
(a) Obligation to prevent
40. Beginning with the obligation to prevent, the Court in Bosnia rightly described this as a
crime of due diligence, one of conduct rather than of result 5. The question that falls to be
answered is this: did the respondent State, did Serbia employ all means reasonably available to it
to prevent genoc ide, whether committed by its own organs or by others which it controlled or
which it was in a position to influence?
48
UN doc. A/C.6/SR.67 (Kaeckenbeeck, Belgium).
49See Bosnia, p. 219, para. 425.
50
Bosnia, p. 221, para. 430. - 25 -
41. In Bosnia, the Court ruled that there were “ [v]arious parameters [that] operate when
51
assessing whether a State has duly discharged th e obligation concerned” . These parameters are
considered in some detail in our Reply. Today I will simply emphasize a number of key factors 52.
42. The first is the “capacity of the State to influence effectively the actions of persons likely
to commit, or already committing, genocide” 53. The question to be answered in this case is
whether Serbia not only failed to prevent its own forces from acting genocidally, but whether,
while acting in co-operation with many other groups in operation, it had the capa city to “influence
effectively” those groups that were already active on the territory of Croatia. We have no doubt
that the military capabilities of the JNA far outweighed th ose of the paramilitary groups 54. As the
ICTY ruled in Mrkšić, the JNA had the “ military might to enforce” its effective command and
control over “volunteer or paramilitary units fighting in the Serb cause” 55. That is a finding of fact.
43. Second, the duty to take preventative measures arises at the moment the State becomes
aware (or should have become aware) that there exists a serious risk of genocide being or will
56
be committed . In this case, when did the Respondent know, or should have known, that there
was a serious risk that genocide would be committed or was being committed against Croats?
The evidence advanced by Croatia reveals that at the very least, from 13 October 1991, the JNA
leadership and the political leadership of Serbia were aware — in explicit terms — of genocidal
activities; for example, the Tigers of Ž eljko Ražnatović, known as Arkan, a paramilitary group.
[Screen on] A JNA military intelligence report of 13 October 1991, set out at Annex 63 of the
Reply, states that in “the greater area of Vukovar [which you saw much yesterday] , volunteer
troops under the command of Arkan . . . are committing uncontrolled genocide and various acts of
terrorism”. That is in black and white, in a military intelligence report of the JNA. It further notes
that the Commander of the Serbian TO, who was also the Assistant M inister of Defence, has been
51Bosnia, p. 221, para. 430.
52
RC, para. 9.85.
53Ibid.
54MC, para. 8.63.
55
Prosecutor v. Mrkšić, Trial Chamber Judgement, Case No. IT-95-13/1-T, (Judgement of 27 Sep. 2007),
para. 89; set out in detail in RC, paras 9.74 and 9.87.
56Bosnia, para. 431. - 26 -
57
informed . As you will hear in due course, other military intelligence reports confirmed
knowledge on the part of the JNA of genocidal activities taking place then and there. [Screen off]
Furthermore, as Ms Law show ed yesterday, the serious risk that paramilitary groups commanded
by Šešelj, Arkan and others would commit acts of genocide was apparent at a much earlier stage
even than that. The extremist rhetoric and hate speech used by these two individuals and others,
both before and during the conflict, indicated that during th at conflict in Croatia, ethnic Croats,
consistently denigrated as Ustasha and denied the right to live in Greater Serbia, would be at
serious risk of destruction from acts of genocide.
44. Third factor to be taken into account: the Court, this Court, in Bosnia, stressed the
difference between complicity and the obligation to prevent. In order to establish complicity there
has to be a positive act, whereas the obligation to prevent comprises the failure to implement a
plan 58. The obligation to prevent does not require full knowledge of the facts but instead merely
requires proof that the State should have been aware of a serious danger that acts of genocide
would be committed 59. You have seen the document for yourselves; it cannot be said that Serbia
was not aware.
45. In their separate opinions in that Judgment, Judges Keith and Bennouna voiced their
disagreement with the Court’s finding that Serbia was not complicit in the commission of genocide.
Judge Bennouna explained that: [Screen on]
“it is my view that all the conditions were met to justify a finding by the Court that the
FRY was responsible for com60icity with the Republika Srpska and its army in
genocide at Srebrenica” . [Screen off]
Both judges advocated that the requisite standard for guilt in complicity needed clarification from
the Court. And we agree. Both argue that the test is whether the accused has knowledge of the
perpetrators’ intent and continues to assist the perpetrato r. Judge Keith relied upon the view of
Judge Shahabudeen, expressed in his dissent in the Krstić case, to the effect that “The necessary
intent of the aider and abettor is the intent to provide the means by which the perpetrator may
57
See RC, para. 9.86.
58Bosnia, p. 222, para. 432.
59Ibid.
60
Bosnia, declaration of Judge Bennouna, p. 360. - 27 -
61
realize his own intent to commit genocide.” These sentiments were echoed by Judge Bennouna:
[Screen on]
“It is when aid and assistance are furnished in full knowledge of the recipient’s
genocidal intent that they constitute complicity, thus being distinguishable from a
violation of the obligation of preventio62 in respect of which all that is required is an
awareness of the risk of genocide.” [Screen off]
(b) Obligation to punish
46. I turn to the obligation to punish on which I can be brief because more will be said in due
course. Article IV of the Convention requires the r espondent State to punish the acts of persons
within its jurisdiction who are responsible for genocide. This has not happened in Serbia, as we
will show.
V. Conspiracy, incitement, attempt and complicity
47. I turn now to conspiracy and other related matters. Article s III (b), (c), (d) and (e) of the
Convention provide for the punishment of four other categories of acts that do not amount to
genocide of themselves. Croatia’s primary argument is that acts constituting genocide occurred on
the territory of Croatia, and that Serbia is responsible for those acts, and for failing to prevent
genocide. The four further categories referred to in Article III are nevertheless a full part of
Croatia’s case.
(a) Complicity
48. Article III (e) of the Convention sets out the offence of complicity. As is visible from
our written pleadings, and as I have already explained, this provision is a central part of Croatia’s
case. The actus reus for complicity is broad and can be taken to include the provision of means to
enable or facilitate the commission of the crime 63. This was the subject of a lively debate within
the Court in the Bosnia case, and a range of views were expressed. We have noted in particular the
61Bosnia, declaration of Judge Keith, p. 354, para. 6.
62Bosnia, declaration of Judge Bennouna, p. 363: “In this case the mens rea is the intent on the part of the
accomplice to assist the principal perpetrator where the accomplice has actual or constructive knowledge of the nature of
the crime which the principal is preparing to commit.” (Ibid., p. 361.)
63
Bosnia, p. 216, para. 419. - 28 -
64
views expressed by Judges Bennouna and Keith . There will be no doubt that paramilitary groups
that carried out mass murder and destroyed entire Croatian communities , entire villages, entire
populations, were unleashed by or on behalf of the Respondent. The JNA armed and equipped the
paramilitaries, trained them, and integrated them into their operations 65. The evidence is
unequivocal.
49. Turning to the mens rea required to establish complicity, the Bosnia Judgment does not
elucidate the quality of intent that is required. As I have explained, the facts specific to that case
meant that the Court found it was unnecessary to decide whether specific intent was required 66. As
highlighted by Judge Keith in your Bosnia Judgment, at the ICTY, the Appeals Chamber in Krstić
has held that in establishing complicity or secondary liability, for the mens rea requirement to be
met, the principal perpetrator’s genocidal intent must be established and the accomplice must have
known of that genocidal intent 67. And that standard has been given added authority by the recent
68
judgment in the Sainović case . Once more we would invite the Court to consider that requiring
knowledge as opposed to shar ing intent is the only way of distinguishing complicity from
co-operation 6. In this case it cannot be disputed that the Respondent knew of the genocidal intent
of the paramilitaries. You have seen it for yourselves in black and white. The evidence is crystal
clear.
50. Once again, the definitional elements of this offen ce are not disputed by the Respondent
in the Rejoinder; Serbia explains that its “position concerning this is fairly relaxed since
genocide has not been committed the Respondent cannot be held responsible either for commission
or for complicity” 70. They are in real difficulty if genocide is found on that concession.
64
Para. 45 above.
65This is confirmed by the ICTY findings in the Mrkšićand Martić judgements and elaborated upon in the RC,
paras. 4.113–4.129.
66Bosnia, paras. 422 and 423.
67
Krstić, Appeals Chamber, paras. 138 et seq.
68
Prosecutor v. Sainović et al., Appeals Chamber Judgement, Case No. IT-05-87-A (Judgement of 23 Jan. 2014)
para. 1649.
69For an example of this see Prosecut or v. Ntakirutimana, Appeals Chamber Judgement, Case Nos. ICTR-96-10
and ICTR-96-17-T (Judgement of 13 Dec. 2004) para. 500; declaration of Judge Bennouna in Bosnia (para. 45 above).
70RS, para. 344. - 29 -
(b) Conspiracy
51. I turn to conspiracy, which is an inchoate crime, only relevant in circumstances where
the genocide has not in fact occurred. As we have demonstrated in the Memorial and the Reply,
the travaux of the Convention and the judgment in Musema show that the common law
71
understanding of conspiracy as an inchoate offence has prevailed . However, if Croatia’s claim is
not successful, we invite the Court to consider the question of Serbia’s responsibility on the basis
that individual Serbian leaders, for whom the State bears international responsibility, were party to
a conspiracy to commit genocide. That is elaborated in our written pleadings.
52. While the Court in Bosnia did not define conspiracy to commit genocide, conspiracy
exists where two or more persons have agreed upon a common pla n to commit genocide. The
72
specific intent required is the same as that required for the crime of genocide itself .
(c) Direct and public incitement
53. Direct and public incitement, provided for in Article III (c), is also an inchoate offence
and there is no requirement for the genocide to have actually occurred. The P arties agree on the
definition of this offence it requires “directly provoking the perpetrator(s) to commit
genocide . . .” while also sharing the same specific intent as the principal perpetrator. Yesterday
you heard from Ms Law, who drew your attention to the kind of incitements that were being
publicly expressed well before the terrible events of 1991, in efforts to whip up a frenzy.
(d) Attempt
54. And, finally, attempt. The Parties agree also as to the definitional aspects of the attempt
to commit genocide in Article III (d) of the Convention. Again, this offence is only relevant if
Croatia’s claim that the Respondent is responsible for the crime of genocide were to fail.
VI. Conclusion: The role of the Court under the Convention
55. Mr. President, this concludes my presentation on general aspects of the Genocide
Convention. We appreciate and recognize that it is not the first time that this Court or some of its
7MC, para. 7.77; RC, para. 8.30.
7RC, paras. 8.29-8.31; Prosecutor v. Akayesu, Trial Chamber Judgement, Case No. ICTR-96-4 -T, (Judgement
of 2 Sept. 1998) para. 560; and MC, para. 7.76. - 30 -
Members at least are confronted with issues relating to the i nterpretation of the Convention and its
application. If the present case breaks new ground, as we say it does, it is on the facts, and these
give rise to particular issues in relation to the application of the Convention in these proceedings.
And so it is t o these facts that we now turn, and I invite you to call to the B ar my friend and my
colleague Sir Keir Starmer, who will address issues of evidence and proof.
The PRESIDENT: Thank you very much, Professor Sands. I now invite Sir Keir Starmer to
take the floor. You have the floor, Sir.
Sir Keir STARMER:
EVIDENCE AND ISSUES OF P ROOF
I. Introduction
1. Mr. President, Members of the Court, it is a real honour and privilege to appear before this
Court for the first time.
2. In this speech I will address a number of questions of evidence and issues of proof arising
from the pleadings. Following ProfessorSands, it feels that we are descending from international
principle to the nuts and bolts of proving the case.
3. I will deal very briefly with the burden and standard of proof. These are well established
and the Parties are largely in agreement.
4. I will not deal at all with the skirmishes about the admissibility of certain documentary
evidence. The Parties’ rival arguments are set out in detail in the pleadings3and the Court will not
benefit from my recital of them here.
