Corrigé
Corrected
CR 2014/16
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Wednesday 12 March 2014, at 3 p.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 mercredi 12 mars 2014, à 15 heures, au Palais de la Paix,
sous la présidence de M. Tomka, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide (Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: President Tomka
Vice-President Sepúlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judges ad hoc Vukas
Kreća
Registrar Couvreur
- 3 -
Présents : M. Tomka, président
M. Sepúlveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
MM. Vukas
Kreća, juges ad hoc
M. Couvreur, greffier
- 4 -
The Government of the Republic of Croatia is represented by:
Ms Vesna Crnić-Grotić, Professor of International Law, University of Rijeka,
as Agent;
H.E. Ms AndrejaMetelko-Zgombić, Ambassador, Director General for EU Law, International Law
and Consular Affairs, Ministry of Foreign and European Affairs, Zagreb,
Ms Jana Špero, Head of Sector, Ministry of Justice, Zagreb,
Mr. Davorin Lapaš, Professor of International Law, University of Zagreb,
as Co-Agents;
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. PhilippeSands, Q.C., Professor of Law, University College London, Barrister, Matrix
Chambers, London,
Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Professorial Lecturer in Law,
Yale Law School, New Haven,
Mr. Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,
Ms Maja Seršić, Professor of International Law, University of Zagreb,
Ms Kate Cook, Barrister, Matrix Chambers, London
Ms Anjolie Singh, Member of the Indian Bar, Delhi,
Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London
as Counsel and Advocates;
Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,
Ms Helen Law, Barrister, Matrix Chambers, London
Mr. Edward Craven, Barrister, Matrix Chambers, London,
as Counsel;
H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,
H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the Kingdom of the
Netherlands, The Hague,
as Members of the Delegation; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
Mme Vesna Crnić-Grotić, professeur de droit international à l’Université de Rijeka,
comme agent ;
S. Exc. Mme Andreja Metelko -Zgombić, ambassadeur, directeur général de la division de droit
communautaire et international et des affaires consulaires du ministère des affaires étrangères et
des affaires européennes,
Mme Jana Špero, chef de secteur au ministère de la justice,
M. Davorin Lapaš, professeur de droit international à l’Université de Zagreb,
comme coagents ;
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l’Univers ité de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Philippe Sands, Q.C., professeur de droit, University College de Londres, avocat,
Matrix Chambers (Londres),
M. Mirjan R. D amaška, professeur de droit émérite de l’Université de Yale (chaire Sterling),
chargé d’enseignement à l’Université de Yale,
M. Keir Starmer, Q.C., avocat, Doughty Street Chambers (Londres),
Mme Maja Seršić, professeur de droit international à l’Université de Zagreb,
Mme Kate Cook, avocat, Matrix Chambers (Londres),
Mme Anjolie Singh, membre du barreau indien (Delhi),
Mme Blinne Ní Ghrálaigh, avocat, Matrix Chambers (Londres),
comme conseils et avocats ;
M. Luka Mišetić, avocat, Law Offices of Luka Misetic (Chicago),
Mme Helen Law, avocat, Matrix Chambers (Londres),
M. Edward Craven, avocat, Matrix Chambers (Londres),
comme conseils ;
S. Exc. M. Orsat Miljenić, ministre de la justice de la République de Croatie,
S. Exc. Mme Vesela Mrđen Korać, ambassadeur de la République de Croatie auprès du Royaume
des Pays-Bas,
comme membres de la délégation ; - 6 -
Mr. Remi Reichhold, Administrative Assistant, Matrix Chambers, London,
Ms Ruth Kennedy, LL.M., Administrative Assistant, University College London,
as Advisers;
Ms Sanda Šimić Petrinjak, Head of Department, Ministry of Justice,
Ms Sedina Dubravčić, Head of Department, Ministry of Justice,
Ms Klaudia Sabljak, Ministry of Justice,
Ms Zrinka Salaj, Ministry of Justice,
Mr. Tomislav Boršić, Ministry of Justice,
Mr. Albert Graho, Ministry of Justice,
Mr. Nikica Barić, Croatian Institute of History, Zagreb,
Ms Maja Kovač, Head of Service, Ministry of Justice,
Ms Katherine O’Byrne, Doughty Street Chambers,
Mr. Rowan Nicholson, Associate, Lauterpacht Centre for International Law, Unive rsity of
Cambridge,
as Assistants;
Ms Victoria Taylor, International Mapping, Maryland,
as Technical Assistant.
The Government of the Republic of Serbia is represented by:
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands, former Legal Adviser of the Ministry of Foreign Affairs,
as Agent;
Mr. William Schabas, O.C., M.R.I.A., Professor of International Law, Middlesex University
(London) and Professor of International Criminal Law and Human Rights, Leiden University,
Mr. AndreasZimmermann, LL.M. (Harvard), Professor of International Law, University of
Potsdam, Director of the Potsdam Centre of Human Rights, Member of the Permanent Court of
Arbitration,
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Professor of International Law, University of
Glasgow, - 7 -
M. Remi Reichhold, assistant administratif, Matrix Chambers (Londres),
Mme Ruth Kennedy, LL.M., assistante administrative, University College de Londres,
comme conseillers ;
Mme Sanda Šimić Petrinjak, chef de département au ministère de la justice,
Mme Sedina Dubravčić, chef de département au ministère de la justice,
Mme Klaudia Sabljak, ministère de la justice,
Mme Zrinka Salaj, ministère de la justice,
M. Tomislav Boršić, ministère de la justice,
M. Albert Graho, ministère de la justice,
M. Nikica Barić, Institut croate d’histoire (Zagreb),
Mme Maja Kovač, chef de département au ministère de la justice,
Mme Katherine O’Byrne, Doughty Street Chambers,
M. Rowan Nicholson, Associate au Lauterpacht Center for International Law de l’Université de
Cambridge,
comme assistants ;
Mme Victoria Taylor, International Mapping (Maryland),
comme assistante technique.
Le Gouvernement de la République de Serbie est représenté par :
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas, ancien conseiller juridique au ministère des affaires étrangères,
comme agent ;
M. William Schabas, O.C., membre de la Royal Irish Academy, professeur de droit international à
la Middlesex University (Londres) et professeur de droit pénal international et des droits de
l’homme à l’Université de Leyde,
M. Andreas Zimmermann, LL.M. (Université de Harvard), professeur de droit international à
l’Université de Potsdam, directeur du centre des droits de l’homme de l’Université de Potsdam,
membre de la Cour permanente d’arbitrage,
M. Christian J. Tams, LL.M., Ph.D. (Université de Cambridge), professeur de droit international à
l’Université de Glasgow, - 8 -
Mr. Wayne Jordash, Q.C., Barrister, Doughty Street Chambers, London, Partner at Global Rights
Compliance,
Mr. Novak Lukić, Attorney at Law, Belgrade, former President of the Association of the Defense
Counsel practising before the ICTY,
Mr. Dušan Ignjatović, LL.M. (Notre Dame), Attorney at Law, Belgrade,
as Counsel and Advocates;
H.E. Mr. Petar Vico, Ambassador of the Republic of Serbia to the Kingdom of the Netherlands,
Mr. Veljko Odalović, Secretary-General of the Government of the Republic of Serbia, President of
the Commission for Missing Persons,
as Members of the Delegation;
Ms Tatiana Bachvarova, LL.M . (London School of Economics and Political Science), LL.M.
(St. Kliment Ohridski), Ph.D. candidate (Middlesex University), Judge, Sofia District Court,
Bulgaria,
Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of the Prosecutor for
War Crimes of the Republic of Serbia,
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,
Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden(candidate)),
Mr. Georgios Andriotis, LL.M. (Leiden),
as Advisers. - 9 -
M. Wayne Jordash, Q.C., avocat, Doughty Street Chambers (Londres), associé du cabinet Global
Rights Compliance,
M. Novak Lukić, avocat, Belgrade, ancien président de l’association des conseils de la défense
exerçant devant le TPIY,
M. Dušan Ignjatović, LL.M. (Université Notre Dame), avocat, Belgrade,
comme conseils et avocats ;
S. Exc. M. Petar Vico, ambassadeur de la République de Serbie auprès du Royaume des Pays-Bas,
M. Veljko Odalović, secrétaire général du Gouvernement de la République de Serbie, président de
la commission pour les personnes disparues,
comme membres de la délégation ;
Mme Tatiana Bachvarova, LL.M. (London School of Economics and Political Science),
LL.M. (Université St. Kliment Ohridski), doctorante (Middlesex U niversity); juge au tribunal
de district de Sofia (Bulgarie),
M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,
M. Igor Olujić, avocat, Belgrade,
M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,
M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),
M. Georgios Andriotis, LL.M. (Université de Leyde),
comme conseillers. - 10 -
The PRESIDENT: Please be seated. The sitting is open, I invite Mr. Ignjatović to continue
with his argument. You have the floor, Sir.
Mr. IGNJATOVIĆ: Thank you, Mr. President.
Alleged control of the JNA over the paramilitary units
57. This morning I have already demonstrated that JNA, even if its acts could be attributed to
the R espondent, did not have effective control over the armed forces of Krajina, within the
meaning of your jurisprudence on Article 8 of the ILC Articles. Nor did those forces were either
de jure or de facto organs of the Respondent. I will now turn to the r elationship between the JNA
and the various paramilitary groups that were participating in the armed conflict in Croatia. The
Applicant claims that the JNA had control over various volunteer and paramilitary units that
participated in the conflict. In or der, however, to prove that any action of the paramilitaries could
be attributed to the SFRY/JNA either on the basis of Article 4 or on the basis of Article 8 of the
ILC Articles on State Responsibility, the Applicant would have to prove either that the pa ramilitary
units were de jure units of the JNA or that they acted on the instructions of the JNA or under its
effective control in the course of particular operations when the alleged crimes had been
committed. The Applicant has failed to prove either of the two.
58. Both in the Memorial and in the Reply, the Applicant claims that members of volunteer
paramilitary groups were integrated into the JNA by an order of the Federal Secretariat for National
Defense of the SFRY, that is Ministry of Defence, dated 13 September 1991.
59. In its written submissions the Respondent already explained that, according to the order
of 13 September 1991, volunteers were individually integrated into the JNA, and that the order
referred to the volunteers individually, and not on the volunteer units.
60. The volunteers had to file an individual application and the relevant form was appended
to the order. The volunteers that applied would be accepted to the JNA upon a decision of an
appropriate military officer and would be assigned to a JNA unit. Such volunteers would be equal
to other JNA members. - 11 -
61. This means that for each volunteer that was integrated into the JNA there ought to be an
1
individual decision to that effect .
62. The Applicant has failed to identify, eit her in the Memorial or in the Reply, specific
instances in which volunteers were incorporated into the JNA.
63. Quite to the contrary, the documents submitted by the Applicant with both the Memorial
and the Reply show that the above order was never implem ented with respect to the volunteer or
paramilitary units, since the JNA and General Kadijević were issuing instructions that volunteer
and paramilitary units either accept the JNA command or be disarmed and removed from the
battlefield both in mid -October 2 and mid-December 1991 . The need that the Defense Secretary
himself issue such ord er, and to repeat it, clearly demonstrates that during the 1991 conflict JNA
did not control paramilitary formations.
64. In order to compensate for the obvious lack of evidence that volunteer and paramilitary
units were integrated in the JNA, the Applicant refers to the findings of the ICTY in the Mrkšić and
Martić judgements. However, neither of the two judgements confirms that the volunteer or
paramilitary units were integrated in the JNA collectively.
65. The Martić judgement is rather scarce on this issue, since it only occasionally mentions
paramilitary units, without analysing their status or relation to the JNA and other forces
participating in the conflict. However, this judgement also illustrates that the paramilitary units
were at times confused with the “official” units of the SAO Kraji na. Thus, one of the witnesses,
quoted by the Trial Chamber in the judgement, identified “reserve forces, Martić’s troops or
Martić’s army” as paramilitary forces, saying that for him “a paramilitary unit is the same thing as
4
a reserve force or the TO” .
66. The Trial Chamber in Mrkšić devoted more attention to the status of volunteers and
paramilitary units and, what is very significant as it confirms the Respondent’s position, made a
1
See CMS, paras. 649-650.
2RC, Ann. 67, Command of the 1st Military District, Strictly Confidential No. 1614-82 27, 15 Oct. 1991.
3MC, Ann. 74, Federal Secretariat for National Defence, Order of 10 Dec.1991.
4
Prosecutor v. Milan Martić, Judgement, 12 June 2007, para. 203. - 12 -
clear distinction between individual volunteers and volunteer (paramilitary) units. According to the
Chamber, there were first: [Screen on]
“individuals who were not subject to military service and who had been accepted and
had joined the armed forces at their own request. In this way volunteers became either
members of the JNA or TO. The volunteers had the same rights and duties as the
other military personnel and conscripts.” 5
On the other hand:
“While individuals could and did volunteer in this way, it was also common for
volunteer units to be formed under the auspices of organisations such as political
parties or trade unions and for these units, trained and equipped, to present for
voluntary service, usually as TO. These often wore distinguishing emblems.
Volunteers, especially volunteer units, were often referred to as paramilitaries . . .” 6
67. In the rest of the Mrkšić judgement, the Trial Chamber continued to refer to the
paramilitary units almost always together with the units of the local TO and made a clear
distinction between the JNA units, on the one side, and the local TO units, volunteers and
paramilitaries on the other 7. [Screen off]
68. Accordingly, neither the Martić nor the Mrkšić judgements confirmed that paramilitary
units had been integrated in or had been treated as part of the JNA and accordingly the
responsibility of the JNA/SFRY for their actio ns cannot be based on Article 4 of the ILC Articles
on State Responsibility.
69. In as much as some individual volunteers might have been accepted in the JNA, they
should indeed be regarded equal to the JNA members. However, the Applicant has failed to show
that any of the individual volunteers had been accepted in the JNA or that any of those integrated
volunteers had committed any crime.
70. Concerning the possible attribution of the alleged crimes committed by paramilitaries to
the JNA/SFRY on the basis of Article 8 of the ILC Articles on State Responsibility, all that is said
above with respect to the alleged responsibility of the JNA for the actions of the formal forces of
Croatian Serbs (Ministry of Interior, Territorial Defence and Milicija Krajin e) equally applies here.
Therefore, the findings of the Trial Chamber in Martić remain inconclusive as to this issue, since
5
Prosecutor v. Mrkšić et al., Judgement, 27 Sept. 2007, para. 83.
6Ibid.
7
See RS, para. 506. - 13 -
the Trial Chamber did not precisely identify either the exact crimes committed by paramilitary
units or whether any of the crimes had been committed under the effective control or under the
instructions of the JNA . 8
71. On the other hand, the Trial Chamber in Mrkšić did analyse, in great detail, the crimes
found to have been committed and the relations of the JNA and Mile Mrkšić towards the crimes.
In this regard, however, all that is said above with resp ect to the TO units equally applies to
paramilitaries and it is submitted that the crime at Ovčara, committed jointly by local TO and
paramilitary units, cannot be attributed to the JNA/SFRY on the basis of Article 8 of the ILC
Articles on State Responsibility.
