Public sitting held on Friday 28 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 Cri

Document Number
118-20140328-ORA-02-00-BI
Document Type
Number (Press Release, Order, etc)
2014/24
Date of the Document
Bilingual Document File
Bilingual Content

Corrigé
Corrected

CR 2014/24

International Court Cour internationale

of Justice de Justice

THE HAGUE LA HAYE

YEAR 2014

Public sitting

held on Friday 28 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 vendredi28 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
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
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, Universi ty College London, Barrister, Matrix
Chambers, London,

Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Professorial Lecturer in Law,
Yale Law School, New Haven,

Mr. Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,

Ms Maja Seršić, Professor of International Law, University of Zagreb,

Ms Kate Cook, Barrister, Matrix Chambers, London

Ms Anjolie Singh, Member of the Indian Bar, Delhi,

Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London

as Counsel and Advocates;

Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,

Ms Helen Law, Barrister, Matrix Chambers, London

Mr. Edward Craven, Barrister, Matrix Chambers, London,

as Counsel;

H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,

H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the Kingdom of the
Netherlands, The Hague,

as Members of the Delegation; - 5 -

Le Gouvernement de la République de Croatie est représenté par :

Mme Vesna Crnić-Grotić, professeur de droit international à l’Université de Rijeka,

comme agent ;

S. Exc. Mme Andreja Metelko -Zgombić, ambassadeur, directeur général de la division de droit
communautaire et international et des affaires consulaires du ministère des affaires étrangères et
des affaires européennes,

Mme Jana Špero, chef de secteur au ministère de la justice,

M. Davorin Lapaš, professeur de droit international à l’Université de Zagreb,

comme coagents ;

M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l’Univers ité de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,

Matrix Chambers (Londres),

M. Philippe Sands, Q.C., professeur de droit, University College de Londres, avocat,
Matrix Chambers (Londres),

M. Mirjan R. D amaška, professeur de droit émérite de l’Université de Yale (chaire Sterling),
chargé d’enseignement à l’Université de Yale,

M. Keir Starmer, Q.C., avocat, Doughty Street Chambers (Londres),

Mme Maja Seršić, professeur de droit international à l’Université de Zagreb,

Mme Kate Cook, avocat, Matrix Chambers (Londres),

Mme Anjolie Singh, membre du barreau indien (Delhi),

Mme Blinne Ní Ghrálaigh, avocat, Matrix Chambers (Londres),

comme conseils et avocats ;

M. Luka Mišetić, avocat, Law Offices of Luka Misetic (Chicago),

Mme Helen Law, avocat, Matrix Chambers (Londres),

M. Edward Craven, avocat, Matrix Chambers (Londres),

comme conseils ;

S. Exc. M. Orsat Miljenić, ministre de la justice de la République de Croatie,

S. Exc. Mme Vesela Mrđen Korać, ambassadeur de la République de Croatie auprès du Royaume
des Pays-Bas,

comme membres de la délégation ; - 6 -

Mr. Remi Reichhold, Administrative Assistant, Matrix Chambers, London,

Ms Ruth Kennedy, LL.M., Administrative Assistant, University College London,

as Advisers;

Ms Sanda Šimić Petrinjak, Head of Department, Ministry of Justice,

Ms Sedina Dubravčić, Head of Department, Ministry of Justice,

Ms Klaudia Sabljak, Ministry of Justice,

Ms Zrinka Salaj, Ministry of Justice,

Mr. Tomislav Boršić, Ministry of Justice,

Mr. Albert Graho, Ministry of Justice,

Mr. Nikica Barić, Croatian Institute of History, Zagreb,

Ms Maja Kovač, Head of Service, Ministry of Justice,

Ms Katherine O’Byrne, Doughty Street Chambers,

Mr. Rowan Nicholson, Associate, Lauterpacht Centre for International Law, Unive rsity of
Cambridge,

as Assistants;

Ms Victoria Taylor, International Mapping, Maryland,

as Technical Assistant.