5. However, I will spend some time dealing with two issues of real importance and
contention between the Parties:
(a) the first is the significance of the ICTY findings which bear on the issue s arising before this
Court; and
73See Counter-Memorial (CMS), paras. 143 -168; RC, paras. 2.34 -2.58 and 2.64Additional Pleading
(APC), paras. 1.30-1.43. - 31 -
(b) the second is the significance of the fact that the ICTY Prosecutor has not indicted a single
accused for the crime of genocide in relation to relevant events in Croatia.
II. Burden and standard of proof
6. So, let me start with the burden of proof. The Court’s approach here is clear 7: the party
seeking to establish any particular fact bears the burden of proving it. There is no contention
between the Parties on that issue. I say no more.
7. This rule is nuanced in this particular case because the Respondent was in both de jure and
de facto control of the territory where the Applicant says the genocidal campaign was planned or,
alternatively, where steps were not taken to prevent it, and the Respondent was in effective control
of the territory where the physical acts of genocide were carried out. In those circumstances, the
Applicant submits that the Court is not only entitled to, but should, draw adverse inferences from
the Respondent’s failure to offer explanati ons and produce evidence in rebuttal of the Applicant’s
claims.
8. So far as the standard of proof is concerned, again the position is clear. The Court must be
“fully convinced” 75 that the crime of genocide has been committed, and that the acts are
attributable to the Respondent.
9. The same standard , of course, applies to the proof of special intent in establishing
genocide. However and I will develop this in later submissions this Court has recognized
that this standard can be met by proof of a pattern of conduct from which inferences can be drawn,
so long as the inferences are sufficiently compelling. In the Bosnia case, the Court held that “for a
pattern of conduct to be accepted as evidence of [genocidal intent], it would have to be such that it
76
could only point to the existence of such intent” . Mr. President and Members of the Court, n o
doubt in such cases, the required standard of proof is met by inferences drawn from a pattern of
conduct. But the Ap plicant notes 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
74
Military and Paramilitary Activities in and against Nicaragua (Nicaragua United States), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101.
75Application of the Convention on the Prevention and Punishment of the C rime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 129, para. 209.
76
Ibid., p. 197, para. 373. - 32 -
where there may be other possible explanations for a pattern of conduct, but nonethele ss the Court
is fully convinced, on the facts of the particular case, that the only proper inference is of genocidal
intent.
10. When it comes to proving a failure to prevent, or to punish, acts of genocide, a different
and lower standard of proof applie s, namely “proof at a high level of certainty appropriate to the
77
seriousness of the allegation” . That variation recognizes the challenges of provi ng a negative,
namely that the State has failed to take all available measures to prevent or punish genocide.
III. The significance of ICTY proceedings
11. So I move, Mr. President, Members of the Court, to the significance of the ICTY
78
findings on the issues arising before this Court. This issue was considered in the Bosnia case ,
where the Court set out a number of important propositions, which the Applicant adopts and
develops in its submissions in this case. I have set them out on screen for ease of reference:
[Screen on]
(a) first, a conviction by the ICTY of an individual for genocide cannot be a prerequisite to a
finding by this Court of State responsibility for violation of the Genocide Convention;
(b) second, no evidential weight is to be accorded to a decision of the ICTY Prosecutor to include a
charge in an indictment, and I will come back to that proposition in a moment when I consider
what evidential weight should be afforded to a decision not to include a charge;
(c) thirdly, findings of fact by the ICTY are likely to be “highly persuasive” and the resulting
79
verdicts and evaluations are also to be given “due weight” ;
(d) and then, fourthly, a greed statements of fact following a guilty plea and resulting sentencing
80
judgments, as in the ICTY cases of Babić and Jokić, are to be given a “certain weight” .
[Screen off]
77
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. 130, para. 210.
78Bosnia, pp. 119-134, paras. 180-224.
79Ibid., p. 134, para. 223.
80
Ibid., p. 134, para. 224. - 33 -
12. These propositions are straightforward, they are important in this case, because as the
Applicant will show in the course of its oral submissions, a number of ICTY judgements are rich in
factual findings that are highly relevant to the present proceedings. The Applicant will refer in
particular to the judgements in Mrkšić 81and Martić ; and the sentencing remarks in Babić . 83
13. Adopting the approach of the Court in the Bosnia case, these findings, made after lengthy
and painstaking assessment of the evidence, are highly persuasive in the determination of the issues
before this Court in this case. In particular, as the Applicant will demonstrate, the findings of the
ICTY, if accepted by this Court, not only make out the actus reus of genocide, but also est ablish
clear patterns of conduct from which a genocidal intent can properly and compellingly be
informed.
14. Against that background, the Applicant submits that it is highly significant that, although
the Respondent seeks to distance itself from the relevant ICTY findings, it does not argue that they
were wrongly arrived at, or that they should be set aside. In those circumstances, it is submitted by
the Applicant, that it is open to this Court, and it is safe for this Court, to proceed on the platform of
factual findings already established by the ICTY.
IV. Lack of ICTY indictment for genocide
15. I turn then to the lack of an ICTY indictment for genocide. I have already identified four
propositions from the Bosnia case which the Applicant adopts. There is a fifth proposition which
the Applicant needs to address.
16. The majority of this Court held that decisions of the ICTY Prosecutor not to include a
charge of genocide in an indictment “may . . . be significant” 84. The implication, it seems, is that
the decision of a prosecutor not to include a charge of genocide in an ICTY indictment may assist
in disproving the existence of the responsibility of a State for acts of genocide.
17. Mr. President, Members of the Court, the Applicant takes issue with this approach. As a
general proposition, a prosecutorial decision not to prosecute should be given little or no probative
81
Case No. IT-95-13/1-T, Judgement, 27 Sep. 2007.
82Case No. IT-95-11-T, Judgement, 12 June 2007.
83Case No. IT-03-72-S, Sentencing Judgement, 29 June 2004.
84
Bosnia, p. 132, para. 217. - 34 -
value in respect of the establishment of facts including intentions or legal conclusion, on
matters of State responsibility. And on the facts of this particular case, the Applicant says no
evidential weight should be placed on the decision of the ICTY Prosecutor not to charge any
identified suspect with the offence of genocide.
18. The Applicant’s det ailed arguments in support of that proposition are set out in the
85
Reply . Here I will distil those arguments into three substantive submissions. Before I do so, I
make the observation that the approach of the ICTY Prosecutor is not markedly different to the
approach of domestic prosecutors in many countries around the world, particularly where the
principles applied are strikingly similar, which is the case, for example, in my own jurisdiction,
where I have some recent experience.
19. Accordingly there is a powerful argument for attaching no more significance to the
exercise of a prosecutor’s discretion to the decisions of the ICTY Prosecutor than would be
attached to domestic prosecutorial decisions in other comparable jurisdictions.
20. I return then to my three substantive submissions, which are as follows:
(a) first, the discretion of any prosecutor, including the ICTY Prosecutor, to bring a particular
charge is very wide. It may be influenced by very many factors — some case-specific; some
not — that militate strongly against attaching any evidential significance to the exercise of this
discretion;
(b) secondly, the decision of an ICTY Prosecutor not to include a charge is not a reviewable
decision. Reasons do not have to be given and, even if given, cannot be tested. Since a
decision to include a particular charge can be tested in the ensuing criminal proceedings, and
indeed the charge can be dismissed and excluded from the indictment if unsupported by the
86
evidence , it is , to say the least,problematic — and some might say illogical — to accord
greater weight to an unreviewable decision not to bring a particular charge than to a reviewable
decision to bring a particular charge;
(c) thirdly, there is a fundamental distinction between individua l criminal responsibility for
particular acts, and the State responsibility for the accumulation of acts by multiple actors.
8Reply (RC), paras. 2.25-2.31.
8See ICTY Statute, Art. 19 (1); ICTY Rules of Procedure and Evidence, Rule 47. - 35 -
21. I develop each of these submissions.
(a) Prosecutorial discretion
22. First, the submission about prosecutorial discretio n. And I start at the beginning of the
process. The ICTY Prosecutor has a wide discretion both in commencing and conducting an
investigation, and in relation to the charges to be included in the indictment. Under Article 16 (1)
of the ICTY Statute, resp onsibility is vested in the ICTY Prosecutor for the investigation and
prosecution of crimes. Under Article 18 (1) of the ICTY Statute, the ICTY Prosecutor may initiate
investigations ex officio or on the basis of information from any source. It is for the prosecutor to
access the available evidence and decide whether there is a sufficient basis to proceed 8.
23. Thus, from the very outset, the ICTY Prosecutor is constrained by the available evidence
at that stage. That will influence any investigation and, in turn, influence any prosecution decision
about the charge. As every prosecutor will appreciate, it is very rare indeed to have all the relevant
information available at the beginning of an investigation and, in very many instances, had
different information been available at the outset, the investigation would have taken a different
course. That is an age-old problem in investigating a prosecuting crime.
24. Since the jurisdiction of the ICTY is over individuals, it is also inevitable that any
investigation started by the ICTY Prosecutor must focus on the activities of one or more identified
individuals. Mr. President, Members of the Court, s uch an investigation is not a general
fact-finding exercise at the end of which individual culpability is assessed. It is a very different
exercise, it is from the outset an investigation into an individual or individuals, intended to
ascertain whether there is sufficient evidence to charge them with any offence. In that sense, t he
investigation will follow a relatively narrow course.
25. I move on, then, to the next stage of the exercise: the prosecutorial decision. Then of
course, the first thing to note, is that the decision whether to indict an individual and, if so, with
what charges, is inevitably bound up with the initial decision to investigate. If the investigation has
followed a particular line of enquiry, there will be no decision for a prosecutor to make on what
might have been the evidence if some other line of enquiry had been adopted. The decision of the
8ICTY Statute, Art. 16. - 36 -
ICTY Prosecutor is whether, on the evidence resulting from a particular investigation into one or
more individual suspects, there is sufficient evidence to provide reasonable grounds for believing
that the identified suspect committed a crime for which he can be properly charged.
26. That decision may well be affected by the breadth and extent of the investigation. If the
investigation, for operational or other reasons, did not produce specific evidence against the
identified suspect, it may well be that the individual cannot properly be charged. Mr. President,
Members of the Court, that does not mean that a crime has not been committed. Whether a charge
could have been brought against another suspect had he or she been investigated, or even against
the identified suspect had the inv estigation taken a different course, is, quite simply, an
unanswerable question.
27. And the discretion of a prosecutor also operates at other levels. So, for example , it is
plain that neither the ICTY Statute nor the ICTY Rules on Procedure and Evidenc e impose an
obligation on the Prosecutor either to investigate or to prosecute. Nor is there an obligation to
pursue the most serious charges available on the totality of the evidence in any given case 8. The
Prosecutor is free to characterize the conduct of an accused under any appropr iate heading. In
international law, unlike in domestic law, the vast majority of crimes are very serious but not all
can be pursued. The ICTY , in the Mucić case, emphasized the breadth of prosecutorial discretion
as to investigations and indictments and the “finite human and financial resources” available which
89
means that the Prosecutor “cannot realistically be expected to prosecute every offender” . This
principle applies equally in respect of the choice of charge.
28. In 2001, former ICTY Prosecutor Carla del Ponte explained to the U nited Nations
Security Council that decisions to prosecute are necessarily selective. And I put the quote on your
screen, just so the significance can be appreciated:
[Plate on]
“From the many thousands of significant targets, we have selected under
200 . . . and we do not expect to prosecute even all of those . . . [T]he figures
represent, as I have said, only a fraction of the potential number of crimes or suspects,
all of which involve mass murders, multiple killings, or other crimes at the very
8RC, para. 2.27 (2).
8Case No. IT-96-21, Appeals Chamber Judgement, 20 Feb. 2001, p. 602. - 37 -
highest end of the scale of national or international crimes. In fact we turn most cases
90
away.”