72. The Applicant suggests that there were around 32 different “volunteer” groups operating
in different parts of Croatia. However, for the vast majority of these groups the Applicant only
provides their alleged names. There is not a single piece of information, let alone evidence, of any
specific action associated with the majority of these groups. There is also not a single piece of
evidence in support of an alleged relationship between these groups and the JNA.
73. In relation to this issue, t he Memorial primarily relies on two sources 9. The first source
is a list and information concerning “32 different volunteer paramilitary units” which was provided
by and this is how it is referred to in the Memorial “Croatian intelligence sources”. N o
further information about the “Croatian intelligence sources” was given in the Memorial. Once
again we have an issue with the quality of evidence being provided and its probative weight, given
that the Applicant is trying to prove one of its own claims with another of its claims. We believe
that all claims supported by this type of evidence, in particular the allegation concerning the
10
“32 different volunteer paramilitary units”, should be considered as unproven .
74. The second source relied on by the Applicant is the Final Report of the United Nations
Commission of Experts established pursuant to Security Council resolution 780 (1992), specifically
its annex dealing with special forces. The Experts’ Report, including the annex in question, does
not pr ovide evidence that could satisfy a high standard of proof as required in the present
8
See RS, paras. 489-493 and 508.
9See Memorial of Croatia (MC), para. 3.47.
10
CMS, paras. 638-640. - 14 -
proceedings. This was the position that the Serbian Government also highlighted in the Bosnia
case. Charges of exceptional gravity, such as genocide, must be proved by evidence that is “fully
conclusive” . Contrary to that, according to the Experts’ Report invoked by the very Applicant,
12
the Commission of Experts “was not able to verify much of the information that it received” .
Moreover, “[i]t was not the Commission’s intention or part of its responsibility to prepare cases for
13
criminal prosecution” . It is therefore submitted that the United Nations Commission of Experts’
Report cannot be considered as a reliable source of evidence in the present proceedings, unless its
14
allegations were somehow confirmed in criminal proceedings before the ICTY .
75. Contrary to this, the Applicant is of the opinion that it has done everything possible to
identify all relevant groups. During its oral presentations last week, it remin ded the Court that the
evidence pertinent to particular groups is set out in the paragraph 9.78 of the Reply 15. This is a bit
of a surprise since the paragraph in question covers only three matters related to the responsibility
of the FRY for the acts of p aramilitary groups. The Applicant first claimed that “there is clear
evidence that Arkan’s Tigers were controlled by the MUP [Ministry of the Interior] of Serbia” and,
second, that “the evidence discloses a particularly close connection between Arkan and the FRY
leadership”. Both of these claims, however, became obsolete when the ICTY in the Stanišić case,
2013 judgement, found that the Serbian State Security Agency (hereafter “DB”) did not direct the
Serbian Voluntary Guard (SDG) or differently known as “Tigers”, in Eastern Slavonia in 1991 16.
The third Applicant’s claim is related to the JNA order dated 13 September 1991 and it has already
been addressed.
76. So, as an example, what is the position that the Applicant could use this testimony and
other evidence from last week that the Court heard? Last week we have heard the testimony about
a so-called “Silts group” which had committed crimes with lucrative motives. Croatia provided
evidence that the Silts group was killing people irrespective of their ethnic origin just to acquire
1Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 129, para. 209.
12
CMS, paras. 638-640.
1Ibid.
1Ibid.
15
CR 2014/10 p. 46, para. 35 (Crawford).
1Stanišić and Simatović, IT-03-69, Judgement, 30 May 2013, para. 1789. - 15 -
17
their possessions . Again, no single piece of evidence has been provided that shows that the JNA
was in any way involved in those crimes. Yet, the Applicant claims that such crimes could be
attributed to the JNA, and consequently to the Respondent, on the basis of an established principle
of unity and singleness of command in Mrkšić . With all due respect, this argument is too vague.
77. The Applicant’s case is obviously suffering from a lack of credible and convincing
evidence regarding the paramilitary units and their relations with the JNA.
78. The Applicant claims that t he test of “overall control” is not being invoked here 18, but
this is exactly what the Applicant is doing attempting to introduce the “overall control” test.
Only, this time, the Applicant is trying to do so under the disguise of the effective control te st.
Nonetheless, regardless of how the Applicant refers to it, in essence we are still talking about the
overall control test. Application of this test was rejected by this Court in the 2007 Bosnia
Judgment and there is no reason for the Court to take a different approach now.
79. The Applicant also refers to the finding of the Trial Chamber in Martić that
Vojislav Šešelj, Serbian politician whose volunteers participated in the conflict in Croatia, was
party to the joint criminal enterprise together with JNA Generals Veljko Kadijević and
BlagojeAdžić, together with Slobodan Milošević and others, and seeks to draw the proof of
attribution from this finding 19.
80. The Respondent does not dispute that the Trial Chamber in Martić indeed found that
Šešelj was party to the joint criminal enterprise. However, as in the case of Generals Kadijević and
Adžić, the Trial Chamber did not explain in a single sentence in which way Šešelj had participated
in, or contributed to, the joint criminal enterprise. Apart from the paragraph which lists Šešelj as
one of the members of the joint criminal enterprise, the judgement mentions him on only two more
occasions, both times with respect to the same incident Šešelj’s alleged visit to the old hospital
in Knin, where Croat detainees were being held, during which he allegedly insulted them by asking
“how many Serbian children they slaughtered, how many mothers” 20. The judgement, on the other
17
MC, statements, Anns. 260 and 263.
18CR 2014/10, p. 47, para. 37 (Crawford).
19Reply of Croatia (RC), para. 4.106.
20
See Prosecutor v. Martić, Judgement, 12 June 2007, paras. 288 and 416. - 16 -
hand, does not contain a single reference to the Šešelj volunteer units. It is thus submitted that the
findings of the Trial Chamber in Martić on the alleged participation of Vojislav Šešelj in the joint
criminal enterprise are inconclusive and have to be taken by the Court with a strong reserve.
81. As already stated, and I will repeat it, the Respondent does not dispute that the ICTY in
Martić concluded that the JCE has existed. However, the developments which occurred after the
Martić decision to a large extent reduced the importance and reliability of the above conclusion.
Alleged members of the JCE Stanišić and Simatović were acquitted by the ICTY Trial Chamber,
Slobodan Milošević died before the end of the ICTY proceedings, Generals Kadijević and Adžić
were not even indicted, the proceedings against Vojislav Šešelj is not over after more than 11 years.
Eleven years of trial, 11 years with detention, some trial. It is also important to mention, although
not indicted for the JCE, General Perišić, the former chief of staff of the VJ, was acquitted on all
counts of the ICTY indictment, including those related to Croatia. So what is left of the JCE in
Martić?
2.2. The Status of the Territorial Defence of Serbia
82. I will now turn to the status of the territorial defence of Serbia. In the Reply, the
Applicant emphasizes that the Ter ritorial Defence (TO) units from the Republic of Serbia
participated in 1991 in the conflict in Croatia, in particular in Eastern Slavonia, and seeks to engage
21
the responsibility of the Respondent on this basis .
83. The Respondent does not dispute that t he TO units from the Republic of Serbia were
under the effective control of the JNA throughout all operations that took place in Eastern Slavonia.
For that reason, any action of the TO units from Serbia should be equated to the actions of the JNA
and attributed to the JNA and, consequently, the SFRY. This further means that the actions of the
TO units from Serbia, which were fully subordinated to the JNA, cannot be attributed to the
Respondent since, for the reasons explained above, the actions of the JNA cannot be attributed to
the Respondent either on the basis of Article 4 or on the basis of Article 8 of the ILC Articles on
State Responsibility.
2RC, paras. 4.78-4.84. - 17 -
2.3. Alleged control of the Respondent over the forces of Croatian Serbs and the
paramilitaries
Alleged control before 27 April 1992
84. I will now turn to the alleged direct control of the Respondent over the forces of Croatian
Serbs and the paramilitaries, and first address the alleged control before 27 April 1992. As a matter
of fact and as a matter of law, Respondent cannot bear any responsibility for any of the events that
took place before 27 April 1992, that is, before the FRY came into existence as a State.
Nevertheless, for the sake of the completeness of this analysis and ex abundanti cautela, the
Respondent will address some of the claims raised by the Applicant.
85. The Respondent does not deny that the leadership of the Republic of Serbia at the time,
headed by Slobodan Milošević, publicly or covertly, politically, and financially, supported the
establishment of the Serb territorial autonomy in Croatia. However, this political or financial
support does not make the organs established by the Croatian Serbs either de jure or de facto
organs of the Republic of Serbia and the Applicant has failed to p roduce any credible evidence in
that regard.
86. The Applicant has equally failed to produce any credible evidence that the establishment
of the Serb territorial autonomy in Croatia or political organization of Croatian Serbs was effected
under the control or directions of the Republic of Serbia.
87. The same can be said for the Applicant’s claim that the actions of various forces of
Croatian Serbs and paramilitaries should be attributed to the Respondent. In connection to this, the
Respondent will, nevertheless, address a few points raised in the Reply.
88. The Applicant claims that the ICTY has found that the JNA and other participants in
military operations in Croatia acted under the effective control and direction of the then President
22
of Serbia, Slobodan Milošević,and the “Serb leadership” .
22RC, paras. 9.62 and 9.64. In para. 9.62, the Applicant claims that:
“The ICTY has also found that the JNA, in its turn, was operating under the direction and control
of Milošević and the other members of the Serb political and military leadership who were party to the
joint criminal enterprise.”
In para. 9.64, the Applicant claims that:
“The ICTY had found that these crimes [on Croat civilian population] were committed under the
direction and control of the JNA, and that all perpetrators participated in military operations on the
instructions of, or under the effective dir ection and control of, Milošević and the other members of the
Serb leadership for whose criminal acts the FRY is internationally responsible.” - 18 -
89. By doing that the Applicant intentionally confuses and misrepresents the other findings
of the ICTY for the reason that there is no ICTY judgement that contains the alleged finding.
90. Namely, there is absolutely no judgement of the ICTY that contains the finding that: “all
perpetrators participated in military operations on the instructions of, or under the effective
23
direction and control of” Milošević himself. Thus, it is submitted that there is no conclusive
finding of the ICTY that Milošević had effective control over any of the forces that participated in
the conflict in Croatia. Equally, there is no conclusive finding of the ICTY that Milošević
exercised the alleged effective control over the forces who committed the crimes in Croatia at the
time when the crimes were committed, or that any of the crimes were committed under his
instructions or direction.
91. As far as the rest of the Applicant’s claim is concerned, namely that: “the ICTY has
found that . . . all perpetrators participated in military operations on the instructions of, or under the
effective direction and control of . . . the other members of the Serb leadership for whose criminal
24
acts the FRY is internationally responsible.” This is both inaccurate and misleading. It is
inaccurate since it obviously refers to all persons that the Applicant sees as the part of the “Serb
leadership”, that is, Serb leaders from Croatia, such as Martić and Babić; JNA leadership
Kadijević and Adžić; and the leadership of the Republic of Serbia Milošević, in the first place.
It is misleading since it attempts to claim that the ICTY has found that the FRY is internationally
responsible for the acts of these persons, something the ICTY has never fo und as it was not its task
to do it in the first place.
92. In this way, the Applicant tries to present to the Court the question of attribution as
already solved by the ICTY, while in truth the judgements of the ICTY do not confirm that any of
the crimes committed in Croatia can be attributed to the Respondent on the basis of the relevant
articles of the ILC Articles on State Responsibility and the Court’s practice in that regard.
93. Apart from this, the Applicant offers very few documents in support for its occasional
claims that the Respondent controlled the forces of Croatian Serbs and paramilitaries. Some of the
evidence relates to training of the forces of Croatian Serbs Krajina MUP in the first place by
23RC, para. 9.64.
24Ibid. - 19 -
instructors coming from the Serbian MUP, some to the assistance in weapons and other material
which Serbia provided to Croatian Serbs for the establishment of their armed forces again to
Krajina MUP in the first place and some to the alleged links between paramilitary leaders
primarily Arkan and the leadership of the Republic of Serbia.
94. The Respondent in general does not dispute that Serbia provided some support to the
Croatian Serbs for the establishment of their armed forces. However, this support, which took the
form of occasional combat training and the occasional provision of weapons and other material, is
not enough to consider the forces established in Serb autonomous regions in Croatia as either
de jure or de facto organs of Serbia, since it clearly does not amount to “compl ete dependence” in
terms of the Court’s findings in the Bosnia Judgment. Equally, the occasional combat training and
the occasional provision of weapons does not prove that the Republic of Serbia had or exercised
effective control over the forces of Croat ian Serbs at the time when these forces were engaged in
combat operations and in particular when some of these forces committed crimes against Croatian
population.
95. The Respondent’s position is supported by the ICTY judgement in Stani šić and
Simatović which inter alia reads as follows: [Screen on]
“As for the SAO Krajina TO, in the absence of evidence in this respect, the
Trial Chamber is unable to conclude that the Accused directed and organized any
other support or assistance to the SAO Krajina TO, besides the logistical support . . .”
and that the Trial Chamber is “unable to conclude that the Accused directed and organized the
formation of the SBWS police and TO units” as well as that the Trial Chamber is “unable to
conclude that t he Accused directed and organised the financing of the SBWS police and TO
25
units” .
96. As far as the activities of late Željko Ražnatović, a.k.a. “Arkan”, are concerned, the
Respondent accepts that Arkan and his paramilitary group participated in armed conflicts on the
territory of the former Yugoslavia. It should be, however, noted th at, before he died in 2000,
26
Arkan was indicted by the ICTY, but not in connection with any event that took place in Croatia .
[Screen off]
2Stanišić and Simatović, IT-03-69, Judgement, 30 May 2013, paras. 2214, 2236 and 2260.
2See Željko Ražnatović “Arkan”, IT-97-27, Indictment. - 20 -
97. The Applicant’s claims that there is “overwhelming evidence of Arkan’s ties with the
Governments of Serbia and the FRY” is wholly without substance as it contains no source
whatsoever for this “overwhelming evidence” . 27
98. The nature and the extent of the connection between Arkan and the leadership of Serbia
has never been determined. Nevertheless, even if some p olitical connections of Arkan and the
leadership of Serbia existed, this is still far from the proof of the “complete dependence” and does
not make Arkan and his unit either de jure or de facto organs of the Respondent. Likewise, the
Applicant has offered no evidence that the Respondent had or exercised effective control over
Arkan and his unit at the time when they were engaged in combat operations and in particular
when and if they committed crimes against Croatian population.
99. The Respondent position that there was no effective control over Arkan and his unit
the Serb Volunteer Guard, known also as “Tigers”, is supported by the fact that the ICTY Trial
Chamber has acquitted Jovica Stanišić and FrankoSimatović of all charges including those related
to the activities of Arkan and the Serb Volunteer Guard. Just to remind the Court, Jovica Stanišić
was the head of the State Security Service (DB) of the Ministry of Internal Affairs of the Republic
of Serbia (MUP) and Franko Simatović was one of the employees of the Serbian State Security
Service (DB) at the relevant time.