The Government of the Republic of Serbia is represented by:

Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of

the Netherlands, former Legal Adviser of the Ministry of Foreign Affairs,

as Agent;

Mr. William Schabas, O.C., M.R.I.A., Professor of International Law, Middlesex University
(London) and Professor of International Criminal Law and Human Rights, Leiden University,

Mr. AndreasZimmermann, LL.M. (Harvard), Professor of International Law, University of
Potsdam, Director of the Potsdam Centre of Human Rights, Member of the Permanent Court of

Arbitration,

Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Professor of International Law, University of
Glasgow, - 7 -

M. Remi Reichhold, assistant administratif, Matrix Chambers (Londres),

Mme Ruth Kennedy, LL.M., assistante administrative, University College de Londres,

comme conseillers ;

Mme Sanda Šimić Petrinjak, chef de département au ministère de la justice,

Mme Sedina Dubravčić, chef de département au ministère de la justice,

Mme Klaudia Sabljak, ministère de la justice,

Mme Zrinka Salaj, ministère de la justice,

M. Tomislav Boršić, ministère de la justice,

M. Albert Graho, ministère de la justice,

M. Nikica Barić, Institut croate d’histoire (Zagreb),

Mme Maja Kovač, chef de département au ministère de la justice,

Mme Katherine O’Byrne, Doughty Street Chambers,

M. Rowan Nicholson, Associate au Lauterpacht Center for International Law de l’Université de
Cambridge,

comme assistants ;

Mme Victoria Taylor, International Mapping (Maryland),

comme assistante technique.

Le Gouvernement de la République de Serbie est représenté par :

M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des

Pays-Bas, ancien conseiller juridique au ministère des affaires étrangères,

comme agent ;

M. William Schabas, O.C., membre de la Royal Irish Academy, professeur de droit international à
la Middlesex University (Londres) et professeur de droit pénal international et des droits de
l’homme à l’Université de Leyde,

M. Andreas Zimmermann, LL.M. (Université de Harvard), professeur de droit international à
l’Université de Potsdam, directeur du centre des droits de l’homme de l’Université de Potsdam,
membre de la Cour permanente d’arbitrage,

M. Christian J. Tams, LL.M., Ph.D. (Université de Cambridge), professeur de droit international à
l’Université de Glasgow, - 8 -

Mr. Wayne Jordash, Q.C., Barrister, Doughty Street Chambers, London, Partner at Global Rights
Compliance,

Mr. Novak Lukić, Attorney at Law, Belgrade, former President of the Association of the Defense
Counsel practising before the ICTY,

Mr. Dušan Ignjatović, LL.M. (Notre Dame), Attorney at Law, Belgrade,

as Counsel and Advocates;

H.E. Mr. Petar Vico, Ambassador of the Republic of Serbia to the Kingdom of the Netherlands,

Mr. Veljko Odalović, Secretary-General of the Government of the Republic of Serbia, President of
the Commission for Missing Persons,

as Members of the Delegation;

Ms Tatiana Bachvarova, LL.M . (London School of Economics and Political Science), LL.M.
(St. Kliment Ohridski), Ph.D. candidate (Middlesex University), Judge, Sofia District Court,

Bulgaria,

Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of the Prosecutor for
War Crimes of the Republic of Serbia,

Mr. Igor Olujić, Attorney at Law, Belgrade,

Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,

Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden(candidate)),

Mr. Georgios Andriotis, LL.M. (Leiden),

as Advisers. - 9 -

M. Wayne Jordash, Q.C., avocat, Doughty Street Chambers (Londres), associé du cabinet Global
Rights Compliance,

M. Novak Lukić, avocat, Belgrade, ancien président de l’association des conseils de la défense
exerçant devant le TPIY,

M. Dušan Ignjatović, LL.M. (Université Notre Dame), avocat, Belgrade,

comme conseils et avocats ;

S. Exc. M. Petar Vico, ambassadeur de la République de Serbie auprès du Royaume des Pays-Bas,

M. Veljko Odalović, secrétaire général du Gouvernement de la République de Serbie, président de
la commission pour les personnes disparues,

comme membres de la délégation ;