[Plate off]
29. How different to the position that this Court finds itself in. The reality is that a very wide
range of factors may influence the discretion to prosecute which cannot have any material
significance for the determination of issues before this Court . These incl ude cost, length,
91
manageability, availability of witnesses and sometimes availability of the accused . It is not
uncommon for a prosecutor to decide not to bring charges against an individual , not because a
conclusion has been reached on the basis of the evidence but , much more pragmatically, on the
basis that a key witness is unable or unwilling to provide the necessary evidence, either at all, or on
conditions acceptable to the c ourt. No sensible inference about the commission of a crime can be
drawn from that set of circumstances.
30. Moreover, the ICTY Prosecutor is increasingly under pressure of time, with the ICTY
92
Completion Strategy having been in place for nearly 10 years . A number of persons suspected of
crimes in Croatia, including Slobodan Miloševi ć and Slavko Dokmanović, have passed away
before they could be brought to justice. The Prosecutor may opt to pursue certain charges over
others following a plea bargain, or because conviction is considered to be more likely on a less
93
serious charge and adequate penalti es are still available . Certain charges may not be pursued
because there is no single person in respect of whom the elements of actus reus and mens rea can
be proved.
31. Conversely, the factual scope of the case may render proceedings far too long and
complex if charges are brought.
32. Richard Goldstone, former Chief Prosecutor of the ICTY and ICTR, and well known to
this Court, has rightly argued 94 that drawing inferences from the absence of ICTY charges is in
90
ICTY Press Release GR/P.I.S./642 –e, Address by Carla Del Ponte, ICTY Prosecutor, to the United Nations
Security Council (27 Nov. 2001).
91RC, para. 2.27 (3).
92RC, para. 2.31.
93
Reply, para. 2.27 (3).
94R. Goldstone and R. Hamilton, “Bosnia v. Serbia: Lessons from the Encounter of the International Court of
Justice with the International Criminal Tribunal for the Former Yugoslavia”, (2008) 21 Leiden Journal of International
Law 95. - 38 -
his words “troublesome” because, and I put the quote on your screen, this is the Chief
Prosecutor: [Plate on]
“the Prosecutor’s decision not to charge genocide in an indictment may have nothing
at all to do with the absence of evidence that genocide was committed” . [Plate off]
May I just leave that up there for one moment. If he is right about that the decision not to
charge may have nothing to do with the absence of evidence one does ask how any inference
can be drawn from a Prosecutor’s decision not to bring a charge? And there is the additional fact
that reasons are not given for not charging. Mr. President, Members of the Court, that quote in a
sense is a complete rebuttal of any argument that weight can be given to a decision not to prosecute
a given individual for genocide.
33. There may be a lack of evidence of mens rea in respect of a particular individual,
evidence could have been obtained from a State intelligence source and therefore be undisclosable,
or there may have been, much more simply, a plea bargain or some unrelated weakness in the
prosecution case. None of these factors can or should carry evidential weight as to whether a
96
violation of the Genocide Convention has in fact occurred .
34. There is also an important timing issue. There are real risks in giving weight to the
Prosecutor's decision not to charge genocide , when the position may change. As Professor Sands
has already indicated this morning , since this Court's decisions in the Bosnia case, the ICTY has
97
found in the Tolimir case that genocide was committed not only in Srebrenica but also at Žepa .
And as you heard m oreover, in July last year, the Appeals Chamber of the ICTY reinstated
genocide charges against Karadžić 98.
(b) The status of the decision to charge
35. I now turn to t he second broad submission about the status of the decision to charge .
Unlike the position in some domestic jurisdictions, the ICTY Prosecutor is under no obligation to
95
R. Goldstone and R. Hamilton, “Bosnia v. Serbia: Lessons from the Encounter of the International Court of
Justice with the International Criminal Tribunal for the Former Yugoslavia”, (2008) 21 Leiden Journal of International
Law 95, at 106.
96RC, para. 2.30.
97Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-T, Trial Judgement, 12 Dec. 2012, para. 1173.
98
Prosecutor v. Radovan Karadžić, Case No. IT-9S-SI18-AR98bis.l, Judgement, 11 July 2013, para. 115. - 39 -
give reasons for decisions whether or not to charge particular persons or particular crimes. And as
a matter of fact, the ICTY Prosecutor has not done so in any case relevant to the issues before this
Court.
36. There is therefore simply no way of telling whether the Prosecutor reached a considered
evaluation that particular events did not amount to the crime of genocide or whether charges were
99
not brought for some other wholly unrelated reason . Even if the Prosecutor had reached such a
considered position — which will never be known — the evidential significance of such a decision
should be minimal , since the Prosecutor’s decisions are not judicial but executive in status, and
involve no definitive finding of fact 10.
37. And that brings me to a linked issue and that is that there are no means of reviewing or
challenging prosecutorial d ecisions not to charge, unlike the position in some other jurisdictions .
Under Article 19 of the ICTY Statute 101 and Rule 47 of the Rules of Evidence and Procedure, the
judicial arm of the ICTY will review each indictment, including the charges that have been
included, and has the power to dismiss any count not supported by the evidence. But the judicial
arm has no way of reviewing the charges that have not been included, or the reasons for
non-inclusion. It would therefore be illogical to a fford greater e vidential weight to an
unreviewable decision without reasons not to include a charge, than the reviewable decision to
include a charge.
38. The Applicant stands back and submits that a principled approach would result in no
weight being given to either decision. The decision to include a charge and the decision not to
include a charge can be regarded merely as different — negative and positive — outcomes of the
same decision-making process; that is, the decision whether to include a particular charge. Neither
outcome involves a definitive finding of fact; therefore, no evidential inferences should be drawn
99RC, para. 2.27 (6).
100
RC, para. 2.27 (5).
101Article 19 (1) of the ICTY Statute provides:
“1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that
a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so atisfied, the
indictment shall be dismissed.”
See further the detailed procedure for review of indictments set out in ICTY Rules of Procedure and Evidence,
Rule 47. - 40 -
either way 102. As recognized in the Bosnia case, and as I mentioned earlier, it would be wrong to
infer from the inclusion of a cha rge in an indictment that the act is likely to have been committed.
In the Applicant’s submission, it would be equally wrong to infer from the non-inclusion of a
charge that the act has not been committed. As every prosecutor knows, a decision to include a
charge or not can be a very finely balanced exercise indeed. There are numerous examples of good
and rational prosecutors taking different views on the same evidence. Far better, it is submitted, for
this Court to reach its own conclusion, on the basis of the evidence before it and the legal principles
to be applied. As Professor Sands has said, in this respect the Court is effectively acting as a first
instance court.
(c) Distinguishing individual criminal responsibility and State responsibility
39. I then turn to my third submission on this issue. As the Applicant makes clear in the
Reply, a decision to prosecute an individual may well be made for reasons wholly unconnected to
the question of S tate respo nsibility for violation of the G enocide Convention 103. More
fundamentally than that, the ICTY and this Court are asked to address entirely different legal
questions; their answers should not be determinative of each other 10. The ICTY is concerned with
individual responsibility for particular crimes, not State responsibility for an accumulation of
crimes 10. The ICTY’s scope of inquiry is limited to the operations of one accused in relation to
each charge. That repre sents a small segment or puzzle- piece in the much larger picture that this
Court is ask ed to consider — namely the cumulative impact on a protected group of a series of
crimes, systematically perpetrated on a large section of the population, over a wide geographical
area, by a large number of perpetrators, some or all of whom cannot be ident ified and brought to
justice before the ICTY for their parts in events 106.
40. This Court is able to — and must — take a global view of all the evidence, including
findings already made by the ICTY. It also has before it, and is able to rule on, additional evidence
10RC, para. 2.27 (5).
103
RC, para. 2.27 (4).
10RC, para. 2.29.
10RC, para. 2.27 (7).
106
RC, para. 2.27 (7). - 41 -
that was not the subject of charges before the ICTY 10. For example , the total destruction of the
city of Vukovar and its civilian population was not charged in the Mrkšić indictment; nor were the
killings and torture at Velepromet. The Applicant will refer in the course of submissions to
first-hand witness evidence not available to or considered by the IC TY in this regard. Also before
this Court are findings of genocidal forcible displacement by the Croatian national courts in cases
such as Koprivna and Velimir 108, along with convictions by the Belgrade District Court War
109
Crimes Chamber of Serbian perpetrat ors of atrocities in Croatia . This Court is in a far better
position than the ICTY Prosecutor, and indeed the ICTY itself, to assess whether the totality of the
crimes committed amounted to genocide. Of course, this Court is the guardian of the Convention.
41. Furthermore, the Applicant in this case does not face the challenge encountered by the
ICTY Prosecutor in proving that both action and intent emanate from the same, single perpetrator.
A paradigm example of the evidential complexities this can pr event is the case of
Veselin Šljivančanin.
The PRESIDENT: Šljivančanin.
Mr. STARMER: Šljivančanin. Thank you. As with Professor Crawford, I have been
practising, but not quite enough! I have got it to come several times in the next passage, so I go
with some trepidation. The Trial Chamber found that Mr. Šljivančanin, who headed the evacuation
of Vukovar hospital, had failed t o protect from mistreatment 194 prisoners killed at Ov čara, but
110
that he lacked the mens rea for murder . However, the Appeals Chamber found on circumstantial
evidence th at on the night in question Mr. Mrkšić, the colonel in charge, must have told
111
Mr. Šljivančanin that JNA protection had been withdrawn from the prisoners . The Appeals
Chamber therefore found that Mr. Šljivančani n possessed the mens rea for aiding and abetting
murder. Mr. Šljivančanin applied for a review, submitting new testimony from a witness who
107
RC, para. 2.27 (8).
108
RC, paras. 2.71-2.74.
10RC, para. 5.8.
110
Mrkšić and others, Case No. IT-95-13/1-T, Judgement, 27 Sep. 2007, paras. 655-674.
111
Mrkšić and others, Case No. IT-95-13/1-A, Judgement, 5 May 2009, para. 62. - 42 -
heard the relevant conversation that Mr. Mrkšić did not inform him of the withdrawal. The
Appeals Chamber then overturned its finding on mens rea for murder . 112
42. In this way this is really the point the fragile evidence of one murmured
conversation became the battleground for the determination of whether one individual had
committed certain offences. This example is illustrative of the limited evidential scope available to
international criminal tribunals. It is much simpler for this Court to find, based on all of the
evidence now before it, that the mass destruction of prisoners because they were part of a gro up
was carried out at Ov čara by Serb paramilitaries under JNA control, in violation of the Geneva
Convention. This is particularly so because State responsibility bites even where actions and intent
emanate from different sources. Serbia is liable for th e conduct of its organs, whether or not it is
possible to prove that an individual commander necessarily shared the genocidal intent of those
who framed the campaign 11.
43. Former Prosecutor Goldstone has emphasized the key point, that the ICTY and the ICJ
are asked to answer entirely different legal questions 11. The ICTY is asked whether genocide was
committed by the individual before the tribunal. The ICJ is asked whether genocide occurred by
115
acts attributable to a S tate . Even where criminal responsibi lity is not substantiated beyond
reasonable doubt for whatever reason in respect of a particular individual, it remains entirely open
to this Court to make a finding of S tate responsibility for a pattern of conduct amounting to
genocide under the Genocide Convention.
44. For all those reasons, Mr. President and Members of the Court, the Applicant submits
that no evidential weight should be placed on the decision of the ICTY Prosecutor not to charge an
identified suspect with the offence of genocide in relation to events currently before this Court.
45. Mr. President, Members of the Court, thank you for listening to these submissions. With
your permission I will now pass over to my colleague Ms Špero, who will give an overview of the
factual speeches, unless now would be a convenient point to take a break.
112
Mrkšić and others, Case No. IT-95-13/R.1, Review Judgement, 8 Dec. 2010, paras. 31-32.
11RC, para. 2.27 (4).
11Goldstone, p. 105.