100. The Trial Chamber concluded [screen on] “that neither in and of itself, nor
cumulatively, does the evidence rise to a level sufficient to establish that the Serbian DB [Sta te
Security Service] or Stanišić directed the involvement of the SDG (Serbia Volunteer Guard) in the
28
SAO SBWS [Slavonia, Baranja and Western Sirmium] in 1991” , and that
“it has received insufficient evidence to show that the Accused directed the SDG in
the Banja Luka operations in 1995. [Banja Luka in Bosnia] The Trial Chamber finds
that without further evidence, the mere fact that the Accused were invo29ed with the
Serbian Volunteer Guard in other ways does not affect this finding.”
101. So for the whole period of war, both in Croatia and in Bosnia-Herzegovina there was no
responsibility for the Serbian Volunteer Guard on the side of the Serbian MUP. The
27
See MC, para 3.52 and CMS, para. 646.
2Stanišić and Simatović, IT-03-69, Judgement, 30 May 2013, para. 1789.
29
Ibid., para. 1812. - 21 -
above-mentioned, among many other findings, clearly show that the Respondent did not exercise
effective control over the SDG. [Screen off]
2.4. Alleged control of the Respondent over the RSK and its armed forces after
27 April 1992
102. Since the Applicant did not even mention this issue in its oral arguments, the
Respondent stands by the positions and the arguments expressed in its written submissions.
Allow me, Mr. President, to conclude.
Conclusion
103. On the basis of the above-mentioned arguments, it is submitted that:
first, the Respondent cannot, as a matter of fact and as a matter of law, be held responsibl e for
any alleged violations of the Genocide Convention that took place before 27 April 1992;
two, in any case, the Applicant has failed to prove that any action or any crime, allegedly or
truly committed by the JNA, can be attributed to the Respondent on the basis of the ILC
Articles on State Responsibility and the relevant practice of the Court;
and three, the Applicant has equally failed to prove that any action or any crime, allegedly or
truly committed by the forces of Croatian Serbs or paramilitary units, can be attributed to the
Respondent on the basis of the ILC Articles on State Responsibility and the relevant practice of
the Court, either directly or through the Respondent’s alleged control over the JNA.
3. Alleged violation of the obligation to prevent and punish the crime of genocide
3.1. Obligation to prevent
104. As to the obligation to prevent, in accordance with the Court’s Judgment in the Bosnia
case, the question of an obligation to prevent comes into play only if the Court finds that:
(a) genocide was committed; (b) it was however not committed by organs or persons whose
conduct is attributable to the Respondent; (c) the Respondent could not be held responsible for
complicity in genocide; (d) the Respondent was aware of the possibility that genocide would be
committed, but failed to take reasonable action to prevent it; and (e) the Respondent was in a
position to influence the actions of the principal perpetrator or perpetrators. - 22 -
105. The Respondent has already convincingly demonstrate d that neither genocide, nor any
other act prohibited by the Genocide Convention were committed against Croats, which leads to
only one possible conclusion the Respondent has not violated its obligation to prevent genocide.
106. Finally, given that all the evidence referred to by the Applicant in the relevant section of
30
the Reply relates to events from 1991, consideration of the Respondent’s potential responsibility
for those events is also precluded by the fact that the Respondent did not exist as a S tate prior to
27 April 1992.
3.2. Obligation to punish
107. The Respondent has demonstrated that it cannot be held responsible for failure to
punish those responsible for committing genocide given that neither genocide, nor any of the acts
enumerated in Article III of the Genocide Convention, have been committed.
108. Furthermore, the Respondent has shown that, even if the Court were to find that some
of the acts prohibited by the Genocide Convention were committed quod non the Respondent
could still not be held responsible for failure to punish since the alleged crimes did not take place
on its territory nor has anyone ever been charged by the ICTY for genocide committed against the
31
Croatian national, ethnic, or religious group .
109. Relatedly, the Applicant’s claim that the Respondent has violated its obligation to
punish genocide by failing to arrest Goran Hadžić, former high official of the Serbian community
in Croatia, has since become obsolete as Mr. Hadžić was arrested in Serbia in July 2011, and
transferred to the ICTY. The Respondent however notes that Mr. Hadžić was never charged with
genocide by the ICTY.
Co-operation with the ICTY
110. The Respondent did and continues to co- operate with the ICTY in its cases, and has
facilitated transfer of all persons charged by the ICTY of crimes committed in Croatia to the ICTY.
111. The Republic of Serbia has full co-operation with the ICTY, which can be illustrated by
the following results:
3RC, paras. 9.83-9.89.
3See CMS, paras. 1051-1057. - 23 -
as of July 2011, there are no remaining fugitives being sought from the Republic of Serbia. All
of the defendants have been transferred to the ICTY, 45 of them, all 45.
The Republic of Serbia has responded in a timely manner to all requests for assistance (RFAs)
received from the ICTY Office of the Prosecutor (OTP), total numbers of such request being
more than 2,200.
The Republic of Serbia has also acted upon nearly all RFAs received from legal defence teams,
total number will be more than 1,300.
Not a single request for access to State archives received either from the ICTY or a legal
defence team has been denied.
All individuals called to give testimony at the ICTY by the Office of the Prosecutor (OTP)
and/or defence teams received waivers from an obligation to maintain confidentiality.
All summonses and other documents sent by the ICTY have been distributed to intended
recipients residing in the territory of the Republic of Serbia where there is full jurisdiction.
All ICTY requests for witness protection have been met in cases where witnesses in question
were residing in the territory of the Republic of Serbia where there is full jurisdiction.
112. Confirmation of Serbia’s excellent co -operation can be found in regular biannual
reports submitted by the ICTY officials to the United Nations Security Council and discussed every
June and December. These reports continuingly contain a positive evaluation of co- operation
between Serbia and the ICTY.
113. As an example, the Report presented by the Prosecutor of the ICTY to the United
32
Nations Security Council in June 2012 states, inter alia, that co-operation provided by Serbian
authorities had “continued to fully meet expect ations” and that: “The Serbian authorities
responded promptly and adequately to the OTP’s requests for assistance, with none presently
overdue” and that “Serbian authorities continued to adequately facilitate the OTP’s access to
witnesses, including their appearance before the ICTY” 3.
3Report of Serge Brammertz, Prosecutor of the ICTY, provided to the S ecurity Council under para. 6 of Security
Council resolution 1534 (2004), S/2012/354.
3Ibid., paras. 48-49. - 24 -
Domestic War Crimes Trials
114. As to the domestic war crimes trials, on 1 July 2003, the National Assembly of the
Republic of Serbia adopted the Law on Organization and Jurisdiction of State Bodies in War
Crimes Proceeding s, establishing specialized judicial and law enforcement entities assigned to
handling war crime cases. Since their inception, up until now, these entities have processed
410 individuals suspected of involvement in war crimes committed in the territory ofthe former
Yugoslavia, including those suspected of committing war crimes in Croatia. Proceedings against
such individuals are in various stages at the moment, some are still being investigated, some are
facing trial, while in the case of some, final judgments have been rendered.
115. A total of almost 3,000 victims have been covered through ongoing and finalized cases.
Hundreds of witnesses gave testimony. Identified perpetuators of these crimes were sentenced to a
total of 1,151 years in prison.
116. All of the above undoubtedly shows that the Respondent is making efforts to try and
punish persons responsible for crimes committed during the armed conflicts in former Yugoslavia.
At the end, I would like to thank the Court for its patience and, Mr. P resident, may I kindly invite
you to give the floor to Mr. Obradović.
The PRESIDENT: Thank you very much, Mr. Ignjatović, and I call on the Agent,
Mr. Obradović. You have the floor, Sir.
Mr. OBRADOVIĆ:
T HE A PPLICANT ’S ARGUMENTS ON SERBIAN EXPANSIONISM
1. Introduction
1. Good afternoon. Mr. President, distinguished Members of the Court, the next part of our
presentation in response to the Applicant’s claim is related to the allegations on the existence of the
idea of a Greater Serbia. The Applicant is persistent in its attempt to replace the presentation of
evidence relevant for the existence of the dolus specialisof the crime of genocide with more
attractive discussion on a Greater Serbia more attractive for the domestic political theatre, at
least. - 25 -
2. The Applicant tries to impute political ideas of Serbian oppositional politician,
Vojislav Šešelj, to the leadership of the Republic of Serbia at the time of the dissolution of the
former Yugoslavia, and to equate Šešelj’s ideological concept with the aim proclaimed by the
deceased President of Serbia, Slobodan Milošević, that all Serbs should continue living in one
State, as his view to the political solution of the Yugoslav crisis which would be, according to him,
acceptable to the Serb people 3. It seems that, for the Applicant, such a political goal was criminal
by itself. Moreover, the Applicant is eager to expand its thesis to the conclusion that the Serbs, by
their nationalistic politics in the 1990s, broke out the Federal Yugoslavia. According to the
Applicant, it was not Croatia who separated from Yugoslavia; no, we should believe, after all, that
Milošević organized “a movement”, pursuant to Article 10, paragraph 2, of the ILC Articles on
State Responsibility, aiming at the establishment of the FRY, a new State, rather than the
preservation of the existing one, i n which all Serbs had already lived together. That alleged
movement should be the Applicant’s exit strategy for claiming the attribution of the responsibility
to the new State which did not exist at the time when most of the crimes described in the Memorial
were conducted 35.
3. We cannot agree with this misleading presentation of our joint history. People in the
former Yugoslavia, including Serbia and Croatia, do not believe in such presentation and could not
be misled. In order to assist the Court, I will present the arguments well known to all nations in the
former Yugoslavia, showing that the argument of the Applicant does not exist in reality.
4. I will further demonstrate the following:
first, the idea of a Greater Serbia cannot cure by itself the lack of evidence for dolus specialis
of the crime of genocide;
second, the Applicant has not produced the convincing evidence that the leadership of Serbia
had ever shared the idea of a Greater Serbia of Vojislav Šešelj and his Serbian Radical Party;
third, the Applicant actually tries to wipe out any distinction between the idea of a Greater
Serbia and Yugoslavia;
34RC, paras. 3.34- 3.40; Testimony of the expert witness Ms Sonja Biserko ; CR 2014/10, p. 48, para. 38,
(Crawford).
35
RC, paras. 7.43-7.72. - 26 -
fourth, in the situation of the dissolution of the Federal State, the claim of the Serbs from
Croatia for its own entity, or for their unity with other Serbs, cannot be seen as a criminal plan,
let alone a conspiracy for genocide; and
fifth, the national strategy of the Croatian President Tudjman was nothing else but a policy of a
Greater Croatia.
2. The idea of a Greater Serbia did not include the genocidal intent
5. In the 1990s in Belgrade, one could freely buy in the street shops a magazine “Greater
Serbia” published by the Serbian Radical Party. The President of that oppositional party,
Mr. Vojislav Šešelj, voluntarily surrendered to the ICTY in 2003. He was accused as a member of
an alleged joint criminal enterprise aimed at forcible transfer of the non -Serb population. Among
the Prosecutor’s allegations on his individual criminal liability, the Court can find a claim that
Šešelj pro pagated “a policy of uniting ‘all Serbian lands’ in a homogenous Serbian State” 3.
However, after 11 years, the Accused is still in the United Nations Detention Unit defending
himself, and waiting for the trial judgement under the legal presumption of inno cence. He is still
proud of his concept of Greater Serbia and promotes it during the trial. The Government of the
Republic of Serbia expressed its serious concern several times about respect for his procedural
rights, taking into account how long he was detained and how time-consuming his trial was.
6. Yet, there is something more important for the subject -matter of this case. Namely,
Mr. Šešelj has never been accused for genocide. He is accused for the crimes against humanity
persecution, deportation and inhuman acts, as well as for the violations of the laws or customs of
war.
7. The political ideas are criminal only if they include the legal elements of certain crimes.
The Applicant has not shown that the idea of a Greater Serbia of Mr. Šešelj was connected with
intent to destroy other national or ethnic groups, as such. If the Applicant did not agree with the
ICTY Prosecutor, it could easily provide to the Court any of Šešelj’s magazines from the 1990s in
which the dolus specialis of the crime of genocide was shown, but we cannot see such evidence in
the case file because it never existed.
3Available at: http://www.icty.org/x/cases/seselj/cis/en/cis_seselj_en.pdf. - 27 -
3. No evidence that the Serbian leadership accepted Šešelj’s political program
8. Furthermore, whatever the outcome of Šešelj’s odd trial at the ICTY, the Applicant has
not presented convincing evidence that the Serbian leadership at the time relevant for the
subject-matter of this case accepted the political program of the Serbian Radical Party. Šešelj and
37
Milošević were political adversaries . I do not need to defend Milošević’s politics now, but it is a
fact that neither he nor anyone from his Socialist Party of Serbia has ever mentioned the line
Karlobag-Ogulin-Karlovac-Virovitica, proclaimed by Mr. Šešelj as a desirable border with
38
Croatia . The attit ude of the expert -witness of the Applicant for nationalism, that Šešelj was an
alter ego of Milošević, is only an attractive exaggeration of the political situation in Serbia of the
1990s that can be easily sold in the western market.
9. The Applicant m isleadingly unifies Šešelj’s concept of Greater Serbia with the
Milošević’s political aim, that all Serbs should continue living in one State. The Milošević’s policy
was created as a reaction to the separatist movement of Tudjman’s Government. By finding the
aspirations of the JNA General Staff towards keeping the Yugoslav Federation unrealistic,
Milošević called for the creation of a new Yugoslavia, made up of those peoples who really wanted
to live in it3.
10. In the Memorial, the Applicant cites the f ollowing words from the book of Milošević’s
political speeches:
“The solution for the problem in Yugoslavia would be provided by the policy to
which the majority of the people in this country [the SFRY] has committed itself . . .
[T]he people will live in a single state, on an equal basis, with greater affluence and a
40
richer culture.”
By this quote, the Applicant actually offers to the Court a proof that Milošević, in 1989 at least
when his book was published, was strongly in favour of keeping Yugoslavia. What was criminal in
his words quoted in the Memorial?
37
See, Milošević, IT-02-54, Testimony of Witness Vojislav Šešelj, Transcripts, 7 Sept. 2005.
38RC, para. 3.36.
39
Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military H istory of the Yugoslav Conflict
1990-1995, Washington DC, 2002, Vol. I, Chap. 11, p. 98 (the Peace Palace Library); see also, Laura Silber & Allan
Little, The Death of Yugoslavia, Penguin Books, BBC Books, 1997, pp. 186- 187.
40
Memorial of Croatia (MC), para. 2.62, with the quotation from Slobodan Milošević, Godine raspleta (The Years
of Denouement), 1989, 5th ed., p. 261. - 28 -
11. That was not all. The Applicant also quoted the BBC interview with President Milošević
given in January 1991 in which he stated:
“we hold that each nation has the equal right to decide freely about its destiny. Such a
right can be constrained solely by the same, equal right of other nations. . . . The
Serbian nation will live in one State and every nation wanting to live with the Serbian
people in the same State on an equal basis is welcome . . .” 41
It is really difficult to recognize genocidal intent in these words. After all, what was criminal in
this political view quoted by the Applicant?