Mme Tatiana Bachvarova, LL.M. (London School of Economics and Political Science),
LL.M. (Université St. Kliment Ohridski), doctorante (Middlesex U niversity); juge au tribunal

de district de Sofia (Bulgarie),

M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,

M. Igor Olujić, avocat, Belgrade,

M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,

M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),

M. Georgios Andriotis, LL.M. (Université de Leyde),

comme conseillers. - 10 -

The PRESIDENT: Good afternoon. Please be seated. The sitting is now open and I give the

floor to Professor Schabas to continue Serbia’s presentation, this time on its counter -claim. You

have the floor, Sir.

Mr. SCHABAS:

REBUTTAL TO THE ORAL PLEADINGS OF CROATIA IN RESPONSE
TO SERBIA S COUNTER -CLAIM

Introduction

1. Thank you, Mr. P resident. Your Excellencies, my second presentation today will deal

with issues related to Croatia’s first round of arguments concerning the counter -claim. My speech

is structured as follows. First, I will speak of the planner of Operation Stor the Croatian

President at the time, Franjo Tudjman. I will then address in turn: the significance of the issue of

legality and the shelling of the four towns; I will speak of the limited relevance of the ICTY

Gotovina decisions in the present proceedings, be aring in mind the question posed by

Judge Bhandari; the Brioni Minutes and the broader context of the preparation of Operation Storm;

the conduct of Operation Storm itself with special attention to the targeting of retreating columns

and the killing of t hose who were left behind by the Croatian military. And I will conclude my

presentation with the issue of returnees and some evidence-related matters and the question of

impunity.

The planner of Operation Storm

2. Your Excellencies, given the attention that Serbia had attached to the personal role of

President Tudjman, to his central position in the planning and execution of Operation Storm, to his

provocative and controversial political views, his racist attitudes towards Serbs, Jews and Muslims

that he had manifested, and his sympathies to an extremist organization with fascist roots, it was to

be expected that Croatia might provide some kind of explanation and perhaps even a defence of its

President during the decade that concerns us. Shouldn’t Croati a have addressed the charge about

Tudjman’s anti-Semitism, explaining perhaps that his remarks had been taken out of context, or

that he was misrepresented and that in reality some of his best friends were Jews. Or perhaps when - 11 -

he spoke about “cancerous S erbs”, he was speaking about public health issues and his remarks

were misunderstood.

3. Alas, nothing of the sort. Tudjman’s name barely appears either in the written

submissions or in the transcripts of Croatia’s oral presentations. Could this be the first time that the

President of a State appearing before the Court was so criticized and yet the State did not come to

his defence? Croatia has very ably answered some of the submissions of Serbia with respect to

Operation Storm. But it has passed over some others. Tudjman seems to be one element of the

picture that it has chosen to ignore.

4. Why is Tudjman so important and why is Croatia’s silence on the subject so revealing?

May I invite the Court to turn to one aspect of the allegations concerning Operation Storm, one that

is deeply influenced by Tudjman himself, and on which we have no explanation from Croatia.

5. There is much evidence that Tudjman intended to settle the Krajina with Croats. This

evidence is quite crucial because there was one obstacle standing in the way of Tudjman’s plans.

Close to 200,000 Serbs were already living there. Operation Storm is described in Croatia’s

pleadings as a war of “liberation”. That may have been one objective. But the other was to create

lebensraum for hundreds of thousands of Croats.

6. The Court will recall Tudjman’s terrible words spoken in Knin, one of the fours towns, in

mid-August 1995, a few weeks after the military attack: (screen on)

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

were gone in a few days as if they had never been here, as I said. T1ey did not even
have time to collect their rotten money and dirty underwear.” (Screen off)

7. Peter Galbraith, the United States Ambassador to Croatia from 1993 to 1998, testified

before the ICTY that Tudjman preferred “a reasonably or basically homogenous Croatia” 2.