115
RC, para. 2.28. - 43 -
The PRESIDENT: Thank you very much, Sir Keir. I think this is an appropriate moment to
take a 15 minutes break. The hearing is suspended for 15 minutes.
The Court adjourned from 11.30 a.m. to 11.50 a.m.
The PRESIDENT: Please be seated. The hearing is resumed and I invite Ms Jana Špero to
continue the presentation of Croatia’s case. You have the floor, Madam.
Ms ŠPERO:
INTRODUCTION TO THE APPLICANT S C ASE ON THE FACTS
1. Mr. President, Members of the Court, it is a privilege to appear before you on behalf of
Croatia to introduce the factual presentation of the case.
Introduction
2. My task and that of my colleagues in the next six pre sentations is to set out Croatia’s
factual case. We will describe to the Court atrocities committed by Serbia over the course of 1991
and 1992. Those atrocities included killings and infliction of serious bodily and mental harm
against a group of ethnic Croats living in the reg ions slated for inclusion in a “ Greater Serbia”
atrocities which constitute the physical element of the crime of genocide. They were committed
with the intent to destroy a part of the Croat population in those regions. These facts also go to the
mental element of the crime of genocide. The facts will further demonstrate that the JNA, under
the command and control of Belgrade, was directly involved in the genocide. They demonstrate
that the JNA perpetrated, and also, ordered, fa cilitated, aided and abetted the commission of
genocide by the TO s and other Serb forces, including paramilitaries. Facts also demonstrate that
Serbia knew that genocide was occurring and yet failed to prevent it. Indeed, it continued to
provide financial and military support to the rebel Serb authorities and the Serb paramilitary groups
and volunteers engaged in what it knew was “uncontrolled genocide” in Croatia 11.
11Reply (RC), Vol. 4 Ann. 63: memo of 13 Oct. 1991 from Colonel Milinko Dokovic: “the greater area of
Vukovar, volunteer troops under the command of . . . are committing uncontrolled genocide and various acts of
terrorism”. - 44 -
3. My presentation today will do four things by way of introduction to Croatia’s case on the
facts.
4. First, I will provide an overview of the genocidal campaign waged by Serbia in Croatia.
5. Second, it will take the Court through some of the key factual findings of the ICTY,
relating to those events. These are directly relevant to the C ourt’s assessment of the facts of this
case. They establish beyond any doubt theactus reus of genocide.
6. Third, it will demonstrate how the facts before the Court prove not just the actus reus, but
also the mens rea and dolus specialis of genocide, na mely the intention to destroy the Croat
population in the areas of Croatia targeted to be part of “Greater Serbia”.
7. Fourth, it will set out a roadmap for the following factual presentations.
Overview of the conflict
8. Mr. President, Members of the Court, I turn to my first point, which is to provide the
Court with an overview of the genocide in Croatia. A more detailed c hronology is provided in
Volume 5 of the Appendices annexed to Croatia’s Memorial 11.
9. [ Screen on] The Court heard yesterday about Serbia’s plans for the creation of a
Croat-free “Greater Serbia”, which envisioned inclusion of over half of the territory of Croatia.
That territory was to include the regions now depicted on your maps, namely: [Next graphic]
Eastern Slavonia, Western Slavonia, Banovina, Kordun, Lika and Dalmatia. The territory
corresponds to that of the three so- called “Serbian Autonomous Oblasts” or SAOs, which were
those self-proclaimed Serb autonomous areas, unlawfully declared on the territory of the Republic
of Croatia in 1990 and 1991, [Next graphic] namely the SAO Krajina, the SAO Western Slavonia
and the SAO Eastern Slavonia, Baranja and Western Srijem. This is the main territory in which the
genocide in Croatia was carried out.
10. As you heard yesterday, Serbia first identified which reg ions of Croatia to include in
“Greater Serbia”. It then set about demonizing the Croat population of those regions as dangerous
“Ustashas”, intent on Serb destruction and incapable of livi ng in harmony with Serbs. Having
stoked fears and ethnic hatred, it then armed local Serbs; it assisted in the creation and arming of
11Memorial (MC), Vol. 5, App. 1, p. 1. - 45 -
ultra-nationalist, anti-Croat paramilitary groups; and it tasked the JNA, an army under Serbian
direction and control, with carrying out its plan to eliminate the Croat population living in those
regions. With that intent , the JNA, under the control of Serbia, as well as Serb TOs and
paramilitaries and other Serb forces under JNA command, pursued a genocidal campaign
throughout those regions.
11. The newly formed and ill -equipped Croatian forces, described to you yesterday by
Professor Crawford — they were no match for the JNA and other Serb forces. The defence of
targeted villages was often limited to groups of local , Croat men, cal ling themselves “defenders”,
often armed only with hunting rifles. Croat civilians, often elderly people, unable or unwilling to
flee, were subjected to extreme brutality, as they were tortured, raped and killed by JNA soldiers,
TOs and paramilitaries. Entire Croat communities were intentionally destroyed.
12. By the end of 1991 the JNA, together with the TOs and Serb paramilitary forces, had
occupied almost one thir d of Croatian territory. On 19 December 1991, the “Republic of Serbian
Krajina” was declared on the territory of the SAO Krajina and i t soon expanded to encompass the
other two SAOs.
13. During the course of the genocidal campaign, the JNA and subordinate Serb forces killed
over 12,500 Croats, 865 are still missing to this day. They caused serious mental and physical
harm to tens of thousands of Croats. They raped more Croat women than can be known. They
destroyed over 100,000 homes and over 1,400 Catholic buildings and places of worship. They
rounded up over 7,700 Croat s for detention, ill -treatment, rape and torture, sending them to
detention camps in occupied parts of Croatia, Serbia, and other parts of the former Yugoslavia, and
they forcibly deported over 550 000 others.
14. These are the atrocities, committed with the intent to destroy the Croat population in the
targeted regions, on which the Applicant’s case is based. [Screen off]
The factual findings of the ICTY establish the Applicant’s factual case
15. Mr. President, Members of the Court, as you heard yesterday, when Croatia submitted its
application to th is Court on 2 July 1999, initiating proceedings in this case, Slobodan Milošević
was still the President of the Federal Republic of Yugoslavia. No prosecutions had taken place and - 46 -
the Federal Republic of Yugoslavia was still refusing to co-operate with the ICTY. It provided safe
harbour to those indicted by the Tribunal.
16. In the intervening 15 years, many of the individual atrocities pleaded by Croatia in this
case have been adjudicated by the ICTY. As determined by this Court in the Bosnia case, those
findings of fact by the Tribunal, made after lengthy and painstaking assessment of the eviden ce
118
before it, are “highly persuasive” . They are central to the assessment by this Court of the facts
before it. Of particular significance are the findings in Martić, Stanišić and Simatović, Mrksić et al,
119
and Babić . In those cases, the ICTY found, beyond any reasonable doubt, that atrocities were
perpetrated by members of the JNA, together with other Serb forces, as part of a systematic attack
against the ethnic Croat population of Croatia.
Milan Martić
17. In the case of Milan Martić, third President of the so-called “RSK”, who was convicted
for his role in the killing, torture, imprisonment and persecution of ethnic Croats, the ICTY
120
determined that there had been “a widespread and systematic attack” against the Croat
population, by the JNA, TO, Serbian police and Serbian paramilitaries, acting in concert. That
attack involved [Plate on]
121
“the commission of widesp122d and grave crimes” , with “the goal of creating an
ethnically Serb state” .
18. The Trial Chamber found that [next graphic]
“numerous attacks were carried out on Croat majority villages by the JNA acting in
cooperation with the TO and the MilicijaKrajine” . 123
and that
“[T]hese attacks followed a generally similar pattern, which involved the killing
and removal of the Croat population.”
19. The ICTY further determined that [next graphic]
118Bosnia, paras. 220-223.
119
Verdicts are outstanding in two further cases, namely Hadzićand Šešelj.
120Martić, ICTY Trial Chamber, para. 352.
121Martić, ICTY Trial Chamber, para. 443,
122
Martić, ICTY Trial Chamber, para. 342.
123Martić, ICTY Trial Chamber, para. 344. - 47 -
“widespread crimes of violence and intimidation and crimes against private and public
property were perpetrated against the Croat population, including in detention
facilities run by MUP forces of the SAO Krajina and the JNA . . .” 124 [Plate off]
125
20. Hundreds of Croat civilians were imprisoned and subjected to “severe mistreatment” .
Jovica Stanišić and Franko Simatović
21. In the case of Stanišić, the ICTY Trial Chamber found as a matter of fact that “ Serb
126
forces committed a large number of murders against Croats” .
22. It further determined that “members and units of the JNA ” 127, Serb authorities and other
Serb forces perpetrated
“attacks on villages and towns with substantial or completely Croat populations [ . . . ]
killings, use as human shields, detention, beatings, forced labour, sexual abuse, and
other forms of harassment of Croat persons; and the looting and destruction of
128
property” .
23. It found that [screen on]
129
“[i]n SAO Krajina and SAO SBWS most victims were Croats” ,
and that
“[t]he evidence shows that the persons targeted were primarily members of the civilian
130
population” . [Plate off]
Mile Mrksić, Miroslav Radić and Veselin Šljivančanin
24. In the case of Mrksić et al., the ICTY Trial Chamber made important findings of the fact
regarding the command and control exercised by the JNA over the TOs and Serb paramilitaries.
25. It held that the [plate on]
“de facto reality . . . generally, in the Serb military operations in Croatia, was the
complete command and full control by the JNA of all military operations” . 131
26. It determined, on the facts before it, [next graphic] that the JNA
12Martić, ICTY Trial Chamber, para. 443.
125
Martić, ICTY Trial Chamber, para. 349.
12Stanišić, ICTY Trial Chamber, para. 970.
12Stanišić et al., ICTY Trial Chamber, para. 997.
12Stanišić et al., ICTY Trial Chamber, para. 997.
129
Stanišić et al., ICTY Trial Chamber, para. 971.
13Stanišić et al., ICTY Trial Chamber, para. 971.
13Mrksić, ICTY Trial Chamber, para. 89. - 48 -
“not only had de jure authority . . . but also had the manpower, armament and
organisation to exercise effective de facto control over all TO and volunteer or
paramilitary units” 132.
27. These critical findings of fact bear directly on the responsibility of Serbia. [Plate off]
Milan Babić
28. In addition to the these findings of fact by the ICTY, the basis of the guilty plea of
Milan Babić, the president of the so-called SAO Krajina and subsequently the President of the
self-declared “RSK”, was that he, together with Serbian forces, including the JNA and the TO units
from Serbia, in concert with Serbian authorities, established within Croatia a régime that [plate on]
“included the extermination or murder of hundreds of Croat and other non -Serb
civilians” 133,
and that they did so
134
“in order to transform that territory into a Serb-dominated state” . [Plate off]
29. The ICTY in its sentencing judgment described the r égime as also involving the
detention of hundreds of Croat civilians in inhumane living conditions and the forcible deportation
of thousands of Croat civilians.
30. Contrary to Serbia’s repeated protestations in its Rejoinder, the ICTY’s factual findings
are of significant assistance to Croatia, as explained by Sir Keir Starmer this morning. They leave
no room for any shred of doubt that acts constituting the physical element of the crime of genocide,
including killings and the infliction of serious bodily and mental harm, were committed by Serb
forces against the Croat population.
31. Mr. President, Members of the Court, so clear are the ICTY factual findings, that Serbia
has found itself compelled to accept in its Rejoinder that atrocities were committed against the
Croat population. Having originally sought in its Counter-Memorial to avoid any acknowledgment
of those atrocities, the Respondent was forced by the weight of the ICTY findings, corroborating
the evidence before this Court, to change tack in its Rejoinder. It thus now acknowledges
somewhat reluctantly, it must be said that it would be “unrealistic to deny” that atrocities
132
Mrksić, ICTY Trial Chamber, para. 89.
13Babić, Sentencing Judgement, para. 15.