12. Moreover, the Applicant acknowledged in the Memorial that at the beginning of
November 1991, M ilošević agreed with the deployment of the UNPROFOR in Croatia although
heavy fighting was continuing 42. The Applicant also recognized that Serbs from Croatia accepted
43
the United Nations peace plan after strong pressure from Belgrade . One of the main concerns of
the Serb leaders in Croatia was the reference contained in the plan to the United Nations Protected
44
Areas as being “in Croatia”, because it prejudged the political solution of the conflict . However,
that was Milošević who pressed the leaders of Serbs in Croatia to accept the plan. His political
action could not be seen as a realization of the alleged plan for Greater Serbia.
4. The Applicant equates the idea of Greater Serbia with Yugoslavia
13. Indeed, it seems that the Applicant quotes all th ese statements in order to prove that
Milošević was for Yugoslavia, which was nothing else, from the Croatian extremely nationalistic
point of view, but a Greater Serbia. That was one of the leading ideas of the 1971 Croatian
Maspok, also known as the Croatian Spring movement. One of the Croatian extreme nationalists
of that time, Šime Djodan, published an article in which it was advocated that “the Yugoslav nation
is essentially belonging to the Serbian nation, considering that, in the final political analysis,
Yugoslavianism, in the national sense, is ‘great Serbianism’” 4.
In the 1990s, Djodan became a minister in the Croatian Government.
41
MC, para. 2.65.
42Ibid., para. 2.119.
43Ibid., para. 2.125.
44
Further Report of the Secretary -General pursuant to SC resolution 721(1991), S/23513, 4 Feb. 1992, p. 5,
para. 12.
45
Rejoinder of Serbia (RS), para. 23, ft. 35. - 29 -
14. It seems that the Croatian Memorial is full of similar feelings. In paragraph 2.83 of the
Memorial, the Applicant describes a rally of the local Serbs in Petrova Gora “near the well -known
Partisan monument”. The Memorial points out that “[e]very reference to Yugoslavia, the JNA or
Serbia was greeted with euphoria. They read out a message to the Serbian public [sic]: ‘we
dismiss all individual dreams of a confederation and this is the last warning for those who want to
destroy Yugoslavia . . .’” Thus, it seems that in 1990 in Croatia it was considered as a misdeed —
according to the Memorial — if someone greete d Yugoslavia and JNA with euphoria. Is it
criminal today if someone in Scotland greets the United Kingdom? According to the Applicant’s
view expressed in this case, that individual can be seen as a promoter of the idea of a Greater
England.
15. One can ask why the Serbs from Croatia liked Yugoslavia so much and why they were so
strongly against the restructuring of the Federal State into the confederation. The answer is
complex. Living in Croatia, in Krajina, in Lika, those Serbs for decades had the fe eling that they
lived in their country called Yugoslavia, for which freedom their predecessors fought. The Serbs
in Croatia had the exceptional national rights. The 1974 Constitution of the Socialist Republic of
Croatia as an integral part of Yugoslavia reads that “The Socialist Republic of Croatia shall be a
national State of the Croatian people, the state of the Serbian people in Croatia and the State of
46
national minorities living in it.” Thus, that was their Republic, as well as the Republic of the
Croat majority.
16. That unique position of the Serb people in Croatia was based on their national tragedy in
World War II, as well as on their contribution in the fight for freedom. T he first Croatian socialist
government adopted, at its session on 11 April 1945, the declaration which stated as follows:
“The national government of Croatia considers its duty to emphasize an
enormous participation of Serbs from Croatia in the common struggle against the
occupiers and their lackeys and to single out thei r role as elite fighters, as well as the
assistance they gave in standing up the Croatian people to arms. The national
government of Croatia will bear it in mind and make sure that the first item of the
‘Declaration on the basic rights of people and citiz ens of democratic Croatia’ to
equality of Croats and Serbs is respected.” 47
46The 1974 Constitution of the Socialist Republic of C roatia, Art. 1, para. 2.
47This declaration is quoted in Velimir Ivetić, Srbi u antifašističkoj borbi na područjima NDH 1941- 1945. (Serbs
in the Anti-fascist Struggle on the Territory of the NDH 19-1945), Vojnoistorijski glasnik No. 1, Belgrade, 1995,
p. 150. - 30 -
That was written in 1945.
17. Now, it is difficult to imagine a nation who would like to change such a position for
something smaller. And how much smaller? That answer is also complex. On 24 February 1990,
at the First Congress of the Croatian Democratic Union (HDZ) held in Zagreb, the Party President
Dr. Franjo Tudjman stated:
“Our opponents see nothing in our program but the claim for the restoration of
the independent Croatian Ustasha State. These people fail to see that the State was not
the creation of fascist criminals; it also stood for the historic aspirations of the
Croatian people for an independent State. They knew that Hitler planned to build a
new European order.” 48
18. Mr. Karl Pfeifer, Austrian journalist and prominent activist against neo -Nazism, in his
article “Tudjman and the genesis of Croatian revisionism” criticizes the methodological approach
of Dr. Tudjman, the historian, in the following way:
“Tudjman’s patently selective choice of data reduces to the barest minimum the
number of victims of Croatian Nazism, especially Serbs, with the claim that ‘in fact
only several thousand (probably 3,000- 4,000) prisoners of Jasenovac camp were
49
killed, mostly Gypsies, followed by Jews and Serbs, and also Croats’.”
19. Could anyone reasonably expect that after Tudjman’s electoral victory in 1990, the Serbs
in Croatia would peacefully accept the separation of Croatia from the Federal Yugoslavia? In
December 1990, by adoption of the new Croatian Constitution, the Serbs lost their position as a
constitutional element of the Croatian Republic; they became a national minority 50.
20. According to the opinion expressed in the CIA Report which can be found in the
Peace Palace Library:
“These legislative moves discriminatory in their wording, ill -considered in
their timing, and occasionally reminiscent of the Fascist NDH State were
eventually to spark a counter -secessionist backlash among the Serbs and move both
sides along the path to civil war in Croatia.” 51
21. That was not the worst. This is how Karl Pfeifer described Tudjman’s new society:
“Tudjman’s personal responsibility for the promotion of Croatian revisionist
historiography has to be placed alongside his even greater responsibility for being the
48
Laura Silber and Allan Little, The Death of Yugoslavia, Penguin Books, 1995, p. 86.
49Counter-Memorial of Serbia (CMS), Ann. 10.
50See MC, para. 2.27, and CMS, paras. 456 – 472.
51
Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military His tory of the Yugoslav Conflict
1990-1995, Washington DC, 2002,Vol. I, Chap. 6, p. 81. - 31 -
main patron of revisionism in political and public life. Military terminology, the
terminology of government documents and the new names given to State institutions
were a further sign of continuity with the NDH [independent State of Croatia]. Under
Tudjman, monuments and memorials (2,964 in all) to fighters killed in National
Liberation Struggle of the Second World War and to victims of Ustasha and Nazi
terror were destroyed or removed. Streets, army barracks and institutions in various
towns were named after Ustasha officials and army commanders. Worse, notorious
Ustasha songs became part of public celebrations and other events.” 52
22. On 25 January 1991, the secret movie of the JNA counter -intelligence service called
“The Truth about the Armament of the HDZ in Croatia” was broadcasted. Yugoslavia could see
Croatian Minister of Defence Martin Špegelj talking on the preparation for killing JNA officers 53.
On 22 February 1991, rallies in Split, Zagreb and Vi rovitica sent a message to Krajina: “This is
Croatia, Serbs out!” Croatian Government thus commenced preparation for its secessionist war,
which would be described ironically, eight years later, as a genocidal campaign of Serbia.
Although, that view cannot be found easily in the books of the relevant Croatian historians; it was
kept exclusively for this Court.
5. The borders issue
23. It seems also that the Applicant, in its written pleadings, wishes to distress the Court with
the picture of Krajina S erbs separatism from Croatia as something criminal per se, but not at all
with the previous Croatian demand to separate from Yugoslavia. Thus, the Memorial quotes the
first leader of the Krajina Serbs, the late Jovan Rašković, who said that “for every step which
Tudjman takes distancing Croatia from [SFRY] we shall make a step towards distancing ourselves
54
from Croatia” . By this statement quoted in the Memorial, it seems that Croatia admits that the
separatist initiative was always on their side.
24. At this point, we come to the issue of the respect for the internal borders among the
former Yugoslav Republics. For Croatia, it seems that the demand for the establishment of an
entity on its territory or moreover, the possible association of that entity w ith another republic of
the former Yugoslavia, was the gravest crime that could be imagined. Croatia’s Memorial invokes
not only its 1990 Constitution, but also Article 5 of the 1974 Constitution of the former Yugoslavia
52
CMS, Ann. 10.
53MC, para. 2.97.
54
MC, para. 2.87; RC, para. 3.60. - 32 -
which provided that “boundaries be tween the Republics [might] only be altered on the basis of
mutual agreement”, while “the territory of a Republic [might] not be altered without the consent of
that Republic” . At the same time, the Applicant would not like to see the preceding part of th e
56
same Article providing that the territory of Yugoslavia was “a single unified whole” . Thus, it is
normal to Applicant that Croatia could violate the territorial integrity of the former Yugoslavia, but
not at all that the Serbs from Krajina could do the same to the territorial integrity of the new
Croatian State.
25. In the Counter -Memorial, we argued that it was only in January 1992 that the Badinter
Commission held that the former internal borders of the republics were frontiers protected by
57
international law . Then, the Applicant in its Reply invoked the Declaration on Yugoslavia issued
by the Council of Ministers of the European Communities six months earlier, on 27 August 1991 58.
It would be useful if the Applicant could explain why the Krajina Se rbs had to respect the
European Community’s political declarations. It may be that they did not agree with them. It may
be that they did not wish to join the European Community at that time, but rather to join the FRY.
However, we are not now before a European Union organ, we are before the International Court of
Justice concerning the Genocide Convention, so we should be focused on international law. Why
was it criminal if the Krajina Serbs during the process of the dissolution of the former Yugoslavia
wanted to stay in the same State with their kinfolk? Can it really be seen as an idea of a Greater
Serbia?
26. On 1 April 1991, the Serbian autonomous region of Krajina adopted a decision to join
59
the Republic of Serbia . However, on the following day, the National Assembly of the Republic
of Serbia adopted the Declaration on the Peaceful Settlement of the Yugoslav Crisis, provided to
60
the Court by the kindness of the Applicant . We cannot find anything criminal in that Declaration.
Again, it is obvious that the decision of the SAO Krajina was not accepted by Belgrade.
55RC, para. 3.34, ft. 86.
56
Ibid.
57CMS, para. 443.
58RC, para. 3.35.
59
CMS, para. 446; RC, para. 3.39.
60RC, Ann. 49. - 33 -
27. On 27 April 1992, the Federal Republic of Yugoslavia was proclaimed. Even then, when
the Republic of Serbian Krajina firmly existed as a specific entity on almost one third of the
territory of the former Socialist Republic of Croatia, the new Yugoslavia did not include that entity
under its sovereignty.
28. However, any political decision, good or bad, a decision to protect territorial integrity of
an old state, or of a newly created state, or to separate from all of them, can neither justify the war
nor the serious crimes which were committed during the armed conflict in Croatia. That was a
disaster for both people, for Croats and for Serbs. The Government of the Republic of Ser bia
strongly condemns all crimes conducted during that conflict, and urges the investigation and
prosecution without discrimination by national or ethnic affiliation.
6. Was there an idea of a Greater Croatia?
29. Finally, allow me to ask who accused th e Serbs for the idea of a Greater Serbia?
According to Dr.Dejan Jović, Chief Analyst and Special Co-ordinator at Office of the President of
the Republic of Croatia, “Tudjman was the first genuine separatist nationalist who came to power
in Yugoslavia” 61.
30. According to the first Ambassador of the United States of Americ a to the independent
Croatia, Mr. Peter Galbraith, who testified in the ICTY Gotovina et al. case, Tudjman believed in
“a great Greater Croatia, that is, one that would include the Bosnian Muslims”, while other Croats
62
believed somehow in “the smaller Great er Croatia, which would include [only] Herzegovina” .
Galbraith said also that Tudjman desired an “ethnically pure Croatia” 63. The last was not
necessarily in contradiction with the previous statement of the former American Ambassador
because Tudjman was such a historian and national strategist who believed that the Bosnian
Muslims can be selected by their previous ethnic origin, and that the most of them were Croats. In
addition, he “spoke approvingly of population transfers” 64.
61
Dejan Jović, Jugoslavija, država koja je odumrla, Zagreb, 2003, p. 65.
62Gotovina et al. , IT-060-90, testimony of Witness Peter Woodward Galbraith, 23 June 2008, Transcripts,
p. 4938.
63Ibid., p. 4949.
64
Ibid., p. 4937. - 34 -
31. As our counsel Mr. Lu kić demonstrated today, the ICTY final judgement in Kordić
confirms the Tudjman’s policy of Greater Croatia. Thus, Greater Serbia v. Greater Croatia. One
all. Yet, with one significant difference: in Croatia, it was the governmental policy. No one
Serbian official at the critical time was found guilty by the ICTY for the crimes committed in
Croatia. Nor, at any moment in 1990s, an official plan of expanding borders to the territories of
other peoples existed in Serbia. Mr. President, this is a point in our presentation should transit to
the counter-claim, and I am wondering whether this is a good moment for a short break?
The PRESIDENT: Thank you very much, Mr. Obradovi ć. Indeed, it is an appropriate
moment to declare a break of 15 minutes. The hearing is suspended for 15 minutes.
The Court adjourned from 4.10 p.m. to 4.25 p.m.
The PRESIDENT: Please be seated. The hearing is resumed. Mr. Obradović, you can turn
to a next chapter.
Mr. OBRADOVIĆ: Thank you very much, Mr. President.
T HE COUNTER -CLAIM
1. Mr. President, allow me to start presenting now the Serbian counter -claim, which is
related to Operation Storm and genocide committed against the Krajina Serbs. T o commence with,
I will briefly address the issues of evidence related to the counter -claim in light of the Applicant’s
objections and observations. My distinguished colleagues Mr. Jordash and Mr. Lukić will
continue presenting the most important parts of the statements of seven witnesses called to testify
in the oral proceedings, as well as one expert witness Mr. Savo Štrbac, Head of Veritas, the
Centre for Collecting Documents and Information related to the victims of Serb ethniciktilled in the
armed conflict in Croatia, and especially during and after Operation Storm. Tomorrow, I will have
the honour to present the factual ground of our case in detail. Following that presentation,
Mr. Jordash will address the legal elements of the counter -claim, while Professor Schabas will
finish our first round of oral arguments with the rebuttal to the Applicant’s response presented in
the Additional Pleading. - 35 -
2. Distinguished Members of the Court, the Respondent has produced sufficient evidentiary
material to support its claim that Operation Storm, which was conducted by the Croatian de jure
organs, fulfils the legal elements of the crime of genocide, and consequently that Croatia violated
its obligations under the Genocide Convention. The statements of Pre sident Tuđman at the Brioni
meeting on 31 July 1995, when the conspiracy was created, can serve as evidence of the existence
of intent to destroy the part of the Serb national and ethnical group living in the Krajina Region,
i.e., in the United Nations Protected Areas North and South 65. In addition, the existence of the
genocidal intent was confirmed by many other indicators and, in particular, by the subsequent
magnitude of the criminal activities against the Krajina Serbs during and after Operation Storm,
including: (a) the indiscriminate shelling of the Krajina towns; (b) forcible displacement of the
Serb civilian population; (c) massive killings of those Serbs who decided to stay in the
UN Protected Areas; (d) attacks on the helpless refugee columns; (e) massive destruction and
looting of Serb property, and finally, (f) by imposing administrative measures to prevent the
Krajina Serbs returning to their homes. Croatia has not convicted yet any person responsible for
the massive killing perpetrated du ring and after Operation Storm. On the contrary, that criminal
66
operation is even celebrated in Croatia as a public holiday . The celebration of a crime is the
sharpest form of the impunity.