Galbraith said that Tudjman “believed and stated that the Serbs in Croatia were too numerous and

constituted a strategic threat to the state” 3. Tudjman “considered both Muslims and Serbs as part of

1
Prosecutor v. Gotovina et al. (IT-06-90-T), Judg ement, 15 April 2011, paras. 2009 and 2306. Also
Prosecutor v. Gotovina et al. (IT-06-90-A), dissenting opinion of Judge Fausto Pocar, 16 Nov. 2012, para. 26.
2Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 April 2011, para. 1999.
3
Ibid. - 12 -

4
a different civilization than Croats” and he “believed in the idea of a “Greater Croatia” .

Ambassador Galbraith told the Tribunal that he had frequent contacts with Tudjman and other

5
senior officials, meeting them several times a week and often several times a day .

8. Following Operation Storm, Tudjman told Galbraith that the Krajina Serbs could not

6
return . A United States Embassy cable dated 11 December 1995 said Tudjman had told a visiting

American Congressman that it would be “impossible for these Serbs to return to the place where

7
their families lived for centuries” . Galbraith explained that Tudjman intended for Croats from the

diaspora to settle in Krajina. He took action to prevent the return of Se rbs including enacting

legislation to confiscate property. Galbraith associated the obstacles to return with crimes

committed against Serbs, stating that

“given the disciplined nature of the HV [ Hrvatska Vojska, i.e., the Croatian Army]
and the fact that the leadership was fully in command and had full power to prevent
crimes, these crimes that were committed, in particular the destruction of Serb

propert8, were either ordered, or it was a matter of policy to tolerate or encourage
them” .

A cable from the United States Embassy dated 31 August 1995 said “the Croatian public

announcement to give security guarantees to the Serbs in the region was intended for Western

propaganda purposes and the goal of Croatia was to ‘ethnically cleanse’ the Krajina to make r oom

9
for 1,000,000 Croatian refugees” . Ambassador Galbraith said that “in his experience this correctly

10
reflected the thinking of Croatian officials” .

9. Meetings of high- level Croatian political and military officials were held in August and

11
September 1995 to address the policy on return of Croats and Serbs to the Krajina . The

discussions were about resettling Croats in the homes and villages previously inhabited by Serbs

12
including the development of various incentives to promote this objective . In this context, in the

Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 April 2011, para. 1999.

Ibid., para. 1998.
6
Ibid., para. 2000.
Ibid.

Ibid., para. 2001.

Ibid., para. 2002.
10
Ibid.
1Ibid., para. 2027.

1Ibid., paras. 2028-2043. - 13 -

course of a presidential meeting held on 25 October 1995, Tudjman said that “the return of

3,000 Serbs who wished to return, out of a total of 300,000 that had left, did not bother him” 13.

This comes from transcripts of the meeting. The subject was discussed under the euphemisms of

addressing “Croatia’s demographic situation” 14 and the “demographic future of the liberated

15
areas” .

10. Mr. President, at a meeting held on 17 August 1995, Tudjman and

PrimeMinister Valentić discussed not conducting a population census because it would be

“politically damaging” 16. Later in the year, Tudjman expressed the view that 98 per cent of Serbs

17
had left Croatia . Tudjman called upon Croats not to destroy the homes of Serbs who had left

because he said “this is now Croatian property”. He planned to resettle hundreds of thousands of

18
Croats in the empty Serb homes .

11. The Croatian leadership, including Tudjman, met an American delegation on

18 August 1995 that included Richard Holbrooke. When Holbrooke said that Serbs should be

allowed to return, Tudjman replied that he “would be very content if about 10% of them

returned” 19.

12. In findings of fact that are in no way disturbed or compromised by the Appeals Chamber

ruling, and that have nothing t o do with artillery bombardment, the ICTY Trial Chamber in

Gotovina found, as a question of fact, that following Operation Storm there were “immediate

efforts, on a policy and legislative level, to prevent the population from returning” 20. According to

the judgement:

“Immediately following the forcing out of the Krajina Serbs, members of the
Croatian political and military leadership took various measures, on a policy and
legislative level, aimed at preventing them from returning. This included restrict ive

and discriminatory measures with respect to the Krajina Serbs’ property and housing.

1Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 April 2011, para. 2042.
14
Ibid., paras. 2035, 2055, 2317.
15
Ibid., paras. 2063, 2094.
1Ibid., para. 2007.

1Ibid.
18
Ibid., para. 2008.
19
Ibid., para. 2004.
2Ibid., para. 2310. - 14 -

These measures aimed at ensuring that the removal of the Krajina Serb population
became permanent.” 21

An important aspect of this finding was that it was clear eviden ce of State policy. In terms of the

criminal proceedings, it was relevant evidence of the common objective of what the Trial Chamber

called “the Croatian political and military leadership” 2. The Chamber also concluded that

23
Tudjman intended to repopulate the Krajina with Croats . The Trial Chamber concluded that

because of the policy to encourage resettlement of Croats, “the return of Serbs should be limited to

a minimum” 24.

13. This evidence indicates the intent of Tudjman to destroy the Serb population of the

Krajina in whole or in part. Operation Storm may well have had more than one objective. There is

nothing unusual about this observation. In complex armed conflicts, various forces and

motivations may be at work. Multiple motivations are also p resent in the genocides in

Nazi-occupied Europe, in Rwanda and in Armenia.

14. This evidence of Croatia’s intent to remove the Serbs from the Krajina and to resettle the

region with Croats is a powerful indicator of genocidal intent because it contributes to our

understanding of the motivation. It demonstrates the fallacy of the suggestion that there is some

plausible benign explanation for the attack. Croatia needs to explain this evidence that the Croatian

leadership intended the permanent elimination of the Serb population and it has not done so. It has

ignored it.

Jus ad bellum and jus in bello

15. Mr. President, Your Excellencies, a great deal has been said during these proceedings

about the Gotovina decisions. The prosecution’s case in Gotovina was largely built upon the

artillery bombardment of the towns and that was its downfall. This may well have been a tactical

decision by the Prosecutor because of the evidence in his possession, the role of the three accused

in the military operation, and perhaps simply a professional judgment about the theory of the case.

Although the ICTY materials are obviously relevant and need to be addressed, they do not frame

21
Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 April 2011, para. 2312.
22Ibid., para. 2314.

23Ibid., para. 2316.
24
Ibid., para. 2057. - 15 -

the case that Serbia has submitted to the Court. Serbia’s counter-claim cannot be squeezed into the

template created by the Prosecutor. It relies upon evidence that was not before the ICTY and on

theories of the case that are not the same as those adopted by the Prosecutor.

16. Let us assume, for the sake of argument, that the artillery bombardment of the four towns

was entirely consistent with the laws or customs of war. Let us assume that only military

objectives were targeted, and that the choice of weapons was proportionate, aimed at minimizing

collateral damage, in particular towards non -combatants. Let me be clear, Your Excellencies, that

Serbia is not making any concession and that its position is that the artillery bombardments were

unlawful. But to illustrate a point, let us assume that they were in compliance with the law of

armed conflict.

17. There is nothing inconsistent in the proposition that the law of armed conflict was

observed, the jus in bello, and yet that the attack itself was unlawful in that it sought to destroy the

Serb population of the Krajina, in whole or in part. This is nothing more than a classic proposition

of international humanitarian law. A party to a conflict may respect the jus in bello yet be in

breach of the jus ad bellum, just as the opposite may be true.

18. Suppose that Tudjman and his cohorts at Br ioni had indeed been insistent upon respect

for the law of armed conflict, and that their orders had been observed. Once again, Serbia is not

admitting this to be the case, but is submitting the hypothesis in order to demonstrate its point.

Could the use of force consistent with international humanitarian law nevertheless be compatible

with the plan to remove an ethnic group from a territory? I do not think this is a difficult

proposition.