134
Babić, Sentencing Judgement, paras.8 and 16. - 49 -
135
occurred . The Respondent clarifies half-heartedly at various stages of its Rejoinder that “it
is not [its] contention that . . . atrocities were not perpetrated during the conflict in 1991” 136. It
accepts that the fact that those atrocities “involved acts directed against civilians is not really in
dispute either” 137 and that “[e]thnic hatred no doubt figured in much of the behaviour of those
138
responsible for the crimes that were committed” .
32. Indeed, the Respondent goes so far as to seek to persuade the Court that it had never in
fact sought to suggest that atrocities had not been committed. It thus explains [plate on] :
“A careful reading of the Counter-Memorial indicates that the Respondent is not
denying that killings took place, that they were methodical, directed at civilians and
driven by ethnicity.” 139
33. This is an important acknowledgment, that bears underscoring: there is no longer any
factual dispute between the Parties as to whether atrocities occurred. Serbia continues to dispute
various specific incidents pleaded by the Applicant and to take issue with the nature and weight of
the evidence relating to others. However, it does not dispute that the factual basis of Croati a’s case
is made out.
34. More important still, as you heard from Professor Philippe Sands this morning, is the
Respondent’s concession at paragraph 381 [Next graphic] of its Rejoinder that:
140
“theoretically, of course, such acts might correspond to the actus reus of genocide” .
35. Given the “careful” and considered nature of the Respondent’s admissions, this
concession is critical: there is now no dispute between the Parties that atrocities occurred, and
there is no dispute that those atrocities fall within the categories of acts constituting the actus reus
of genocide. The difference between the Parties relates only to the characterization of the crime to
which these acts gave rise. [Plate off]
135
RS, Vol. 1, para. 354.
13RS, Vol. 1, para. 384.
13RS, Vol. 1, para. 360.
138
RS, Vol. 1, para 375.
139
RS, Vol. 1, para 392.
14RS, Vol. 1, para. 381. - 50 -
What the facts establish
36. Mr. President, Members of the Court, that leads me to the third point of my presentation.
The Respondent rebukes Croatia, at various stages of its pleadings, for engaging in what it terms
141
“rather lengthy recitals of alleged atrocities” . The Respondent would prefer that the brut ality of
its acts of violence against the Croat population were not laid bare before this Court. However,
such recital is far from gratuitous, as the Respondent seeks to insinuate.
37. First and importantly, as I stated at the beginning of my presentation, the facts do not just
establish the now undisputed actus reus of genocide. They also evidence the mens rea or
dolus specialis of genocide, that is Serbia’s intention to eliminate and destroy a part of the Croat
population, in the targeted areas of Croatia. The factual evidence, which the Respondent seeks to
criticize Croatia for “ rehearsing” unnecessarily, demonstrates that atrocities committed were not
isolated, random incidents. Rather, they were part of a systematic pattern of horror visited u pon
village after village across the occupied areas of Croatia in order to establish Serbia’s plan for a
Croat-free “Greater Serbia” on the territories seized. That systematic campaign divulges and is
only consistent with an intention to destroy a part of the Croat ethnic group.
38. Further, while the necessarily limited incidents adjudicated by the ICTY establish
the Applicant’s factual case, they do not tell the whole story. Unlike the ICTY, this Court is not
concerned with individual criminal res ponsibility for particular crimes committed by particular
human beings. The Court in these proceedings is concerned with the responsibility of the
Respondent for the totality of the assault against the Croat population in the targeted areas, and for
failing to prevent and punish the same. A detailed account of that conflict is necessary to
demonstrate that, contrary to the Respondent’s assertions, the armed onslaught orchestrated by
Serbia did not involve only the commission of war crimes, as determined b y the ICTY in its
assessment of individual criminal responsibility. It also exhibited, from the very early stages, the
characteristics of a genocidal military campaign aimed at the destruction in whole or in part of an
ethnically, religiously defined group of people. That group of people were the Croats living in
villages and towns targeted for attack by Serbia.
14RS, Vol. 1, para. 375. - 51 -
39. Second, the factual evidence shows that the attacks upon and seizures of Croat villages
were led and directed by the JNA, to which all other Serb forces were subordinated, and which was
itself subordinated to the Respondent. It establishes that the JNA committed atrocities itself. It
also directed the TOs and Serb paramilitary groups to commit similar atrocities; and it facilitated
their c ommission, by failing to prevent or curtail them, in all but a few limited and isolated
incidents. There can be little dispute on these matters, having regard to the ICTY’s findings of
fact. The factual evidence pleaded by Croatia establishes not only the Respondent’s
responsibilitiesfor the atrocities committed, but also the clear genocidal intent behind them.
40. Thirdly and importantly, it is critical for Croatia to set out the detail of its factual case in
order to make clear that this case is not concerned with abstract legal concepts, but with real events,
real people, real acts of destruction. Serbia’s genocidal acts were directed against, and intended to
destroy, the Croat population of the villages, towns and regions concerned. The effects of those
atrocities continue to be felt profoundly in Croatia. Croatian families continue to mourn
12,500 dead. Croatian families continue to search for the remains of over 8 00 individuals
fathers, sons, mothers, daughters, friends still missing and unaccounted for. Serbia still refuses
to help locate them. Thousands of my compatriots continue to live with the trauma of torture and
rape. The brutal events of the campaign waged by Serbia are etched onto the landscape of Croatia
and into the lives and family histories of every Croatian citizen.
41. These atrocities, with which the Respondent accuses Croatia of “smother[ing] the Court”,
are the atrocities with which Serbia sought to smother and destroy the Croat population of the
targeted areas. They constitute the factual basis of the genocide, for which Croatia seeks justice
before this Court.
Road map of the factual presentations
42. Mr. President, Members of the Court, I turn now to the final part of my presentation, that
is the road map of the six factual presentations to follow.
43. In the first presentation, Professor Philippe Sands will describe the genocide committed
against the Croat population living in the regi ons that were to form part of “ Greater Serbia”. His
presentation will demonst rate the clear ethnic animus that drove the attacks against the Croat - 52 -
population and the destructive consequences of Serbia’s campaign. He will illustrate Serbia’s role
in directing the JNA’s participation in and command of the atrocities committed, its e xtensive
support and co-ordination of genocidal paramilitary groups, its wilful failure to prevent genocide
and its failure adequately to punish it.
44. The second, third and fourth presentations are more geographically specific. [ Screen on]
The second presentation focuses on the genocide committed against the Croat population of
Eastern Slavonia, that is the area now highlighted on the map. [Next graphic]
Ms Blinne Ní Ghrálaigh will use a case study of Eastern Slavonia to describe the r uthless pattern of
attacks on Croat majority villages by the JNA, and other Serb forces, as they pursued their
genocidal campaign against the Croat population. It is Croatia’s case that the widespread,
co-ordinated pattern of attack, stands as clear evidence of Serbia’s genocidal intent. In t he third
presentation, Sir Keir Starmer will describe to the Court how th e pattern of attack was put into
action against the Croat inhabitants of Vukovar [ next graphic], now tragically infamous for the
carnage visited on its population in November 1991. As a final case study, Professor Maja Sersić
will describe the genocide committed against the inhabitants of the lesse r-known villages of
Škabrnja, [next graphic] in northern Dalmatia, and Saborsko, in Lika.
45. On We dnesday and Thursday, Professor Davorin Lapas and Professor
Vesna Crnić-Grotić will conclude Croatia’s case on the facts. Their presentations adopt a thematic,
rather than geographic, approach to the atrocities committed. They will show to the Court that the
atrocities, including the killings, rapes and serious bodily and mental harm, inflicted on the Croat
population by Serbia, were not one -off aberrations, committed by unaccountable individuals or
rogue elements within the Serb forces. Rather, they for med part and parcel of a systematic
programme to destroy a part of the Croat population. [Screen off]
46. The presentations will draw on the extensive materials before the Court, as set out in
Croatia’s pleadings 142available. The materials take the form o f victim and witness statements, of
reports by independent observers and commentators and by international and humanitarian
agencies, of political, military and intelligence documents, of medical and forensic data, of
14See in particular Memorial (MC), Vol.1, Chaps. 4 and 5 and Reply (RC), Vol.1, Chaps. 5 and 6, and
associated annexes. - 53 -
exhumation and missing person s’ records, of contemporaneous news reports and other evidence.
They include the judgments and factual findings of the ICTY. They demonstrate beyond any
doubt, that atrocities constituting the crime of genocide were perpetrated against the Croat
population of Croatia by the JNA, by the TO, by Serb police and security services, and by Serb
paramilitary groups subordinated to it, acting under the direction, and with the active support and
co-ordination, of Serbia.
47. Mr. President, Members of the Court, the presen tations make for a grim listening. This
will not be a pleasant few days of hearings. However, those are the atrocities committed by Serbia
against Croats just because they were Croats. Those are facts of this case. And so describe
them we must.
Conclusion
49. In conclusion, it remains for me to emphasize one final point, both for the Court and for
the victims and survivors of the atrocities with which the Applicant’s claim is concerned.
50. The scale of atrocities does not allow for an exhaustive presentation. Croatia will be able
to present to the Court only a number of representative examples. This necessary selectivity cannot
undermine or in any way deny the facts or call into question the suffering of the victims. In so far
as Croatia focuses on incidents , particular incidents or localities, that focus should not be
interpreted as undermining the significance or the gravity of the crimes committed elsewhere.
51. Mr. President, Members of the Court, thank you for your attention. I now leave the floor
to my colleague, Professor Philippe Sands.
The PRESIDENT: Thank you very much, Ms Špero. I give the floor to Professor Sands.
You have the floor, Sir. - 54 -
Mr. SANDS:
GENOCIDAL A CTIVITIES IN THEOCCUPIED REGIONS OF C ROATIA : EASTERN SLAVONIA ,
W ESTERN SLAVONIA , ANOVINA , ALMATIA , ORDUN AND L IKA
I. Introduction
1. Mr. President, driven by the vision of an enlarged and ethnically pure Serb ian State, the
Respondent committed a large number of genocidal acts across communities of the occupied
regions of Eastern and Western Slavonia, Banovina, Dalmatia, Kordun and Lika , these were very
large regions by any standard.
2. My task in this presentation is to set those acts in context by providing the Court with an
overview of how the campaign unfolded, and I am going to highlight patterns and themes that cast
light on the ethnically destructive intention that led to those activities. These demonstrate different
aspects of Serbian responsibility under the Convention.
3. The prese ntation will be in three parts, I will begin by demonstrating the clear racial
animus that underlay all of these acts.
4. In the second part I am going to show the Court how the Respondent’s actions deliberately
targeted Croat groups with the intention of destroying them across these areas and, in the third part,
I am going to take the Court to examples that demonstrate the different ways in which Serbia’s
responsibility is engaged.
5. I should say that the examples I give are illustrative and they ar e unhappy and I apologize
in advance for having to take you to material which is, both in terms of word and images,
extremely unhappy material.
II. The Respondent’s campaign in Croatia
6. I begin with history . And I hope you will forgive me for that. You heard on Monday,
Mr. President, the circumstances in which a frenzy was whipped up of hatred, a call for action
against Croats in certain parts of the former Yugoslavia, on the basis of a false historical narrative,
that once again cast Serbs as victims of some horror. And you heard more yesterday if you read - 55 -
your newspapers, as the Agent of Serbia used exactly the same argument that somehow being in
the Court today and yesterday was once again an indicator of victimhood.
7. Let us begin in the spring of 1991. [ Next graphic] On 1 May 1991 the Serbian flag was
hoisted in the small town of Borovo Selo in Eastern Slavonia. A group of policemen tried to take it
down and that caused them to be attacked . The following day Serb paramilitaries murdered
12 Croatian policemen in the village, and wounded many others . This was a very significant
moment in Eastern Slavonia, a catalyst for the arrival of the JNA , ostensibly to establish a “buffer”
zone between Serb and Croat communities . The reality was very different: it was to establish a
military presence and in particular to block any attempt to investigate or arrest the perpetrators of
143
the killings . The JNA’s deployment set the stage for an escalation on which you will hear more.