3. The jurisdiction ratione temporis of Serbia’s counter -claim is not in doubt: Operation
Storm was conducted in 1995, more than three years after the Genocide Convention had entered
into force between Serbia and Croatia.
4. Furthermore, Serbia has a legitimate interest to request a remedy for the Krajina Serb
victims and refugees, out of whom more than 150,000 found shelter on its territory. At least one
third of those refugees in the meantime have become our citizens.
5. The question of the admissibility of the counter -claim as such is also not in question,
because the Applicant has contested none of the formal preconditions for the Judgment on the
merits to be rendered in relation to Serbia’s counter-claim the position highly appreciated by the
Government of Serbia. That alone suffices to settle the matter of the admissibility of Serbia’s
6CMS, paras. 1195-1204.
6CMS, paras. 1473-1476. - 36 -
counter-claim as such. Moreover, the counter -claim of Serbia is directly connected in facts and in
law with the subject- matter of the initial claim of Croatia, as the Respondent explained in the
67
written proceedings .
Evidence produced by the Respondent
6. Mr. President, I think that a method of work of our legal team is the best reflected in the
evidence that we have so far produced in support to the factual ground of the counter -claim, with a
clear intention to follow the well-known method of proof established through the practice of this
Court. However, the Applicant has raised some objections, different in their nature and intensity,
and I will further answer them briefly.
Brioni Minutes
7. In proving dolus specialis of the crime of genocide, Serbia strongly relies on the contents
of the confidential transcript from the meeting held at Brioni Island on 31 July 1995, when
Croatian President FranjoTuđman met his military leadership to discuss the plan for Operation
Storm. This document is known in the ICTY Archive as the Brioni Minutes 68.
8. In its Additional Pleading of 30 August 2012, Croatia for the first time placed on record
69
some concerns regarding the accuracy of the Brioni Minutes . Thus, Croatia pointed out that the
transcript had several gaps in the recording, that sometimes it had been marked that “several voices
[had been] heard simultaneously”. Croatia also emphasized that the transcript did not provide “any
indication of the general mood of the meeting”, and whether anything said was said “sardonically
or ironically”. The impossibility to review the body language of the participants and the “lost in
translation” issue were also stressed by our distinguished opponents 70.
9. Mr. President, this objection is n ot serious enough. With all gaps recorded by the
Applicant, it is still clear that a stenographic record of the confidential meeting is the most accurate
67
CMS, paras. 1099-1114.
68CMS, Ann. 52.
69Additional Pleading of Croatia (APC), para. 3.11.
70
Ibid. - 37 -
source of evidence vis-à-vis the conversation at that meeting. At least, the fact -finding techniques
have not yet found a better tool for such purpose.
10. This observation of the Applicant becomes even more unclear if we know that the
Croatian legal team claims that President Tuđman at Brioni was engaged in some humanitarian
efforts: his intent, according to the Applicant, was not directed to the destruction and/or expulsion
of the Serb civilian population, but to the facilitation of an exit for them, in order to save their
lives71. Then, a certain clarification by the Applicant would be appreciated: what was exactly lost
in translation?
The ICTY testimonies in Gotovina
11. The Respondent also relies on the public testimonies that were recorded in the ICTY case
72
against three Croatian Generals . The transcripts from that case are part of a publicati on readily
available, and the Parties are free to rely on those statements. Nevertheless, the Applicant claims
73
that the testimonies of witnesses in Gotovina “[do] not enjoy any special status” .
12. The Respondent has never asked for a special status, but a common status of the witness
statements given before the United Nations Criminal Tribunal. Those witnesses were
cross-examined by the Defence counsel, and additionally questioned by the Trial Chamber, and all
their answers were duly recorded. Followi ng the practice of this Court in Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), the Respondent decided not to call all of them to testify
again in the Great Hall of Justice. Their statements, given before the ICTY, can be used in this
case as public documents, which, together with the statements given in these oral proceedings,
form authentic and reliable evidence on killing committed during and after Operation Stor m. That
evidence is of strong probative value, and it cannot be equated with the unsigned affidavits
produced by the Applicant.
13. The fact that the ICTY Appeals Chamber reversed the Trial judgement acquitting
Gotovina and Markač does not have any effect on the probative weight of the witness statements in
71
See RC, paras. 11.48-11.50.
72ICTY, Gotovina et al., IT-060-90, transcripts.
73
RC, para. 2.33. - 38 -
that case. The inversion of the ICTY legal position concerning the existence of evidence on the
joint criminal enterprise was not based on a lack of trust in the witnesses, among whom there were
many officers of the United Nations blue helmets. Indeed, it is really difficult to raise any serious
objection concerning impartiality of those United Nations officers and their professional capability
in observing the crimes and their consequences.
Declarations and affidavits produced by the Respondent
14. In accordance with the agreement of the Parties on the method of examining witnesses
and expert witnesses, Serbia submitted to the Court on 1 October 2013, declarations of seven
witnesses and one expert wi tness in lieu of examination -in-chief. Surprisingly, Croatia did not
want to use its right to cross -examine these eight persons. In consequence, Serbia considers that
Croatia, by deciding that, admitted the authenticity of these statements and credibilit y of the
witnesses. It seems difficult now to challenge the probative weight of their testimonies.
15. In addition to the statements of these witnesses that form an integral part of the oral
74
proceedings , and the statements of the witnesses who testified in Gotovina, the Respondent will
further rely on ten affidavits annexed to the Rejoinder 75, as additional corroborative materials that
confirm the existence of attacks on the refugees by the Croatian governmental forces.
16. These statements produced by Serbia were taken in accordance with the domestic rules
on criminal procedure. They are duly signed both by the persons who gave them and by the
investigating judges who recorded these statements in the judicial proceedings. The statements
were given from 1995 to 1999, prior to filing the Application instituting the current proceedings.
17. The declarations and affidavits are corroborated further by documentary materials
annexed to the Counter-Memorial, as a compilation of human rights reports in the da ys following
76
Operation Storm. Those reports were prepared by the United Nations monitoring teams and
European Community Monitoring Mission 77, as well as by the United Nations Special Rapporteur
74
Agreement of the Parties on themethod of examining witnesses and expert witnesses, para. 9.
75Rejoinder of Serbia (RS), Anns. 53, 54, 55, 56, 58, 59, 60, 61, 65 and 66.
76CMS, Anns. 55, 57 and 58 .
77
Ibid., Anns. 54 and 60. - 39 -
of the Commission on Human Rights . The impartiality and professional approach of the authors
of these documents have never been challenged.
The CHC Report
18. The Respondent relies also on the Report of the Croatian Helsinki Committee for Human
79
Rights (the CHC) called “Operation ‘Storm’ and Its Aftermath”, published in the Croatian capital
in 2001 8. The Report was objected by the Applicant for the “significant methodological flaws and
mistakes”, such as wrong biographical details for a number of victims, or mistakes in reporting
causes of a number of deaths, or simply mistakes in characterizing status military or civilian
81
of some victims . In addition, the Applicant invoked the decision of the ICTY Trial Chamber in
Gotovina not to rely on this report “if uncorroborated by other evidence” 82.
19. Distinguished Members of the Court, there is no doubt that the CHC Report contains
some errors, but that does not mean that the report is without any probative weight. Its probative
weight depends on the matter that has to be proven. The Respondent does not intend t o prove the
name of each and every victim of Operation Storm. Nor does it intend to prove the individual
criminal liability of certain persons as the ICTY Prosecutor had to do. We invoke this report in
order to prove the following facts:
(a) that killings during Operation Storm were committed on a massive scale;
(b) that perpetrators of those mass killings mainly belong to the Croatian official armed forces;
and
(c) that all victims of the mass killings belong to the Serbian national and ethnic group .
20. In spite of some factual errors of the report, neither one of these three factual conclusions
could be seriously denied, if one carefully reads the report.
78CMS, Ann. 59.
79Hereinafter CHC Report.
80
This document is re adily available on http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/
NotIndexable/IT-06-90/ACE81106R0000326368.pdf).
81
RC, para. 2.65.
82APC, para. 1.35. - 40 -
21. These three factual conclusions are corroborated by other reports, [such] as, the Veri tas
83
Report and List of Victims killed in Operation Storm , and the 1996 Human Rights Watch
Report 84.
The Veritas report and list of victims of Operation Storm
22. At this point, I am coming to the most vigorous objection raised by Croatia concerning
the co unter-claim evidence, the objection directed against the work and reports of the
non-governmental organization (NGO) Veritas 8. For the subject -matter of this case, the most
86
important document of that organization is the list of direct victims of Operation Storm , which is
actually an excerpt from the updated list of Serb victims of war and post -war in the territories of
Croatia and the former Republic of Serbian Krajina 1990- 1998, produced as Annex 66 to the
Counter-Memorial. While the whole list currentl y contains full names and other personal data on
6,361Serbs killed in Croatia, the excerpt contains data of 1,719 Serb victims killed during and after
Operation Storm in the region of Krajina.
23. Although the exact number of victims can never be precis ely determined, 87 the
Respondent considers this list of the victims of Operation Storm to be the most completed today.
The list is the outcome of the 18- year work on collecting information and evidence concerning the
victims of Operation Storm and its afte rmath. It contains full names of all recorded victims with
the father’s names and other personal data including dates and places of birth, dates and places of
death, as well as the status of the victims military or civilian. The list is regularly updated,
following each new exhumation report made by Croatia. The President of this organization,
Mr. Savo Štrbac gave his statement in these oral proceedings. He worked as an expert for the FRY
Commission for Humanitarian Issues and Missing Persons, while the centre was also engaged as an
intermediary in the ICTY investigation concerning the crimes committed in Operation Storm.
83
Available on: http://www.veritas.org.rs/wp-content/uploads/2013/02/Oluja-spisak-direk….
84Available on: www.hrw.org/legacy/reports/1996/Croatia.htm.
85RC, paras. 2.66-2.68; 11.68; RS, paras. 591–595; APC, paras. 1.37-1.41.
86
This electronic document is readily available on: http://www.veritas.org.rs/wp-content/uploads/2013/02/
Oluja-spisak-direktnih-zrtava2.pdf(last visited on 7 Feb. 2014).
87
Statement of expert-witness Savo Štrbac (4.5). - 41 -
24. The method of compiling this list is explained in the statement of Mr. Štrbac given in lieu
88
of examination- in-chief . Veritas is recommended by the United Nations Liaison Office in
Belgrade, the ICTY Office of the Prosecution, and the International Committee for the Red Cross
as “a serious organization” assisting “in professional and responsible manner” in establishing the
89
destiny of missing persons .
25. I have already mentioned that the Veritas list of Serbs killed in Operation Storm
corroborates the report on mass killing produced by the CHC. Indeed, these two reports, one made
by the Croatian NGO, another by the Serbian, ca n be seen as complementary. While the CHC
2001 Report contains data on civilian victims of Operation Storm available at that time, the
regularly updated Veritas list contains data on both civilian victims and soldiers killed in the
operation. In many cases, the Veritas list recovers the errors of the names of victims contained in
the CHC Report. However, there are only 60 victims of Operation Storm recorded in the Veritas
list, out of 1,719 in total, for whom the CHC Report is the sole source of information today 9.
26. The outcome of the Veritas work is a publicly available list, as an open invitation to
everyone who can provide additional information or simply challenge the existing data. Indeed,
when the Applicant in the written proceedings gave an ex ample on ten wrong entries in the Veritas
list of all Serb victims of war and post -war, I asked the Centre to provide me with an explanation.
The challenging entries were checked and Veritas found that the objections were right. As far as I
91
have been informed, this resulted in ten wrong entries being taken out from the list .
27. However, this action did not protect Mr. Štrbac from the further Applicant’s argumentum
ad hominem. He was even mentioned in the Additional Pleading as a member of the Serbian legal
team. That is not correct.
28. The list with 1,719 names of the Serbs killed during and after Operation Storm is
something that our neighbours would not like to see in this case. It seems that they would be happy
if Veritas can anyhow be disquali fied from these proceedings. Yet, that is impossible; Veritas
88
Statement of expert-witness Savo Štrbac (3.2).
89CMS, Ann. 63.
90Statement of expert-witness Savo Štrbac (6.10).
91
Ibid. (5.1). - 42 -
firmly stands on the wall of the Great Hall of Justice, as a good company of Justitius . She is
uncovered, and beautiful. She holds a mirror in which misdeeds of everyone are reflected. The
crimes cannot remain hidden, we believe.
Mr. President, distinguished Members of the Court, this concludes my presentation today. I
am grateful for your kind attention. I would ask you, Mr. President, to invite our counsel,
Mr. Jordash, to come to theroster.
The PRESIDENT: Thank you, Mr. Agent. I call on Mr. Jordash. You have the floor, Sir.
Mr. JORDASH:
O VERVIEW OF TESTIMONIES OF WITNESSES CALLED BY THE R ESPONDENT
1. Mr. President, distinguished Members of the Court, I am honoured to appear and address
you for the first time. May it please the Court, in support of the counte-claim, the Respondent
relies, inter alia, on the following witnesses:
(i) Captain John Geoffrey William Hill (the Commander of the United Nations Military
Police in Sector South from June until December 1995);
(ii) General Andrew Brook Leslie (Chief of Staff of the United Nations Confidence
Restoration Operation [UNCRO] Sector South);
(iii) Mr. Bozo Susa;
(iv) Mr. Mirko Mrkobrad;
(v) Ms Jela Ugarković;
(vi) Mr. Ilija Babić;
(vii) Mr. Mile Sovilj; and
(viii) Mr. Savo Štrbać (expert witness).
2. The witnesses, United Nations military personnel, an expert witness, and a range of
civilians testify to aspects of Operation Storm, and in particular the underlying nature of the attacks
and the conduct of the Croatian forces during and after the operation. The evidence is
representative, and includes testimony describing the shelling of the towns and the villages by the
Croatian forces and the ejection of the civilians from their homes. It describes the attitude of the - 43 -
Croatian forces to the refugees and the attempts by the United Nations personnel to protect them.
The civilians describe their helplessness in the face of the shelling, their attempts to escape from
death or injury and the many other civilians who were unlawfully killed or injured. The witnesses
testify to the widespread destruction and plunder of the property in the towns and the villages of the
former RSK.