19. The Serb civilians in the four towns would have been  indeed they were  terrified by

the artillery bombardment. This would be the case regardless of whether the targeting was lawful

or unlawful. Could civilians even be expected to know about the legality of the targeting, with

shells whizzing over their heads, some of them inevitably falling wide of the mark? Under such

circumstances, when urban centres are being bombarded by heavy guns located 20 km away, do

civilians stand by like spectators at a fireworks display, confident that they are in no danger?

20. T here is much compelling evidence that the shelling of the four towns had the

consequence of terrorizing the civilian inhabitants. In Gotovina, the Trial Chamber concluded that - 16 -

“the artillery attack instilled great fear in those present in Knin on 4 and 5 August 1995. For the

vast majority, if not all, of those leaving Knin on 4 and 5 August 1995, this fear was the primary

and direct cause of their departure” . This conclusion, Mr. President, Members of the Court, is not

dependent upon the legality of the attack and nor is it jeopardized by the Appeals Chamber

decision.

21. In its reply to the counter -claim during these hearings, counsel for Croatia stated:

“Absent unlawful shelling and absent an intention forcibly to displace Serbs from the Krajina, an

incriminating reading of the Brioni Minutes is not possible, as the ICTY Appeals Chamber rightly
26
concluded.” This is not a correct statement of the law and to the extent that Croatia accurately

reflects the findings of the Appeals Chamber, the latter’s decision is wrong. Even if the shelling

was not unlawful, and even if the intent was not to displace the Serbs forcibly  a point which

Serbia raises only for the sake of argument  those who schemed at Brioni may have concluded

that lawful shelling woul d be enough to effect the removal of the Serbs, at least from the four

towns. If that were their intent, regardless of the means they chose to employ, the conspiracy at

Brioni would still be criminal in nature.

22. Croatia has frequently tried to portray the departure of the Krajina Serbs as something

explained by factors independent of the Croatian military attack. It returned to this point in the oral

submissions last week. When a targeted population departs from a territory many factors may be at

work in motivating the tens of thousands of individual decisions that are taken as to whether to

leave or to stay. My own ancestors fled anti -Semitism in Nazi Germany during the 1930s. They

are deemed by institutions like the Holocaust Museum in Washington to be genocide survivors.

Why did they leave? Perhaps there were complicated reasons. But it strains credulity to think that

Nazi anti-Semitism, and quite possibly their fear  justifiable, as it turned out  that much worse

awaited them if they remained in Germany, was not a central factor in their decision. Can their

departure from Germany, however voluntary it might appear in some respects, be dissociated from

the Nazi plan to destroy the Jews?

2Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 Apr. 2011, para. 1743.

2CR 2014/19, p. 51, para. 29 (Starmer). - 17 -

23. The complexity of individual decision-making in the Krajina cannot conceal the fact that

at the very time Serbs were fleeing the territory in huge numbers, Tudjman was plotting to remove

them permanently. He had a plan not to allow them to return. He intended to use their land and

their houses and the pr operty they left behind so that Croats from the diaspora could settle in the

Krajina.

The ICTY Gotovina decisions (answer to the question posed by Judge Bhandari)

24. I would now turn to the question posed by Judge Bhandari concerning the probative

value of the findings contained in the ICTY Gotovina Trial Chamber Judgement in light of the

Appeals Chamber ruling. In principle, the Respondent agrees with the Applicant that the standard

set out in paragraph 223 of the Bosnia Judgment is applicable: “the Court concludes that it should

in principle accept as highly persuasive relevant findings of fact made by the Tribunal at trial,

unless of course they have been upset on appeal” 27. The question is what the relevant findings in

the Gotovina case are, in light of Serbia’s case before the Court.

25. There are essential differences between the Gotovina case before the ICTY and the

subject-matter of the counter -claim. The subject -matter of the proceedings before the ICTY is

considerably narrower than the subject-matter of the counter-claim. A conspicuous example in this

regard is the shelling of the columns of Serb refugees and military personnel during Operation

Storm. Although these events took place during the indictment period, they were not charged by

the Prosecutor. The ICTY did not make findings in this regard.