8. [Next graphic ] Elsewh ere in Croatia, on 13 August 1991, Serbs in Western Slavonia
proclaimed the “Serbian Autonomous Region of Western Slavonia” 144, the third of the
self-declared Serb autonomous zones, joining the “SAO SBWS” (declared in February 1991) and
the “SAO Krajina” (declared in December 1990).
9. From August 1991 the campaign against ethnic Croats accelerated rapidly, with the JNA
firmly at the helm . On 19 August 1991, Milan Martić, who occupied various senior leadership
positions in the SAO Krajina, declared that land controlled by the police and TO of the
145
SAO Krajina “will forever remain Serbian” . According to the ICTY, from that moment
August 1991, “the JNA became an active participant in Croatia on the side of the SAO Krajina” 146.
And from that point on, as the ICTY has found “the SAO Krajina TO was subordinate to the JNA”
and there was “operational cooperation between the JNA and the armed forces of the
SAO Krajina” 147.
10. Having primed and armed the Croatian Serb minority population in the weeks and
months that came before, the JNA whose ranks were swelled by Serb volunteers led attacks
against Croat groups in towns and villages throughout the targeted regions . Participants in the
14MC, Vol. 1 para. 4.16.
144
MC, Vol. 1, para. 5.07.
14Prosecutor v. Milan Martić, (IT-95-11-T), Trial Chamber Judgement, 12 June 2007, para. 333.
14Martić, Trial Chamber Judgement, para.330.
147
Martić, Trial Chamber Judgement, para.142. - 56 -
campaign included TO units from Serbia, the SAO Krajina and the SAO SBWS ; the security and
police forces of the Republic of Serbia and the Serb autonomous areas ; the Milicija Krajine; and
148
numerous Serb paramilitary groups of which you will hear more. In just a few frenzied months,
the JNA and Serb forces under its command attacked, for the purposes of destruction, Croat groups
in town after town and village after village throughout the regions that you can see on your screens.
The intention was plain and simple, to destroy the Croat communities in their entirety, and this wa s
largely achieved: human populations were wiped out, and homes, schools, businesses, churches
and hospitals razed to the ground. [Next graphic]
11. In Martić, the ICTY described the pattern of death and destruction in the SAO Krajina,
you have the quote on the screens, you have a description of the events from June 1991 to
December 1991, raids carried out against predominantly Croat villages in the SAO Krajina. It
identifies the perpetrator and a long list of villages by name and then it says:
“Villagers were left with no choice but to flee . During or immediately after the
attacks, villagers who stayed behind were killed and beaten . Private and public
property, including churches and schools, were destroyed and looted.” 149
Those are findings of fact. [Screen off]
12. Substantial? It is very difficult to see how you could possibly conclude that this was not
150
substantial. The chronology and sequence of attacks is set out in our pleadings . And you are
going to hear more particular case studies shortly.
III. The ethnic purpose of the Respondent’s campaign
13. You heard from Ms Law on Monday about the context, which we know from the
writings of people in this field of genocide studies as it has come to be known, genocide always
begins with the demonization of a particular group, that is the early warning. Let us start then with
demonization.
148
MC, Vol. 1, Chap. 3, Sec. 2.
14Martić, Trial Chamber Judgement, para.349.
150
MC, Vol.1, Chaps. 4 and 5; RC, Vol. 1, Chaps. 5 and 6. - 57 -
(a) Demonization, denunciation and ethnic tagging
14. The ethnically destructive intent behind the Respondent ’s campaign is plain from the
demonization of C roat groups in communities and towns and regions across the area ethnic
abuse on defenceless civilians, and the use of ethnic markers in relation large numbers of
individuals were indicators of the aim of dehumanization.
15. A graphic manifestation of this was the deliberate mutilation of Croat civilians with the
use of Serb symbols . In the village of Ilok in Eastern Slavonia, for example , two masked men
arrived at the house of a Croat family and shouted : “Open up, you Ustasha mother” . They broke
down the door, handcuffed one of the residents and then used a knife to slice a cross with four “Cs”
151
into his forehead the acronym for the Serb nationalist motto “Only unity saves the Serb” .
Similarly in Korenica in Lika, a Serb fighter cut an identical e mblem into the chest of an
152
imprisoned priest . Two examples out of many. Coincidence? Surely not! The nature of these
acts, and their scale, indicates that they were not random. The details are set out in the pleadings.
They reflected an underlying ethnic intent to destroy the groups.
16. There is much worse. In a macabre practice that evokes another period and another
place, across the occupied communities and reg ions not isolated incidents, numerous, set out in
the pleadings Croat civilians were forced to wear white ribbons, and ordered to adorn their
homes with white rags. These were measures of ethnic designation. Thus earmarked, they were
ready targets for destruction . In Bapska, Croats were forced to hang white ribbons on their doors
153
by Serbs who shouted, “Ustasha! We will kill you all” in the witness statements. The Croat
populations in Arapovac 154, Lovas , Šarengrad , Sotin , Tovarnik 158 and Vukovar 15, amongst
other places, were forced to wear white bands by Serb forces. The scale was substantial, by any
151
MC, Vol.2 (I), Annex 57.
152
MC, Vol.2 (III), Ann. 383.
153MC, Vol.2 (I), Ann. 66.
154MC, Vol.2 (III), Ann. 348.
155
MC, Vol. 2 (I), Ann. 96; Ann. 97; Ann. 98; Ann. 101; Ann. 102; Ann. 104; Ann. 105; Ann. 107;
Ann. 108.
156
MC, Vol. 2 (I), Ann. 53.
157
MC, Vol. 2 (I), Ann. 93; RC, Vol. 2, Ann. 3.
158MC, Vol.2 (I), Ann. 76; Ann. 83; Ann. 84; Ann. 86.
159MC, Vol. 2 (I), Ann. 128. - 58 -
reasonable standard. [Screen on] You will see now a photograph on your screen. It shows the use
of a morbid decoration in a mass grave, found tied to the skeletal remains of murdered civilians in
those mass graves. And I do apologize for having to show this to you in open court to you in this
way but, Mr. President, Members of the Court, it is cruelly ironic that, many years after the bodies
of victims ceased to be recognizably Croat, ragged ethnic markers remain ed bound to their bones,
an enduring monument to a campaign of calculated racial destruction against people for the simple
reason that they were Croat. [Screen on]
(b) Anti-Croat abuse and the ubiquitous “Ustasha” label
17. Let us turn to the ubiquitous “Ustasha” label. Attacks on Croat civilians were frequently
accompanied by virulent ethnic abuse and racial threats. And I am going to tone down some of
them in this open court room. Reflecting the clear influence of racist propaganda that came
directly from Belgrade you heard the source on Monday and the hate speech that dominated
the Serbian media from the late 1980s, the derogatory “Ustasha” label was simply used to describe
anyone who was Croat. [Screen on] Witnesses recount how Croats were explicitly denounced as
“Ustashas” while being attacked, killed or threatened with violence in numerous towns . You can
see them on your screens, each one indicates where witness statements have been prepared where
this has been done. Again, I ask you to ask yourse lves, is this substantial across such a territory?
Is it pure coincidence across such a territory? Obviously not.
18. The witness statements are substantial in describing this intent. In Poljanak , an armed
soldier told Croat civilians that he wore a glove “so that I won ’t get my hand bloody when I slit the
160
throats of Ustashas” . In Voćin, heavily armed Serb paramilitaries shouted at Croats: “Ustashas,
we will slaughter you all, we will cut your arms and legs off.” 161 Other such paramilitaries cried:
162
“Give us Ustashas to slaughter them, because we are ear -nose-throat specialists.” A wounded
Serb fighter in the village asked to be left alone to reflect , “I can die now ” he was reported as
163
saying, “since I have killed four Ustashas yesterday” . So pervasive was the anti-Croat sentiment
160
Martić, Trial Chamber Judgement, para. 216
16MC, Vol. 2 (II), Ann. 189.
16MC, Vol. 2 (II), Ann. 204.
163
MC, Vol. 2 (I), Ann. 194. - 59 -
in that village that one Serb doctor there refused to prescribe medicine for sick Croat children,
164
because he had “no medicine for little Ustashas” .
19. Contrast, a Serb doctor in Lovas , who did treat Croat victims of Serb violence, was
beaten up by the Serbs, who were angry that he was “curing Ustashas” while they were busy
“fighting against and murdering Ustashas” 165. And, again, each of these references is footnoted
and you can find all of the material and all of the witness statements, and you are going to hear
from witnesses in the course of the next few days, in relation to this kind of material. A Croat
woman in Berak who sought medicine for her epileptic husband was grabbed by a TO soldier, who
loaded his gun and shouted: “[An expletive towards] your Ustasha mother, you should die instead
166
of going to the doctor, I will cut you into pieces and send you to your children to cook” .
20. That same woman described how a JNA captain shouted “[Expletive s towards] your
Ustasha mother” after finding a Croatian flag in her house. She was then savagely beaten, losing
many teeth in the attack . Two Serb fighters later approached that same woman and used more
expletives against her “Ustasha mother”: “I killed your son today and buried him in the garden ”,
she was told. “You don’t have to feed him anymore.” 167 Other Serbs in the village demanded that
Croats provide the addresses and photographs of all their “Ustasha children”. “Where are the
168
young Ustasha?” they were asked . Obviously they had been hidden.
21. A woman in Tovarnik recounts how a JNA reservist asked her about her nationality .
Upon learning her to be a Croat, the soldier started shouting at her , “Milošević told them . . . they
were going to the front line and that their task was to kill and destroy everything Croatian” 169.
Another witness describes how a Serb paramilitary attacked Croat civilians with a knife saying :
“you Ustashas, I will suck your blood with this. I will slaughter you with this knife.” 170
164MC, Vol. 2 (II), Ann. 195.
165MC, Vol. 2 (I), Ann. 103.
166
MC, Vol. 2 (I), Ann. 30.
167Ibid.
168MC, Vol. 2 (I), Ann. 34.
169
MC, Vol. 2 (I), Ann. 76.
170MC, Vol. 2 (I), Ann. 80. - 60 -
22. You are going to hear later in the week about the multitude of acts of sexual violence
committed against Croat women and Croat men. Many of those sexual crimes , as you will hear
and as you will know from the pleadings, were accompanied by terrible ethnic abuse. In Berak, for
example, three Croat women, including a 44- year-old mother of six boys, were subjected to a
public gang rape . The two younger women were gang raped repeatedly over the months that
followed, the 44-year-old having been singled out for such punishment because she had “delivered
6 Ustashas”. The older woman was taken away and never seen again 17. Another woman in Berak
was blindfolded and gang raped by seven JNA reservists, who forced her to swallow sperm and
urine while shouting, “ swallow you Ustasha [Expletive]” and “[Expletive] your Ustasha
172
mother” . The rapists shouted and this is known to be significant in genocidal studies and in
genocidal activities “we will exterminate their seed” before stripping the woman naked and
raping her for more than two hours. In Bapska, another town, a Croat man had his genitals beaten
30 times on his witness statement by Serb military policemen who said as they carried out
the act: “You won’t make any more little Croats.” 173 That is genocidal sentiment.
23. Such language, Mr. President, is redolent of a genocidal intent . We leave it to you to
conclude its substantiality across all of these villages and towns. It is very difficult, we say, to see
how you could not possibly do so. [Screen off]
(c) Military orders to attack and destroy the Croat population
24. I turn to military orders to attach and destroy the Croat population. The ethnically
destructive objective of the Respondent ’s campaign is reflected in many official decisions and
orders, including, for example, the “Decision on the Return of Expelled Serbs to Ethnically Clean
174
Serbian Villages”, promulgated by the Municipal Assembly of Pakrac in June 1993 . A witness
from Glina testified that the President of the local Serbian Democratic Party, Dr. Dušan Jović,
171
MC, Vol. 2 (I), Ann. 30.