3. Both United Nations and civilia n witnesses also describe the aftermath of Operation
Storm, and in particular the continued killing of civilians, including women, children and the
elderly. The United Nations witnesses describe how they were prevented from leaving their
compounds immediately after the principal attacks. By the time they were allowed to move, the
smell of dead bodies hung in the air, but the Croatian forces had removed all traces of the corpses
and had repaired some of the roads.
4. A close examination of the individual accounts and the totality of the evidence provide an
insight into the horrors and destruction that were the consequence of Operation Storm. The
professional accounts and the moving and simple tales of the civilians speak volumes about the
intent underlying this criminal operation. As you heard, the Applicant chose not to challenge their
evidence through cross -examination. I will now summarize the most salient aspects of the
evidence of Captain Hill, General Leslie, Bozo Susa, and Mile Sovilj. Beginning with the
testimony of Captain Hill, given on 27 May 2008, during the Gotovina et al. trial at the ICTY.
Testimony of Captain Hill; 27 May 2008: Gotovina et al.
92
5. Captain Hill was the Commander of the United Nations Military Police in Sector South
from June to December 1995 93. In summary, he was present in Knin on 4 and 5 August 1995 at the
commencement of Operation Storm when the town was subject to artillery attacks. After
Operation Storm, Mr. Hill also travelled to many areas in Sector South where he observed the
aftermath, namely dead bodies, shelling damage, and looting by the HV soldiers, Special Police
and the civilian police.
9Statement of Mr. J.G.W. Hill submitted as Ann. 44 to the Rejoinder in lieu of examination-in -chief.
9John Hill, T. 3736. - 44 -
6. Mr. Hill testified that on 4 August 1995, together with his military police platoon, he was
deployed in front of t he military police headquarters at the United Nations compound when at
exactly 5 a.m. the heavy bombardment started. There were “hundreds and hundreds . . of artillery
rounds” 94. It went on for approximately 90 minutes before there was a lull”. Then, th e shelling
continued, before it became harassment fire.
7. Mr. Hill explained that the term “harassment fire” was a term first used by the Americans
in World War II and later Vietnam to describe fire that, “basically is harassing the enemy rather
95
than an all-out offensive” . This fire continued throughout the day, before escalating prior to
11 p.m. to the “second highest level of shelling for the day in Knin” 96.
8. At approximately 11 p.m., Mr. Hill was summoned to the front gate of their camp where
he met the Chief of Staff, Colonel Leslie. General Forand, his commander, had decided to “take in
the Serb refugees” who had “been accumulating at the gate throughout the day, seeking refuge
97
from the shelling” . There was in excess of 300 and he was tasked t o process them and provide
them with food. They were women, children, some middle-aged individuals, and the elderly.
9. Mr. Hill further testified that at about 5.10 a.m. on 5 August 1995, the heavy shelling by
the HV started again in extremely large vol umes throughout the town of Knin. There were
hundreds and hundreds of rounds, although slightly less than the bombardment on the morning of
the fourth [4 August 1994].
10. Mr. Hill testified that as he was talking with General Forand at the main gate of the
United Nations compound at around 9.30 a.m. on 5 August 1995, an artillery round hit the wall of
the United Nations compound and killed six Serbs and wounded four. They were a mixture of
civilian and military personnel. Forand told Hill to go to the scene with Berikoff and two
corporals. Mr. Hill saw the casualties and Berikoff and other soldiers placed the bodies into black
bags. Mr. Hill testified that the bags were put by the side of the road across from the camp, where
they remained for several days. He saw one of the bodies at a later date and saw that it had faeces
94
John Hill, T. 3738.
95Ibid., T. 3741.
96Ibid., T. 3741.
97
Ibid., T. 3746. - 45 -
on it. The bodies had also been shot. He was told that the HV had opened the bags, urinated and
defecated on the bodies and also shot at them. Mr. Hill stated that shortly after the shelling incident
at the wall of the United Nations compound, the shelling stopped.
11. Mr. Hill further testified that he first saw the HV around noon on 5 August when a
convoy of six tanks, three APCs, and some infantry arrived in a column. They wanted to come into
the camp to take the refugees. Colonel Leslie negotiated with them and the HV agreed to stay out
of the camp. Mr. Hill talked to two HV members and asked them what they were going to do. One
98
of them answered that they “were going to kill all the Serbs” .
12. Mr. Hill testified that on the evening of 5 August he tried going into Knin to collect any
refugees but a Croatian officer would not allow him to pass the intersection. Mr. Hill told them
that they were the United Nations and were trying to find refugees. However, the Croatian soldiers
became angry and stated it was “absolutely forbidden”, they put the tank across the road, and
99
ordered them back to the camp .
13. Mr. Hill testified that everywhere in Knin and virtually every town they went Croatian
soldiers were looting the abandoned homes of their appliances and clothes and placing them into
stolen cars. Mr. Hill saw burning buildings, as well as those that had been damaged or destroyed
by artillery fire. As for Knin, he stated , “[o]n any given area of the town you went to, behind the
parliament, below the castle, you would see cars being stolen and soldiers coming out of houses or
apartments with material they were loading the cars with. Any part of the town you went to, you
saw this” 10. Mr. Hill had no doubt that those responsible were armed and fully uniformed. They
were HV soldiers.
14. Mr. Hill further testified that on the evening of 8 August 1995 he went to Knin to check
on a reported incident. Mr. President, Members o f the Court, I invite you to put on your
headphones so you may hear how Mr. Hill described that event during his testimony at the ICTY in
the Gotovina et al. case 10. After this, you will hear Mr. Hill testify in the same case to what he
98
John Hill, T. 3751.
99Ibid., T. 3752.
100Ibid., T. 3757.
101
Judges’ folders, item No. 1. - 46 -
observed when he visited the towns of Kistanje and Gracac 10. Both clips are around two minutes
long. [Video on]
Item No. 1 Transcript:
“At approximately 19:30, I was advised there was an issue with the UN worker
downtown. I took several of my police with me. I went down to the police station,
and found a lieutenant HV, who came with me. At a certain [part] of town, in an open
courtyard in between two apartment buildings, there was approximately 30 military
individuals standing around. At that point, they were [very] agitated because of our
weapons. I had to give up my long arm and my pistol to my second in command, and
then I went to talk to who I believe was in charge, who I thought was the commander
of 4 Brigade. There was an UN pick- up truck with the right front tire shot out, and it
was flat. The back of the truck was filled with personal belongings, and there was an
UN employee, a Serbian interpreter, standing there. When I approached the
individual, there was an HV civilian police there, Jan, who spoke very good
English, . . . I asked about the situation. The commander showed me a piece of paper
that was in, I believe, Croatian, that showed that this individual had served in the
ARSK army for, I believe, nine or ten months. Through the interpreter, he said he was
a Chetnik and they were going to kill him. All I understood from the commander was
the word ‘Chetnik’, and I understood what it meant. Apparently, this individual left
our camp, gone to his own accommodation, and was retrieving personal items. W e
negotiated back and forth that he could not shoot the individual, it was not his
responsibility, the individual belonged to me. And, eventually, he agreed that the
individual would go with me; however, he said that he could not guarantee the safety
of the individual if his soldiers saw him, or my safety which was the first time they
said that. He said that any helicopters leaving our camp with Serbs would be shot
down, and any Serb men of military age, 19 to 60, who leave our camp would be shot.
At this point, we took the individual, we surrounded him, moved him back to our two
vehicles, and drove him back to our camp.”
Item No. 2 Transcript:
Question: “And at this point in your statement, Mr. Hill, you discuss a trip that
you took through the town of Kistanje, and I would like [you] to describe for the Court
what you witnessed in that town?”
Answer: “That was the worse town I had seen for damage. There was no
inhabitants at all. I believe there was an HV company there on the factory side. The
majority of the homes [were] destroyed by either artillery or fire. They had artillery
impacts on the outside of the town for the first time, where we saw how they had
walked the artillery into the town. There was a massive war memorial, beautiful. It
was huge made of it appeared to be granite, that had been virtually destroyed, not by
artillery but it appeared as if by sledge hammers. In Canada, we would call it I
can’t remember vandalism, but it was destroyed, completely destroyed. It was a
massive monument. There was an extremely strong smell of dead bodies, but yet we
found none. [And there was that single company of HV soldiers who were resting by
the factory area.]”
10Judges’ folders, item No. 2. - 47 -
Question: “Mr. Hill, here, you [discuss] what you saw in the town of Graca c
and I would like to you tell the Court, please, what you witnessed there.”
Answer: “We saw artillery impacts in the fields leading up to the town. There
was no MP, so there was HV. I remember one check -point with HV soldiers by the
impacts. The town was fairly well destroyed. Some houses were still burning. There
was looting, and there were still some soldiers there. As it says in my statement, they
were friendly. Again, large very strong smell of bodies. We drove everywhere with
our windows ope n, so we could identify that. Then we continued to the Czech
battalion.”
Question: “Can you tell the Court who was doing the looting?”
Answer: “HV soldiers.”
Question: “And did you see any civilians in this town at that time?”
Answer: “No. The town was empty.” [Video off]
15. Mr. Hill further testified that driving through the area he observed homes burning. Once
103
he arrived at Otric, he saw all of the animals had been killed and shot . He further stated that in
driving north and when passing O tric, he noticed six bodies. However, soon thereafter the bodies
disappeared. He stated that individuals in grey uniforms with an orange, flat bed Volkswagen were
removing whatever bodies they found, including the aforementioned six. Mr. Hill testified that he
later saw the orange Volkswagen in other places in the sector. He later learnt that the HV were
getting rid of the bodies.
16. Mr. Hill further testified that in front of the camp he saw an individual with a shaved
head and a grey uniform, holding a sub-machine gun and having an old man at his feet like a dog.
Mr. Hill testified that Ivan Juric, the HV military police commander in control of all military police
units operating in the former RSK during Operation Storm, told him that the armed man was a
member of the counter-terrorist unit that was a part of the military police. Juric stated, “all Serbs in
104
the former RSK were considered terrorists” .
Testimony of General Leslie; 22 & 23 April 2008: Gotovina et al.
17. Moving to the testimony of General Leslie, given in the Gotovina trial on the 22 and
105
23 April 2008. Mr. Andrew Leslie , a Canadian Army General, was the Chief of Staff of
103
John Hill, T. 3776.
10Ibid., T. 3736.
105
Statement of General Leslie submitted in lieu of examination-in-chief on 1 Oct. 2013. - 48 -
UNCRO stationed in Knin, Sector South from March to August 1995. In summary, he testified to
the deliberate attempt to shell, or the indiscriminate shelling of, civilian structures and areas by the
Croatian forces on 4 and 5 August 1995 in Knin. He confirmed that he had observed a large
number of men, women and children who had been killed or injured during the operation. He
described the chaotic, mixed columns of departing Serbian civilians and military personnel.
Mr. Leslie also confirmed that the Croatian forces had refused to allow the UNCRO personnel to
leave their United Nations compound after the initial shelling of the area.
18. General Leslie testified that Knin had a population of about 35,000 people immediately
prior to 4 August 1995. As it had become clear that hostilities were approaching, the numbers had
increased from around 20,000 or 25,000 i n March 1995. The people from the villages and towns
closer to the zone of separation had moved into Knin for safety. General Leslie testified that from
May 1995 onwards men of fighting age had been mobilized and deployed into the zone of
separation in a variety of defensive positions. Thus, immediately prior to 4 and 5 August, the town
was mainly populated by the elderly, women, and children.
19. In describing the consistent shell fire on 4 August 1995, General Leslie testified that the
intensity was high between approximately 5 and 7 a.m. At 7 a.m. it diminished markedly:
“instead of having explosions all over the city of a consistent nature, the explosions
and shell fire was grouped across specific regions of the city which varied, wherein
you’d have a shell detonating, a minute or two or three would go by, another s106l
detonating 200 to 300 meters away from where the first one went off” .
There was no “discernible pattern that corresponded to any obvious point of aim of military value.
The fire was, to put in layman’s terms, all over the place.” 107
20. Most of the fire was directed towards the centre of the town . That process would be
repeated several times. Then four to six shells landed tightly grouped together. This signified,
according to the witness, that the HV artillery was engaged in “fire or target group or grid
108
procedures”, that is, directing the artillery “in an effort to hit targets” . Mr. Leslie confirmed that,
106
Andrew Leslie, T. 1942.
10Ibid., T. 1979.
108
Ibid., T. 1943, 1980. - 49 -
“the vast majority of the target grid procedure centre of mass impact were in and amongst
109 110
residential structures” . The “vast majority of the fire was not legitimate military targets” .
21. General Leslie testified that on 5 August 1995, the same pattern of shelling as had
occurred on the previous day was repeated.
22. At approximately 9 a.m. on 5 August 1995, Mr. Leslie left the Sector South headquarters
compound. He had been asked to assist in the evacuation of the Knin hospital. I invite you,
Mr. President, Members of the Court, to hear General Leslie’s own words as h e describes the scene
111
he encountered . The piece of testimony will last in the region of two minutes and thirty seconds.
[Video on]
Item No. 3 – Transcript:
“The journey was took approximately 15 to 20 minutes. We started with six
vehicles. We wer e initially, my vehicle was going to lead, but at some point the
Serbian ambulance cut in front, I think during one of the moments of shell fire. There
were two significant periods of shell fire en route. One was in the area of the train
yards before you got to the main traffic circle, quite close to the vehicles, to the extent
that they were rocked by the blast. The second, which was in the area of or prior to
the north Dalmatian corps headquarters, after the traffic circle. En route, the town
appeared to be, from what I could see, essentially deserted. There were dead along the
route, numbering somewhere in the order of 15 to 20 scattered hither and yon, along
that main route, occasionally up the side street. There was an enormous debris field
along that route of baggage and suitcases and even furniture until we got to the
turn-off which left Knin to the north and west, at which point the route became
relatively clear.”
Question: “You mentioned seeing dead along the route to the hospital. Did you
see any bodies or injured persons upon arrival at the hospital?”
Answer: “On arrival at the hospital, there were large quantities of dead, men,
women, and children, stacked in the hospital corridors in a pile. A makeshift room on
the back rear floor was being used as a morgue. There was no power, and the medical
staff had departed, with the exception of one male nurse who had obviously stayed
there while the Serbian physician came and got us. There were approximately 30 to
40 patients of which 25 or so were in absolutely critical condition, a mix of the elderly
women, occasional fighting-age male, and yeah.”
Question: “While . . .”
Judge Orie: “Mr. Tieger, could we ask the witness ‘large quantities of dead,
men, women, and children, stacked in the hospital . . .’ What do I have to understand
109
Andrew Leslie, T. 1980, 1990-1991, 2047, 2120.
11Ibid., T. 1991.
11Judges’ folders, item No. 3. - 50 -
approximately by large quantities? Where you are saying ‘30 to 40 patients, 25 in
absolutely critical condition’, what about the dead bodies.”
Answer: “Sir, it’s very difficult to estimate. I would say the number was no
lower than 30 and probably no higher than 50 or 60.”
Judge Orie: “Yes. In the tens of?”