26. In addition to relying on the evidentiary material submitted for examination in the ICTY

proceedings, Serbia has produced additional evidence before the ICJ. Witnesses presented by

Serbia, for example Božo Šuša, Ilija Babić, and Jela Ugarković, did not testify at the ICTY,

although they had been approached by the ICTY Prosecutor. In fact, the Respondent’s legal team

approached these new witnesses through the process of co -operation with the ICTY Office of the

Prosecutor. The Applicant chose not to exercise its right of cross-examination.

27. Although both the Gotovina case and the counter -claim deal with Operation Storm,

Gotovina cannot be equated to Serbia’s counter -claim. According to counsel for Croatia, who

2Application of the Convention on the Prevention and Punishmenof the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 134. - 18 -

analysed the legal significance of the Gotovinadecisions, the Trial Chamber found that the accused

were

“part of a joint criminal enterprise, whose common purpose was permanently to
remove the Serb civilian population from the Kr ajina region by ordering unlawful
artillery attacks on four towns, and by failing to make serious efforts to prevent or
investigate crimes committed by [their] subordinates” . 28

Serbia’s counter-claim is different. It establishes that Croatia killed and h armed members of the

group of Krajina Serbs as part of a wider group of Serbs from Croatia with intent to destroy them

as such. In doing so, Croatia applied various measures. Artillery attack was only one of the tools

directed to the destruction of the g roup, while the forcible removal of the population was another

one, parallel with the physical destruction of the ethnic Serbs in the Krajina.

28. In Gotovina, the ICTY Prosecutor adopted a rather narrow approach without considering

in detail other tools employed by the Croatian authorities for the physical destruction of the ethnic

Serbs in Krajina, apart from the unlawful artillery shelling of the towns in United Nations Sector

South  United Nations Sector North was not investigated by the Prosecutor  and persecution.

Serbia has presented to the ICJ two different graphics. One is a map of killings reflected in the

Gotovina indictment prepared by the Office of the Prosecutor, the other is a map prepared by our

29
team based on evidence in the present proc eedings . These were in the judges’ folders of 12 and

13 March 2014, items 16 and 17. And they show the differing evidentiary basis of the two

proceedings.

29. Mr. President, Members of the Court, w hen discussing the evidence gathered in the

course of the Gotovina proceedings, the Agent for Serbia referred to statements of witnesses who

testified before the ICTY, and who had perceived and witnessed in person the crimes or  more

frequently  the consequences of the crimes. The Respondent observed that t he reversal of the

Trial judgement by the ICTY Appeals Chamber, thus, acquitting Gotovina and Marka č, does not

impact upon the probative weight of the witness statements in that case. As the Agent for Serbia

emphasized, “[t]he inversion of the ICTY legal position concerning the existence of evidence on

2CR 2014/19, p. 42, para. 3 (Starmer).

2Judges’ folders of 12 and 13 March 2014, items Nos. 16 and 17. - 19 -

the joint criminal enterprise was not based on a l ack of trust in the witnesses, among whom there

30
were many officers of the UN blue helmets”.

30. The Respondent sometimes refers to the summary of witness statements that can be

found in the Gotovina Trial judgement rather than to the transcripts of their statements before the

Trial Chamber, such as the statement of Ambassador Galbraith, because this reference, in the

Respondent’s view, is more convenient to the Court. However, it is for the Court to evaluate the

probative weight of each of these statements.

31. One of the very unfortunate consequences of the Gotovina judgements is that they have

focused the debate on the shelling of the four towns by artillery units. This has led to a very

misleading portrait of Operation Storm wherein important elements have been obscured. As I have

tried to explain, even if the shelling were entirely lawful, that does not undermine the charge that

the attack was directed at the Serb population of the Krajina, that it was unlawful, and that it was

genocidal in nature.

32. Distinguished Judges, as things stand today  and this will not change given the

completion strategy of the ICTY  there is a gaping hole in the picture presented by the ICTY

case law, taken as a whole. Nobody has been convicted for Operation Storm . The message that

emerges from the Tribunal, if the majority ruling of the Appeals Chamber in Gotovina is taken as

being definitive, is that the attack that took place in August 1995 in Krajina was not unlawful.