17MC, Vol. 2 (I), Ann. 35.
17MC, Vol. 2 (I), Ann. 74.
174
MC, Vol. 2 (II), Ann. 239: Decision on the Return of Expelled Serbs to Ethnically Cleanse Serbian Villages. - 61 -
ordered Serb units to “kill and slay every living creature of Croat origin” . On this account,
175
Dr. Jović “used to say that Croats should be exterminated while they were in the womb” .
25. Military orders, of which you have many in your materials, prove that membership of the
Croat ethnic group was the determining factor in deciding whether civilians lived or died . A
former JNA officer described how a senior JNA commander “commended” to him a JNA colonel
176
and “encouraged him . . . to exterminate the Ustashas” in a similar way. Likewise, an order from
the leadership of the Glina TO of 4 October 1991 instructed TO units “to spare” two Serbs two
177
Serbs when “mopping up terrain in Glina” .
26. The desire to eliminate any and all Croats pervaded the paramilitary ranks . In Ervenik
two paramilitaries murdered a Croat family of four . One of the two killers then provided an
account of what he had done:
[Screen on]
“[we] agreed to set on fire and kill the people of Croatian nationality in the village of
Ervenik who remained there . . . both Sl178dan and I firmly decided to go to the
mentioned Croats and to kill them” .
There is no other way but to characterize that as an act intending to destroy a part of a group.
27. Putting that plan into deadly action, one of the paramilitaries then denounced the father
of the family as an “Ustashe” and shot him dead at the entrance to the family ’s home. He then
asked the mother: “Will the Ustashe come back?” using more expletives before cutting her
throat with a knife and shooting dead her two children 17. [Screen off] All of this was well
documented.
28. There was a continuum, Mr. President, from extreme nationalism to kil lings and other
genocidal acts. This happened in numerous Croat towns and villages . The villages of [screen on]
Četekovac, Čojlug and Balinci, where Serb forces murdered at least 20 Croat civilians in 1991, are
180
a typical example . A Serb fighter describes attending meetings in Podravska Slatina with
175RC, Vol. 2, Ann. 6.
176
MC, Vol. 2 (I), Ann. 245.
177Martić, Trial Chamber Judgement, para. 324, footnote 1002 referring to a TO order dated 4 October 1991.
178MC, Vol. 2 (III), Ann. 467.
179
MC, Vol. 2 (III), Ann. 466.
180MC, Vol. 1, paras. 5.42-5.46; RC, Vol. 1, paras. 6.8-6.12. - 62 -
“extreme Serbs”. At those rallies they listened to speeches by the leaders of a political party, the
Serbian Democratic Party , “with the aim of causing national intolerance, a break and national
hatred between the Croatian and Serbian people” . [Screen off]
29. A Serb fighter went on to describe how weapons were distributed to rebel Serbs from
JNA warehouses. In September 1991 the fighters were commanded to attack Balinci . One group
was ordered to “clean the right row of houses from the road in Balinci”, while another was order ed
to “clean the left row”. A third group was ordered to ensure that no one escaped from the village .
Croat civilians were then singled out and shot, stabbed and beaten to death. Afterwards Serb
182
soldiers boasted that they “shot at anything that moved in Balinci” , presumably because it was
Croat. In a blunt reflection of the purpose of the operation, a former TO fighter described how
“[t]he order to commit genocide against the civilian population” was issued by the local TO
commander, Boro Lukić 18. They knew exactly what they were doing and they knew how to
characterize it.
30. This is unequivocal evidence.
IV. Destruction of Croat towns and villages
31. Let me turn to the destruction of Croat towns and villages. The ethnically destructive
consequences are indisputable . Across the maps that you have seen, entire villages, towns and
small regions, entire communities were wiped out. Four brief examples prove the point.
32. [Screen on] In 1991 the village of Novo S elo Glinsko in Banovina had 239 inhabitants,
all of whom were ethnic Croats 18. On 26 September 1991 the JNA and Serb paramilitaries
attacked the village. By the end of the mont h 206 civilians had fled for their lives, leaving just
185
33 inhabitants . On 2 October 1991 the TO and local paramilitaries entered the village and killed
32 of the 33 remaining residents, they rounded up the men and women and executed them in
181
MC, Vol. 2 (II), Ann. 202.
182
MC, Vol. 2 (II), Ann. 202.
18MC, Vol. 2 (II), Ann. 198.
184
MC, Vol. 1, paras. 5.81-5.83; RC, Vol. 1, para. 6.22.
185
MC, Vol. 2 (I), Ann. 252. - 63 -
186
groups, and they then set the village ablaze . One Croat resident managed to escape the carnage.
Within the space of a single week a Croat population of 239 was reduced to nothing.
33. [Next graphic] The village of Kostrići in Banovina much smaller 15 inhabitants at
the beginning of 1991, all of them Croats 187. On 19 November 1991, a group of Serb paramilitaries
entered the village and murdered every single inhabitant, entirely destroying the Croat population.
The dead included two young boys aged 3 and 5 188. That is not substantial, that is total destruction
of the group. The Respondent criticizes the Applicant ’s reliance on the village as an example of
genocide, they say that the witness statements “are not based on direct knowledge” of the
189
killings . Well, obviously when you kill every single person in a village there are not going to be
people left behind to offer the kind of witness statements they would like to see. The evidence is
190
established by the exhumations of the victims .
34. [Next graphic] Next example, the village of Joševica in Glina. It had 133 inhabitants at
191
the start of 1991, 126 of them were ethnic Croats and there were just two were Serbs . On
16 December 1991 Serb paramilitaries entered the village and shot dead every single Croat civilian
they could find this of course reminds one of the words of the Appeal s Chamber in the Krstić
case: “The intent to destroy formed by a perpetrator of genocide will always be limited by the
opportunity presented to him .” 192 They identified a ta rget of every single person they could find
and sought to kill every single person they found. Some escaped, they hid or they happened to be
working elsewhere when the attack took place. When they returned, they found that 21 of their
193
Croat relatives and neighbours had been murdered . Most of those who survived fled the village;
the minority who remained were beaten, raped and abused, and four more Croats were murdered in
the months that followed. By 1993 not a single Croat was left in the village. Soon you are going to
186MC, Vol. 2 (I), Ann. 252; Ann. 254; Ann. 255.
187
MC, Vol. 1, paras. 5.115-5.116.
188
MC, Vol. 2 (I), Ann. 285; MC, Vol. 2 (II), Ann. 335: Report of killed and missing persons in the area of the
Hrvatska Kostajnica Municipality-Kostrići.
189CMS, Vol. 1, para. 806.
190RC, Vol. 3, Ann. 43, pp. 522 and 525.
191
MC, Vol. 1, paras. 5.84-5.88; RC, Vol. 1, para. 6.23.
192
Ibid. para. 13.
193MC, Vol. 2 (II), Ann. 256; Ann. 257; Ann. 260; Ann. 261; RC, Vol. 2, Ann. 24. - 64 -
hear from a witness from that village and you will be able to ask her yourselves any questions you
wish in relation to the experience that she went through. You will see the deep psychological scars
that are left from such an experience . 194
35. [Next graphic] Next, the village of Ba ćin in Banovina . 414 inhabitants in 1991, of
195
whom about 400 were Croats and there were just six Serbs . In 1991 in October the village was
attacked and taken over by Serb forces. The ICTY found th at, “[f]ollowing the take-over of Baćin,
all the inhabitants left, with the exception of around thirty mostly elderly civilians” . The Trial
Chamber went on to note the evidence that [next plate]
“in October 1991 all of the people who remained in the villa ge were taken to Krečane
near Baćin, where they were killed along with a number of others who were brought
196
from Cerovljani and Hrvatska Dubica” . [Screen off]
All of the people who remained, that is not substantial, it is total, it is complete. The Trial
Chamber found that 28 civilians from the village were killed by one or more of the JNA, TO or
197
Milicija Krajine . Substantial? I leave it to you to discuss whether or not you think that is
substantial or not.
36. [Screen on] The execution of Croat civilians went hand in hand with the physical
annihilation of Croat villages . The ICTY has found that countless Croat towns and villages were
destroyed you can find all of the details in the pleadings. In the Mrkšić case the ICTY
emphasized the ethnically-targeted nature of the destruction in Eastern Slavonia: [Next graphic]
“Many towns around Vukovar were destroyed . . . As one witness described,
the difference between Serb and Croat villages was obvious. In the former, the houses
were gener ally untouched whereas in the latter, everything was torched and
198
devastated.” [Screen off]
37. Town after town Serb forces sought out, identified and then executed Croat civilians who
hid from the carnage just because they were Croats. I could go on an d on with these examples, I
will not do so, the material is in your pleadings.
194
MC, Vol. 2 (II), Ann. 259.
195
MC, Vol. 1, paras. 5.112-5.114; RC, Vol. 1, para. 6.37.
19Martić, Trial Chamber Judgement, para. 189.
197
Martić, Trial Chamber Judgement, paras. 364-365.
198
Mrkšić, Trial Chamber Judgement, para. 55. - 65 -
38. There was targetingtoo of Croat monuments and sacred sites, you heard from Ms Špero
about that, in numerous villages. Across the occupied region more than 200 churches and chapels
were completely destroyed, and hundreds more were seriously and permanently damaged . At least
100 Catholic cemeteries were damaged or destroyed 199. Mr. President, why would you destroy a
place of religious worship? Why would you destroy many places of religious worship , if you did
not intend to destroy the group? They do not pose a threat in military or other terms.
39. None of these churches were legitimate military targets, no church ever is. [ Plate on]
Scores of other churches and sacre d sites were bombed, mined and seriously damaged across the
rest of Croatia. The scale of the destruction is very clear as you can see from this and other images
taken from the pleadings.
40. The JNA ’s destruction and desecration of the church of St . Mary Magdalene in
Tompojevciis typical of the treatment of churches across the occupied regions, as one person said:
[Next graphic]
“The church was shelled. Its interior was completely devastated. Holy pictures
lay around200 well as everything else. The army made a public toilet out of the
church.” [Screen off]
41. After the destruction of the Croat population, the names of “cleansed” villages were
replaced with new Serb names, erasing the nomenclature of the wholly destroyed ethnic groups 20.
Even the Croat dead did not escape Serbia ’s endeavour to destroy all physical manifestations of
Croat identity. Numerous witnesses describe how dead Croats were mutilated and dismembered.
A parish priest from Zadar described how Serb fighters dug up and then desecrated Croat graves in
an effort to eradicate all traces of the Croat group: [Screen on]
“When it [comes] to ethnic cleansing, they behaved towards us as if we were
lice or bugs. Even the traces of dead Croats had to be removed. So they exhumed the
skeletons and the skull . . . Lots of family vaults were demolished and tombstones
were carted away. They ground down the tombstones and t202 used the material to
erect monuments to their fighters in the villages.” [Screen off]
199
Ibid.
20Ibid, p. 174.
20See for example the plan to rename Bapska “Aranoco”, described by Tomsilav Rukavina in his testimony to
the ICTY in Prosecutor v. Hadžić, 6 Dec. 2012, T. 2132.
202
MC, Vol. 2 (II), Ann. 398. - 66 -
42. A quarter of a century on, the legacy of that campaign persists and is indelibly imprinted
across these parts of Croatia. If you were to travel there today, you would still see the
consequences almost a quarter of a century later.
V. Serbia’s responsibility under the Genocide Convention
(a) Genocidal activities of the JNA
43. I turn to Serbia’s responsibility under the Genocide Convention, starting with the
responsibility of the JNA. The JNA was the primary protagonist in this genocidal campaign: of
shelling and aerial bombardment that had no legitimate military purpose whatsoever. It was purely
about the destruction of groups. The pleadings reveal a cumulative substantial body of evidence,
which shows a substantial disruption of parts of ethnic Cr oat groups in villages and towns across
these occupied parts. The JNA was at the heart of these operations.