Answer: “Yes, sir.” [Video off]
23. General Leslie also testified about the fleeing columns. Starting on 4 August, he
observed Serbian soldiers in a column of vehicles. Within a couple of hours, this column became
constant and steady,
“where you’d have trucks carrying two or three soldiers, five or six women and
children, followed by a putt -putt, which is this tractor pulling this wooden cargo flat
rack, that might have all soldiers; followed by a normal tractor pulling at a hay wagon
that would have all women and children. So it was truly a chaotic melange of people
driving by Sector South headquarters.” 112
24. The witness further testified th at UNCRO personnel after Operation Storm were not
allowed to leave their camps. Again, it is useful to hear him describe this state of affairs. [Video
on]
Item No. 4 Transcript:
Question: “Did you demand on behalf of UNCRO that UNCRO personnel be
permitted to leave the compound?”
Answer: “Yes.”
Question: “And did you explain for what purpose UNCRO wanted to leave the
compound?”
Answer: “Yes.”
Question: “What was that purpose?”
Answer: “To ensure that the laws of war were being respected, t o ensure that
no humanitarian violations were being perpetrated, to allow us access and visibility as
per the United Nations Security Council resolutions which granted us such, and I also
mentioned that we were willing to accept the responsibility and riskin doing so.”
Question: “Okay. If you recall, what response did you receive to the demand to
leave the compound?”
Answer: “Endless repetitions of no.” [Video off]
11Andrew Leslie, T. 1993. - 51 -
25. General Leslie testified that HV soldiers from the Puma Brigade arrived at the fr ont gates
of the United Nations compound and refused to let them, the United Nations, leave until 9 August
when the witness was one of the first ones to leave, escorted by Captain MarineLukovic from the
Sector South headquarters.
26. During cross-examination in the Gotovina case, General Leslie was asked to give his
general view of Operation Storm. For the final time, I would ask the Court to hear his description
of this event113. [Video on]
Item No. 5 Transcript:
Defence counsel: “So what you’re saying is that Operation Storm was
conducted with a high degree of expertise; is that right?”
Answer: “I, as a military professional, would agree that certain elements of
Operation Storm were conducted with a high degree of expertise. If the aim was to
ensure that the local population was cleansed from the region.” [Video off]
27. General Leslie confirmed that he had spoken on the BBC at 7.04 on the morning of
4 August, and reported, inter alia , that, “essentially every large urban center in the Krajin a had
114
been hit by shell fire” .
28. General Leslie further testified that the observations in the 7 August report from
Mr. Stoltenberg to the Secretary -General with regard to the attack on Knin were inaccurate.
Contrary to the observations, General Leslie testified that most of the civilians had not fled the city
of Knin before it was shelled and the shelling was not directed at only the three military barracks
located there.
29. Lastly, General Leslie concluded that the shelling he had observed was either a deliberate
attempt to shell civilian areas and structures, or the indiscriminate shelling of such structures and
areas.
Bozo Susa: Witness Statement of 23 May 2012
30. Moving to the civilian witnesses, Bozo Susa, who gave a witness statement on th e
23 May 2012. Mr. Bozo Susa stated that in May 1991 he resided with his family in Biograd
11Judges’ folders, item No. 5.
11Andrew Leslie, T. 2047. - 52 -
near Zadar where he worked as a carpenter for a construction company. The witness stated that
one day, when he arrived to work, Croats from a place called St. Filip Jakov near Biograd ordered
him to leave or else they would kill him. Mr. Susa stated that at that time, he would receive phone
threats because he was a Serb. The witness stated, “[e]verything that had anything to do with
Serbian identity, such as k iosks selling newspapers from Serbian shops and restaurants owned by
Serbs, were all demolished or destroyed” 11.
31. The witness stated that on 26 May 1991, he was fired from the construction company.
On 31 June 1991, he was conscripted into the JNA. Whilst in the army, he served as a driver in the
scouts unit belonging to the Knin Corps. The witness stated that he later stayed and served in the
Serb Krajina Army.
32. Mr. Susa moved with his family to the Marici neighbourhood in Knin in 1992. The
witness was at home when Operation Storm began on 4 August 1995. He stated that on the
morning of 4 August 1995, the shelling of Knin was relentless and that targets included the military
barracks, the police station, the JNA centre, the railway but also the town’s residential quarters. All
of the residential areas other than Marici were shelled because “this estate was inhabited by
Croats”. The witness opined that this was because the Croatian forces knew that the owners of
116
those houses would return some day ” . On 4 August, “no one fired back from Knin in response
to the attack, not a single bullet was fired” 117.
33. The witness stated that on the same morning of 4 August 1995, around 9 or 10 o’clock,
massive convoys of civilian refugees arrived in Knin. Residents of entire villages came from the
118
direction of Drniš, Vrlika and Strmica . The witness noted that these convoys had to pass through
Knin and the intense shelling on their way to Kistanje and a place called Srb. He observed that
even the roads that the convoys took had been shelled.
34. The witness stated that around 8 p.m. on that day he put his family and some neighbours
he had hidden in a basement into a United Nations vehicle and drove them to a house near to where
115
Bozo Susa, Witness Statement of 23 May 2012, p. 1.
116Ibid.
117Ibid.
118
Ibid. - 53 -
the United Nations troops were stationed, where he thought they would be safer. On 5 August
1995, Mr. Susa saw the Croatian Army entering Knin from Strmica via Crvena Zemlja. According
to the witness, infantry soldiers wearing camouflage uniforms followed the tanks. The witness
stated that he later found out that this unit was the Seventh Guard Brigade of Vara ždin and it was
known as the Pumas. The witness heard the officer leading the infantry column issue an order to
“Shoot them all at random!” 119 The witness was hidden. From his position 50 metres away, he
observed the Croatian soldiers fire at and kill aro und 15 elderly people close to St. Jacob’s Church.
Half of the people were women. They had stood aside to let the infantry go through. After the
initial burst of fire, the witness heard some women scream. All the women were laid on the ground
wounded, they were begging the soldiers to spare their lives. However, “they took no pity on them
120
and finished them off” .
35. The witness also testified that immediately after the incident, a Croatian soldier shot and
killed a young man who was wearing an RSK Army uniform. Despite the fact that he had his arms
in the air and was probably surrendering, a Croatian soldier put a pistol to the man’s temple and
killed him with a single bullet. The witness was later told that the Croatian Army killed all the
uniformed personnel that they encountered.
36. Mr. Susa stated that after these incidents he hid for six days in a forest nearby. He found
two other civilians. They were named Dusan Pekić and Savo Žeželj. The witness stated that they
all sought shelter in the Raškovići field. The witness stated that from that location, they could
watch Croatian soldiers looting and burning houses in Knin. He also saw four or five houses
burning in Raškovići. Croatian soldiers in uniform started the fires. In total, he observed Croatian
soldiers torch 20 houses in Raškovići. They were also killing dogs and chasing livestock.
Mr. Susa also observed soldiers enter houses with their weapons. From time to time, he heard
bursts of automatic gunfire and the screams of people in Raškovići. Military trucks were loaded
with furniture and driven away. On 7 August, he saw Croatian soldiers loading dead civilians in
civilian clothes and animal carcasses onto trucks.
11Bozo Susa, Witness Statement of 23 May 2012, p. 2.
12Ibid., p. 2. - 54 -
37. At this time, Mr. Susa did not know the whereabouts of his family. The witness was able
to make his way to his own house. It had been ransacked and all the electrical goods had been
stolen.
38. On 11 August 1995, along with Pekić, Mr. Susa surrendered. The witness stated that
they had heard through a transistor that 800 Serbs were sheltering at the United Nations compound.
Mr. Susa stated that, “Tudjman called on all people who had not bloodied their hands to remain
121
behind” . Since he had not done anything wrong or committed any crime, at around 8 a.m. they
went to the International Red Cross building in Knin. In Knin, the witness observed overturned
refugee tractors and horse -drawn carts damaged by shells. He also saw road workers f illing the
gaping holes on the road that were the result of the shelling.
39. Two ICRC employees registered them and then two Croatian military policemen took
them away to the Senjak barracks where the 72nd MP combat unit from Lora in Split was housed.
Mr. Susa related how the Croatian military policemen tore up their ICRC registration cards and
forced them to scrub the floors for two hours while being beaten. The witness testified that he and
Pekić suffered beatings and inhumane treatment. The MPs were beating them with bats and shovel
handles. They put a ram’s bell around his neck and forced him to bleat, then to bray like a donkey
and bark like a dog. A photograph was taken during this abuse.
40. During that time, an MP kicked the witness in the mouth and broke his tooth. He was
beaten with clubs and across his head with a broom. He was threatened with having his throat slit.
His ribs were broken during this inhumane treatment. Mr. Susa stated that, as a result of these
beatings, for some months afterwards, he could not walk properly or stand unaided. He urinated
blood and his left testicle was swollen to the size of a fist. About 40 MPs had taken turns in
beating the two men. The offic ers had not joined in. However, he heard them tell their
subordinates not to beat them across the face. The officers knew that the ICRC had registered
them. The witness believed that it was only this fact that saved them from death.
41. The next day t he witness and Pekic were moved to Zadar. They were interrogated and
given food for the first time. A doctor examined the witness because his condition was very bad as
12Bozo Susa, Witness Statement of 23 May 2012, p. 2. - 55 -
a result of the beatings. The witness testified that Pekic and himself were then tran sferred to a
prison in Zadar where they were beaten by a guard called Mirko Philipovic. He beat them on a
daily basis with a police baton across the palms. During this time, the witness saw Philipovic and
another guard called Jurjevic forcing prisoners t o have oral sex while in the shower. The witness
stated that he shared his cell with Milan Jovic. In September, as a consequence of the beatings,
Jovic committed suicide by hanging himself in the cell toilet.
42. On 31 August 1995, Mr. Susa was brought before a military judge. On 16 October he
was charged with deportation of the civilian population, separatism, and other alleged crimes. He
was then moved to the Bilice prison in Split where he was constantly beaten by the guards,
Marjan Rasic, Zoram Kaselj, Bajic, Mandaric and a certain Ljubo. This continued until 1996.
43. The witness stated that in November 1995, SIS investigators at a location outside Split
interrogated him. The witness stated that the investigators tortured him by administering e lectric
shocks. They tied the cables of a field telephone to his handcuffed hands. He was asked about
Ratko Mladic. The witness stated that he felt his lungs would explode. The pain was unbearable.
The torture was so severe that the handcuffs broke. He heard from other prisoners that they were
also subjected to this same kind of torture.
44. On 5 October 1996, Mr. Susa received an amnesty decision and on 17 October he went
to Yugoslavia. He discovered that his father’s house had been burnt down during Operation Storm,
on 5 or 6 August 1995, while his house in Zadar had been completely looted. Mr. Susa also stated
that prior to his release he was asked whether he wanted to stay in Croatia. He surmised that this
offer was not genuine. Some of the am nestied people had been returned to prison after only a few
days. Also, he had learnt of the conditions outside from newspapers, in particular that Serbs who
had remained in their villages had been massacred.
Mile Sovilj: Witness Statement of 20 March 2013
45. Moving to Mile Sovilj, who gave a witness statement on 20 March 2013. In sum,
Mr. Sovilj, a Serb journalist from Kijani in Gračac 12, described the heavy shelling of the village of
Kijani. He gave details about the absence of military targets in Gračac during Operation Storm and
12Mile Sovilj, Witness Statement of 20 March 2013, para. 1. - 56 -
formed the view that “the purpose of pounding the town was obviously to upset the residents and
force them to leave”. His father refused to leave Kijani. The witness testified to the massacre by
HV soldiers of the elderly people and civilians that remained in the village, in particular his father
and 13 others. The village was also completely destroyed.
46. The witness stated that he was in Gračac on the night of 3 to 4 August 1995 when
Operation Storm commenced. He stated that at around 5 a.m. a shell fell near his home.
47. On 4 August 1995, different parts of the town were shelled. Around 15 shells fell in the
part of the town he used to live. The witness stated that during Operation Storm there were no
military installations or personnel in Gračac. There was no one to return the fire. At around,
2 p.m. or 3 p.m., the local population formed a convoy to leave and started heading towards
Bosnia. The people thought that they would be able to return to their homes w hen the shelling
stopped. At around 4 p.m. on the same day he went to Kijani to retrieve his wife and child. He
was told that the shelling of Gračac continued after he left. He heard that the shelling had killed
123
civilians .
48. The witness stated that around 80 families or 150 people lived in the village of Kijani,
and that the village included approximately ten smaller hamlets. The witness stated that his
father’s hamlet was Surla. The witness confirmed that there were no Serb forces in Kijani or in the
nearby hamlets.
49. Mr. Sovilj stated that he tried to persuade his 65 -year-old father to leave. However, he
refused to leave his home. His father quoted Tudjman’s words; those Serbs who had “not bloodied
124
their hands” could stay .
50. At around 1 a.m. on 5 August 1995, Mr. Sovilj and a dozen other people from two or
three of the Sovilj families in the village left by truck. The witness travelled through Bosnia and
reached Serbia on 6 August 1995. Later, he heard from the media that some of the c onvoys that
went the Bosanski Petrovac route, and not the road through Sanski Most, were shelled.
51. Having heard of the crimes committed by the Croatian army, the witness did not even
consider going back to Croatia. He tried unsuccessfully for a year through international
12Mile Sovilj, Witness Statement of 20 March 2013, para. 2.
12Ibid., para. 5. - 57 -
organizations and the Croatian Helsinki Committee to obtain news of his father. He eventually
concluded that he was probably dead. Mr. Sovilj confirmed that his mother died in Serbia in 1999,
only a month after his wife had died. He believed that this was due to the stress and dire conditions
that she endured as a refugee.
52. The witness later heard that his father along with 13 others was killed on 8 August 1995
by Croatian forces. Mr. Sovilj stated that in 2002 the Veritas org anization showed him a
photograph of his father’s dead body. It appeared to have been torched but he was able to
recognize a cigarette case next to him. In 2004, his father was identified by DNA analysis. He
took possession of his mortal remains in 2006.
53. The witness testified that the others from Kijani that were killed were predominantly
125
elderly people and civilians “and that is why they stayed behind in the village” . Their relatives
told him about their deaths. He named 12 persons as having bei ng killed on the same day, the
8 August 1995. The ages ranged between 45 and 80 years old. One was a deaf mute. The witness
126
heard from the son of Dane Bolta that his body had been decapitated . Milica Jelača’s sons did
not find their mother’s body. However, they saw that the house had been burnt and thought she
had been burnt in the house 12.
54. The witness stated that he had no doubt that the Croatian army entered Kijani, killed the
people, and burnt the houses 128. The witness further stated that almost 90 per cent of the 80 houses
129
in the village of Kijani were destroyed and that today only one person still lives there . Lastly,
the witness stated that he applied to the Croatian Government for the reconstruction of his family
130
house in Kijani but his request was denied . The witness was a witness for the prosecution in the
Gotovina case at the ICTY. However, no one has been held accountable for the massacre of Kijani.
131
He believes it is a great injustice .
12Mile Sovilj, Witness Statement of 20 March 2013, para. 8.
126
Ibid.
127
Ibid.
12Ibid., para. 9.
12Ibid., para. 10.
130
Ibid., para. 10.
13Ibid., para. 10. - 58 -
55. Mr. President, I would now respectfully a sk you to give the floor to my colleague
Mr. Novak Lukić.
The PRESIDENT: Thank you very much, Mr. Jordash, and I invite Mr. Lukić to continue.
You have the floor, Sir.
Mr. LUKIĆ:
O VERVIEW OF TESTIMONIES OF WITNESSES CALLED BY THE RESPONDENT –P ART II
Mr. President, Members of the Court, I will now draw your attention to the main points of
the testimonies of another four witnesses that we called to testify.
Testimony of Jela Ugarković
1. First I will address the testimony of Jela Ugarković. Ms Ugarković was born in a village
named Komić in the municipality of Titova Korenica. Before the war she lived and worked in
Zagreb but, in 1991, she was dismissed. Subsequently, she decided to live with her parents in her
native village, Komići. Her mother was very ill, and the father was old, so she wanted to stay with
them. The village was a poor one. It was situated outside the combat areas so during the war, the
locals did not experience the combat.
2. The witness stated that on 4 August 1995 she heard a distant shelling. During the same
day she heard on the radio that the Croatian army launched an attack on Krajina. In the afternoon
of the same day, she saw a convoy of farmers with tractors as they were moving towards the east.
These people explained to her that they had to flee as Croatian forces were arriving. On the advice
of her father, who feared for her, she slept outside the house that night. The next morning she
heard gunshots again. On the same day, the majority of locals about 150 of them left the
village while only the elderly remained.
3. Ms Ugarković further describes the arrival of the Croatian army in the village on
12 August 1995. She was hidden while observing the entry of armoured vehicles marked by the
label of the chessboard. She saw the smoke coming from a house. She later found out that
60-year-old Lavrnić Petar and his 90-year-old mother died in their family house, which was burnt - 59 -
to the ground. Their remains were found beneath the burned family house, remaining there even
six months after the event.
4. Ms Ugarković was an eyewitness when the Croatian soldiers burned down her house and
when her immobile mother died. She was hidden 15 metres away. This is how she describes what
happened:
“Two soldiers entered the house on one side and the other two on the other side
and I froze and hid among the trees. They entered all the rooms as well as the large
barn and threshing barn. Shortly after I heard the soldiers say ‘Guys, we burned it all,
let’s go’ and the soldiers left. I waited a little, then ran toward the house thinking that
I could save my mother, but it was already too late. The roof of the summer kitchen
had collapsed and completely dropped. It was all lit up in the second, as they had set
fire to all rooms . . . I will never forget that moment . . .”
5. She describes seeing the burning of other houses in the village as well, and the next day
she visited the neighbouring villages and saw more burnt houses and dead domestic animals. The
remaining villagers decided to hide in the hills above their homes, in fear of being killed. Around
25 August, they decided to seek help from the Czech squad of UNPROFOR. They helped them to
evacuate 18 locals.
6. Ms Ugarković later returned to the village to bury the remains of her mother. She also
obtained information on the other deaths. According to this information, one disabled person was
found dead next to a burned house. The second person was found dead in the garden. One deaf
person was missing.
7. From a total of 89 individual houses in the village, according to the w itness, about
80 per cent of all estates were burned. It was similar with the neighbouring village, where about
70 per cent of the buildings were destroyed.
Testimony of Ilija Babić
132
8. Now to the testimony of Mr. Ilija Babić . Ilija Babić was born and, like many previous
generations of his family, spent his life in Mokro Polje in the Municipality of Knin. This place
covered an area of about 70 sq km with 39 small hamlets, and about 1,500 inhabitants. All of the
residents were of Serbian ethnicity. Mokro Polje was located deep in the territory of UNPA zone
South, outside of the combat operations where there were no military facilities.
13Testimony of witness Ilija Babić dated 4 March 2013. - 60 -
9. In his statement, Mr. Babić described the events that occurred in this location after the
beginning of Operation Storm, commencing on 4 August 1995, namely, the shelling from the
direction of Grahovo during the first night, the convoy of refugees that passed through his pla ce,
the departure of his entire family, including seven grandchildren and finally his own decision to
stay and not to leave his birthplace. The next day, he found that a total of 64 residents that
remained in Mokro Polje were hiding in their homes.
10. The Croatian army, as testified by Babić, entered his village after two days. He saw a
burning house at the entrance of the village. Previously, the electricity power had been cut. He
saw Croatian soldiers shooting at a tractor and then capturing and taking away three civilians. The
witness found out from the soldiers themselves, members of the Croatian army who came to the
place, that they were members of the Split Brigade of the Croatian army.
11. This is how witness Babić described the situation the following day:
“On Monday morning, August 7th, Kanazir Manda, whose house was
downtown, came to my house and told me Babic Ruža was killed [Babic Ruža was
born in 1926] . . . and also that somebody else was killed in my store and that the
bodies were burned. When I went to the city, I saw the body of Babic Ruža right at
the entrance to the hallway of her house as well as the body of Stevan Sučević.
Within my store, on wooden pallets, I saw burned bodies and I did not know at the
time how many bodies there were and w ho those killed people were. I have later
learned that among those people were Manojlovic Steva and Ruža and Sava Traživuk
and after the war their bodies were found in the Knin cemetery.”
12. He also described his knowledge of the murder of two people in the hamlet of Popovic as
well as the bodies that were later found in the presence of UNPROFOR and Croatian police
officers. Amongst other observations, he describes discovering a person, born in 1913, who had
been shot twice in the head and the body of a woman, born in 1928, who had been dumped in a
well.
13. According to the testimony of Babic, members of UNPROFOR were only allowed to
enter the place after 15August 1995.
14. The witness said in his statement that, during and after the Operation Storm,
53 residential and 15 commercial buildings were burned down in Mokro Polje itself, thousands of
goats and sheep were slaughtered as well as hundreds of pigs. Hamlet Prevljes was completely - 61 -
burned and destroyed and, in the period of making the written sta tement, there were less than
10 people remaining in Mokro Polje.
Testimony of Mirko Mrkobrad
15. Now I turn to the testimony of Mirko Mrkobrad. He gave his statement to the Dist rict
Court in Požarevac in the Republic of Serbia in 1997 133. The statement has been submitted by the
Respondent as Annex 52 of the Rejoinder.
16. Mrkobrad was born in 1961. He was a police inspector, who worked in the Ministry of
Internal Affairs of Croa tia. At the beginning of the war he had left Karlovac and settled with his
family in the municipality of Vrgin Most.
17. On August 8 1995, his entire family moved with a convoy of refugees towards Bosnia.
He initially stayed in his place but afterwards he also joined a convoy of refugees.
18. Mrkobrad described the attack on the convoy of Serbian refugees who were on the move
on 8 August 1995 near Ravno Rašće settlement. The attack began with an artillery barrage that
lasted about 10 minutes. One shell hit a vehicle in the convoy that set it on fire, thereby preventing
further movement of the refugees. According to Mrkobrad’s estimatio n, around 30 people were
killed and many more were wounded by shelling in the cut -off part of the column in which he
stood.
19. After the artillery fire had ceased, about 50 members of the Croatian army approached
the convoy of refugees and opened fire fr om automatic weapons and mortars. Witness Mrkobrad
said that there was a number of dead people.
20. He further describes the events in the settlement of Glina, which occurred after the
arrival of his group of refugees. According to Mrkobrad, the members of the Croatian army were
then already there. There were about 600 Serbian refugees, mostly civilians, women, children, and
a smaller number of uniformed personnel.
21. Members of the Croatian army then opened fire at the Serbian refugees without any
warning. Individuals from the convoy were mostly randomly firing back. According to the rough
estimates of witnesses, about 150 people were killed on that occasion. Croatian soldiers were then
13Testimony of witness Mrkobat Mirko dated 13 March 1997. - 62 -
shooting at the wounded ones from close range and some were be ing pulled out of the convoy and
lined up against a wall and killed. The witness later learned that those soldiers were members of
the Croatian army, the military unit of Sisak.
22. On that occasion the witness was captured. He spent the first few days in Glina and then
a couple of days in Pertinja. After that he was transferred to a collective centre in Sisak, where he
spent ten days. He then spent one day in jail in Karlovac. He spent six months in Zagreb in
Remetinac prison from where he was exchanged.
23. He described in his statement the events and conditions in captivity. As a result of
physical abuse during his stay in prison in Sisak, he lost six teeth, two of his ribs were broken and
the knuckles of his both hands and fingers were broken. O ther prisoners were tortured as well.
Some people were taken from the prison in Pertinja and he has never seen them again. He heard
the Croatian soldiers bragged about “cutting the throats of two or more Chetniks”.
24. Criminal proceedings before a mili tary court were conducted against the witness while
he was in prison in Zagreb and he was sentenced to five years’ imprisonment.
Testimony of expert witness Savo Štrbac
25. Finally, I want to turn to the testimony of expert witness, Mr. Savo Štrbac.
Mr. Savo Štrbac is an expert witness who had prepared a statement about his work, and the work of
NGO “Veritas”, relating to Serb victims of war and post -war periods in the territory of Republic of
Croatia 134. I will use this opportunity to underline the most s pecific portions of that report or
statement, with special emphasis on the findings relating to the Serb victims during and after
Operation Storm.
26. Mr. Štrbac was born in 1949 in Croatia, in the territory of Krajina. He lived and worked
there until August 1995, when the Croatian army launched the attack on Knin. Since then, he lives
135
and works in Belgrade .
13Statement of expert witness Savo Štrbac, February 2013.
13Ibid., para. 1. - 63 -
27. In his jurist career, he has been a municipal and then district judge in Croatia, and as of
1990, he practised law as an attorney, being a member of the Bar Associations of Croatia, Republic
136
of Srpska Krajina and, finally, Serbia. He retired in 2011 .
28. As of 1991, Mr. Štrbac was also involved in humanitarian activities, firstly in activities
relating to exchanges of prisoners and, after that, extensively through the humanitarian organization
137
“Veritas” founded in 1993, which he has presided over from its foundation to the present day .
29. Throughout its existence, Veritas co -operated with the gathering of evidence and facts
for the needs of relevant State organs in conducting criminal proceedings for war and other crimes.
Since 1994, Veritas actively co -operated with the Prosecutor of the ICTY, as well as with war
crimes prosecutors in the entire region of the former Yugoslavia. Veritas al so co-operates with
other States, and international and non- governmental organizations that are operating in similar
activities, such as: the State Commission for Detained and Missing Persons of Republic of Serbia,
Bosnia and Herzegovina and Croatia, ICRC, ICMP, OSCE, and UNHCR. The ICRC published the
materials of Veritas in their publication after the conference on missing persons in Geneva in
138
2003 .
30. In his report, Mr. Štrbac explains the methods of work on gathering information on
detained and missing Serbs: and those are,
“information gathered from the family, information from the media, reports of
non-governmental, governmental and international organizations, reports of military
units of international peace keeping forces, memoires archival mate rials, court
records, witnesses’ interviews, visits to sites of executions and burial of victims,
exhumations and identification reports, comparison of lists of missing persons and
data from census of citizens/refugees, publishing lists and information on missing
139
persons in the media” .
31. The report also specifically emphasized that the Veritas information must be transparent,
available to the public, and updated on a regular basis. Periodical publications and bulletins are
136
Statement of expert witness Savo Štrbac, February 2013.
137Ibid., para. 1.
138Ibid., para. 2.
139
Ibid., para 3.2. - 64 -
published and, as of 1999, the lists of killed or missing persons can be found on the Veritas web
page . This information is subject to constant verifications and amendments . 141
32. The information submitted to this Honourable Court within the report are based upon
information received until 31 December 2012. However, the information in Veritas report now is
not final as noted by Mr. Š trbac in his statement 142. To the present date, the data has been
updated and it is still being updated and it is publicly available on the website of Veritas.
33. For the sake of this presentation, I shall primarily focus on the data on the victims of war,
in general, and on the victims of Operation Storm, in particular.
143
34. According to Mr. Štrbac’s report, Veritas recorded 6,284 victims . Un til
31 December 2012, 4,382 victims were buried 144. The number of 1,902 victims are still recorded
as missing 145. Fifty -seven (57) victims were younger than 18, and 1,443, forming 23 per cent of
146
the total number, were older than 60 .
35. In a chronological analysis of the report states that in 1990 two persons were killed. In
1991, 2,571 persons or 41 per cent. In 1992 I will just use the per cents 11 per cent were
killed. In 1993, 10 per cent of the total number were killed. In 1994, 3 per cent, and a total number
of 2,138, or 34 per cent were killed in 1995.
36. In Operation Storm, there were 1,713 victims. It has been established that 73 per cent of
them were male, and 27 per cent were female. It has also been established that 62 per cent of them
147
were civilians, and 38 per cent were uniformed persons .
37. Nine victims were younger than 18 years. Forty -seven (47) per cent of the total number
of victims were older than 60 years. For 3 per cent, or 45 victims, the age was not determined 148.
140
Statement of expert witness Savo Štrbac, February 2013 , para. 4.6.
141
Ibid., para. 4.7.
14Ibid., para. 4.5.
14Ibid., para. 4.2.2.
144
Ibid.
145
Ibid.
14Ibid.
14Ibid., para. 6.3.
14Ibid. - 65 -
38. When analysing the time frame of these events, Mr. Štrbac states that 1,672 persons were
149
killed from the onset of Operation Storm, until the end of 1995 .
39. When focusing on the period of Operation Storm from 4 until 12 August 1995, the report
states t hat a total of 1,513 persons were killed, out of which there were 887 civilians,
616 combatants, and just 10 policemen. At least 254 persons were killed during the attacks on
refugee columns. Out of the number, 228 persons were subsequently exhumed. Onl y in Knin
150
municipality, 357 persons were killed, 237 of them were civilians .
40. Until 31 December 2012, a total of 808 direct victims of Operation were identified and
buried. Among them, there were 451 civilians and 357 uniformed persons 151.
41. The report contains the information that 905 victims of Operation Storm , which is
53 per cent, are still recorded as missing 152.
Conclusion
42. Mr. President, Members of the Court, this concludes our presentation of the witness
testimonies that we proposed should testify viva voce. We submit that they present a credible
picture of the horrific events which are the subject of the counter-claim. By providing a precise
description of the facts the eyewitnesses assist the Honourable Court with your final conclusions
about the different events described in the counter -claim. We have the identical intention in
relation to the statement of the expert Štrbac. The n umbers and data we have summarized today
present only a part of a “ never ending story ” of the tragic fate of the people from the war .
However, even in this form, we believe that they significantly benefit and assist the Court in
reaching its final conclusions on the counter-claim.
43. This concludes our presentation. Thank you.
149
Statement of expert witness Savo Štrbac,para. 6.3.
150Ibid., para. 6.7.
151Ibid., para. 6.3.
152
Ibid., para. 6.3.1. - 66 -
The PRESIDENT: Thank you, M r. Lukić. This completes today’s sitting. The Court will
meet tomorrow morning at 10 a.m. for the continuation of the presentation of Serbia’s
counter-claim. The sitting is adjourned.
The Court rose at 6 p.m.
___________
Public sitting held on Wednesday 12 March 2014, at 3 p.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)