(b) Genocidal crimes by Serb forces operating under the JNA’s command
44. What about Serb forces operating under the JNA’s command? In addition to the
activities of the JNA, the evidence which we have put forward shows beyond any reasonable doubt
that the Respondent’s leadership in Belgrade had direct control over Serb forces fighting alongside
the JNA. The Former President of the RSK, Milan Babić, testified to the ICTY said that
President Milošević was the “Commander in Chief” with ultimate control of the JNA and other
entities. Babić described two lines of command: [Screen on]
“One line went through the Presidency of Yugoslavia, the JNA, and the
Territorial Defence units . . . The other . . . went through the State Security Service[s]
of Serbia . . . For the most part, [he said] th ey engaged in joint operations. I know
from August 1203 onwards, it was the JNA that played a command role in these
operations.” (Emphasis added.)
45. [Screen off] The relationship of control and support was noted by the Trial Chamber in
the Martić case, which found that from August 1991 until early 1992 Croat villages “were attacked
by forces of the TO and the police forces of the SAO Krajina and . . . the JNA acting in
20Testimony of Milan Babić, 20 Nov. 2002, T. 13129-13130. - 67 -
cooperation”. The Tribunal also observed that, “these attacks followed a generally similar pattern,
204
which involved the killing and the removal of the Croat population . . .” .
46. The SFRY Federal Secretary for the Defence, Veljko Kadijević, stated that one of the
“principal ideas” behind the deployment of the JNA in Croatia was to facilitate “full co -ordination
with Serb insurgents in the Serbian Krajina” 205. Pursuant to that objective, in Banovina and
Kordun JNA General Špiro Niković issued an official order expressly subordinating all TO forces
in the region to JNA command.
47. One of the first attacks in Dalmati a provides a specific example of the JNA’s command
over local Serb forces . On 26 August 1991, the JNA attacked the Croat village of Kijevo in
conjunction with the Milicija Krajine and the local TO. The ICTY found as fact that the decision
to attack was “taken by Milan Martić in co-ordination with the JNA” 20. The Tribunal also found
that, [screen on] there was co -ordination between the JNA and the MUP” . And, expressly held
that, “the JNA was in command of the participating forces”, which included the local TO and the
207
SAO Krajina Police . This finding directly contradicts the Respondent ’s assertion that Serb
forces in the RSK only ever “fought in cooperation, and not under the command of the JNA” 208.
That is plain wrong, as a matter of finding of fact. [Screen off]
48. The JNA’ s command over paramilitaries is also reflected in the testimony of the
President of the Serbian Democratic Party in Kordun, who told the ICTY that Captain Vasiljković,
the leader of the extreme Serb paramilitary force “Captain Dragan’s Group” on which you will
hear more, also known as the Knindže or the “Knin Ninjas” “participated in co-ordination with a
tank unit” in the attack on Glina.
(c) The Respondent’s support and co-operation
49. I will say something briefly on the Respondent’s support and co- operation. The ICTY
has found as fact that the Krajina leadership “cooperated with the JNA in organizing operations on
204
Martić, Trial Chamber Judgement, para. 443.
20Martić, Trial Chamber Judgement, para. 330.
20Martić, Trial Chamber Judgement, para. 166.
207
Martić, Trial Chamber Judgement, para 167; Stanišić and Simatović , Trial Chamber Judgement, para.361.
20RS, Vol. 1, para. 503. - 68 -
the ground” 209. During the armed campaign hostilities, “the SAO Krajina leadership requested and
obtained military assistance from Serbia”. That assistance even included the establishment of a
military training camp for the Milicija Krajine . The co-operation between the JNA and the armed
210
forces of the SAO Krajina “was extensive” , the ICTY ruled.
50. Such extensive military assistance occurred within a broader framework of extensive
support and political co- ordination with Serbia and the Serbian gov ernmental authorities. The
ICTY found: [screen on]
“The SAO Krajina, and later the RSK, government which included Milan Babić
and Milan Martić, sought and received significant financial, logistical and military
support from Serbia, including from the MU P and SDB of Serbia [that is a finding of
fact] . . . [they also found as fact] that the police of the SAO Krajina were mainly 211
financed with funds and material from the MUP and the SDB of Serbia.”
(Emphasis added.) [Screen off]
(d) Serbia’s failure to prevent genocide
51. Let me move briefly to Serbia’s failure to prevent genocide. The JNA’s command and
support of TO forces and Serb paramilitaries went hand in hand with a persistent and wilful failure
to prevent countless acts of genocide. The evidenc e consistently establishes that Serb
paramilitaries operated with the full knowledge, direction and active control, save in a very few
limited and isolated exceptions.
52. The attacks and killings in the village of Vukovići are a typical example. On
212
8 October 1991 the JNA attacked the village and burned down a great number of houses . A
month later, on 7 November 1991, eight unarmed Croat civilians were shot dead in the village . In
213
Martić the ICTY found as fact that the victims were murdered because of their Croat ethnicity ,
with the intent to destroy them as such. They were destroyed by a “mixture of JNA soldiers,
209
Martić, Trial Chamber Judgement, para. 344.
210
Martić, Trial Chamber Judgement, para. 446.
21Martić, Trial Chamber Judgement, para.446.
212
Stanišić and Simatović, Trial Chamber Judgement, para. 225.
213
Martić, Trial Chamber Judgement para. 373. - 69 -
including members of a JNA special unit from Niš, as well as local armed men present in
214
Vukovići” . The ICTY findings are absolutely devastating to the Respondent’s case.
53. In support of its defence, Serbia does point to isolated instances where individual JNA
officers intervened to save Croat civilians from imminent execution or torture. And Croatia pays
tribute to each and every one of these instances of honourable, decent behaviour . Unfortunately,
the examples were rare. More to the point, these examples underscore the extent of the JNA ’s
knowledge concerning the intentions of the paramilitaries, and [their] behaviour, and the ability to
halt the killings and executions.
54. The e vidence of the JNA consciously permitting genocidal killings to take place is
irrefutable. In Lipovača , Serb paramilitaries murdered 12 Croat civilians in October and
December 1991. The ICTY ’s finding s in Martić prove the JNA was fully aware of the
paramilitaries’ intention to torture and kill Croat civilians, yet they did nothing to intervene . In
your folders and on your screen, you can see the conclusions of the judgement and the failure to
prevent: [Screen on]
The PRESIDENT: Professor Sands, we have reached 1 o’clock, but I will give you five
more minutes as the Court has taken a bit longer break , having discussed certain issues. So, you
have five more minutes.
Mr. SANDS: I am very grateful Mr. President.
The PRESIDENT: So, you have five more minutes.
Mr. SANDS: I am very grateful, Mr. President, and I promise to finish well within those
five minutes.
55. The JNA foresaw the departure of the paramilitaries and knew what would happen next.
The acts of the paramilitaries that followed were plainly attributable to the Serbian leadership who
had participated in what was found to be a joint criminal enterprise.
21Martić, Trial Chamber Judgement para. 371. The ICTY reached the same finding in Stanišić and Sim,tović
Trial Chamber Judgement, para. 85. - 70 -
56. I have already mentioned this morning how, i n some cases, the knowledge of genocidal
activity was observed and recorded . Once again, I draw your attention to the JNA intelligence
report of 13 October 1991, which you can see on your screens now. The JNA knew about the
uncontrolled genocide that was being committed. That is, 13 October 1991, in relation to the kinds
of acts that I have just been describing to you. With this document, the characterization of the acts,
knowledge of them, there is irrefutable evidence of responsibility for a failure to prevent genocide
in and around Vukovar. [Screen off]
57. Another example is the evidence of the former Serbian Chief of Security in the Federal
Secretariat for National Defence. He testified before the Bel grade War Crimes Court in 1999 and
at Slobodan Milošević’s prosecution at the ICTY . On 28 October 1991, he was informed that
paramilitaries had forced Croat civilians to walk through a minefield in Lovas and that 70 civilians
had been executed in the vill age. At a meeting at the Serbian Ministry of Defence that day,
28 October 1991, he told senior officials what paramilitaries were doing to civilians: [Screen on]
“I added that what they were doing in the villages of Lovas and Tovarnik was worse than wha t
Germans did during World War II” (emphasis added).
58. The officials present at that meeting on 28 October 1991, included a JNA General, the
Serbian Minister of Defence, the Commander of the Serbian TO, the Deputy Minister of the
National Defence of Serbia, the Minister of Defence and a General from the Serbian Min istry of
Defence. Despite explicitly drawing these issues to the Respondent ’s senior military and political
leadership, the Chief of Security explain ed that his information and warning, “were turned a blind
eye on” 215. He was mocked as “a Swabian from Kragujevac” a German from Serbia.
59. Faced with this evidence, it is difficult to see how the Respondent can dispute that by
October 1991 its senior leadership did not know that Serb paramilitaries fighting alongside the JNA
were committing acts of genocide. [Screen off]
VI. Conclusion
60. Let meclose with six brief points.
21RC, Vol. 2, Ann. 26. - 71 -
61. One, widespread and systematic attacks on groups of Croat villages were not driven by
military or political nece ssity, or by mere hostility. The intention was to destroy these groups in
part.
62. Second, Croat civilians were systematically singled out.
63. Third, that process resulted in the destruction of Croat groups in many towns and villages
across the area I have described.
64. Fourth, the programme of systematic destruction was orchestrated by the Respondent ’s
military and political organs, aided by Serb paramilitary groups.
65. Fifth, the scale and barbarity of the killings, torture and desecration, together with the use
of explicit and toxic ethnic abuse, negates any possibility that the Respondent ’s campaign was
intended merely to displace the Croat population. The evidence before you points unambiguously
to one conclusion: a specific intention to destroy parts of the Croat population, parts of groups.
66. Sixth, whatever adjective or qualifier this Court decides to take, it is impossible not to
characterize the facts revealed by the evidence as involving parts of th ose group that were either
“reasonably significant” or “considerable” or “substantial”.
Thank you for giving me five minutes more, Mr. President. That concludes our presentation
for this morning.
The PRESIDENT: Thank you, Professor Sands. Before adjourning this sitting, I am going
to give the floor to two Members of the Court who have some questions to ask. To that end, I shall
now give the floor to Judge Sir ChristopherGreenwood. You have the floor, Sir.
Judge GREENWOOD: Thank you, Mr. President. I have two questions for Croati a. The
first is just a request for clarification.
“1. Yesterday, counsel for Croatia told the Court that ‘from mid-May 1991 to
7 July 1991, the Serb Presidency did not hold any meetings’ (CR 2014/5, p. 46,
para. 11 (Crawford)). Was the intention to refer to the Presidency of the SFRY?
2. What official position, if any, did Vojislav Šešelj hold at the times that he is
alleged to have made the statements which were quoted yesterday?”
The PRESIDENT: Thank you, Judge Greenwood. The other Member of the Court with a
question is Judge Bhandari. I give him the floor. Judge Bhandari, please. - 72 -
Judge BHANDARI: Thank you, Mr. President.
“I would like to hear the Parties’ submissions regarding what probative value
the Court should give the following types of evidence:
(i) Statements of individuals that were annexed to the pleadings where the
deponent was not called as a witness at these proceedings;
(ii) Statements of individuals who were named as a witness to these proceedings
but not cross-examined by the opposing Party and therefore never appeared
before the Court;
(iii) Statements of individuals who were both named as a witness to these
proceedings and cross-examined by the opposing Party before this Court.”
Thank you.
The PRESIDENT: Thank you, Judge B handari. The text of these questions will be sent to
the Parties as soon as possible. The Parties are invited to reply orally to the questions during the
first round of oral argument and, of course, they will be free subsequently to provide their
comments on the reply of the other Party.
The Court will meet again this afternoon from 3 p.m. to hear Croatia’s witness and
witness-expert. Thank you, the Court is adjourned.
The Court rose at 1.10 p.m.
___________
Public sitting held on Tuesday 4 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)