Does this really do justice to the intern ational community’s commitment to address impunity, to

seek truth, to promote reconciliation, and to assign blame where it is deserved? We know that

Operation Storm was intended to remove the Serb population from the Krajina; we know that its

masterminds planned to prevent the return of the Serbs and to resettle the territory with Croats; we

know that it was attendant with terrible violence including terrifying bombardment of urban

centres; we know that it was followed by many cases of murder and summar y execution of those

who stayed behind, mainly the elderly. We know that the demographic change that was sought by

those who organized Operation Storm has been successful, and that the Serb minority population in

the Krajina has declined dramatically and, it would appear, permanently. The Court should bear all

3CR 2014/16, p. 37, para. 13 (Obradović). - 20 -

of this in mind when it considers the relevance of the ICTY materials. Sometimes, and this was the

case in Bosnia, they greatly assist in clarifying the truth. And it seems that sometimes, and it is the

case in these proceedings, the ICTY has bequeathed a portrait of the conflict that is incomplete, that

has a glaring lacuna.

The Applicant’s observations concerning the status of the ICTY Appeals Chamber

33. I would like to comment briefly on some observations advanced by counsel for Croatia

last week concerning the status of the ICTY Appeals Chamber.

34. Croatia seems to have misunderstood certain remarks about the electoral process of

judges. Of course, we all know that judges are elected in a transparent process. In the case of the

ICTY, this has been by the General Assembly. I would just point out, for the sake of accuracy

here, that in fact judges at the ICTY are no longer elected by the General Assembly 31, although all

of those who sat in the Gotovina cases were initially elected. When their terms expired, they were

renewed by Security Council resolution and not by the election process set out in the Statute of the

Tribunal. Indeed, the Security Council now appoints new judges to the Tribunal. And, of course,

that is an entirely transparent process.

35. Be that as it may, the point advanced by the Respondent in the first round of pleadings

was that the decision by the judges themselves to designate certain persons among them to sit in the

Appeals Chamber is not at all a transparent process. Nothing the Applicant said disputes that

assertion. I suppose if Croatia disagreed, it might have indicated the criteria upon which Appeals

Chamber members are selected and provide some evidence of this. But it did not and it cannot.

36. In its oral submissions the Respondent urged the Court to take a nuanced approach to the

Gotovina decisions, bearing in mind the rather complex dynamics. This was not really an

arithmetical proposition. That word better describes Croatia’s simplistic approach to the two

decisions, which ultimately falls back on the assertion that three judges of the Appeals Chamber

overrule three judges of the Trial Chamber. I would like to reiterate that this may be true for the

parties  the prosecutor and the defendant  but it is not necessarily an appropriate approach for

a Court such as the ICJ where the value of decisions taken by other judicial bodies can never be

3United Nations Security Council resolution 1837 (2008), operative part (OP) 1 and 2; resolution 1877 (2009),
OP 2; resolution 1931 (2010), OP 3, 4; resolution 1993 (2011), OP 1. - 21 -

anything more than persuasive. Serbia’s suggestion is that the composition of the Chambers, the

strong dissents, and most of all the fragile reasoning of the Appeals Chamber majority compel this

Court to look more closely at the materials as a whole. Dissenting judgments can be very relevant

in this context. Even here at the ICJ it is not unknown for a judge to pen a dissent once in a while.

The Brioni transcript

37. One of the important evidentiary components of the counter -claim is the Brioni

transcript. Serbia asks the Court to take a fresh look at the Minut es of this infamous meeting.

Instead of reading the Brioni Minutes in light of the decisions of the two Chambers of the ICTY,

Serbia suggests that the Court take the Minutes as one element of evidence among many others that

now make up the record in the present proceedings. In many respects, the ICJ is just as well placed

as the Chambers of the ICTY to assess the import of the words spoken at Brioni.

38. I should note at the outset that the ICTY Trial Chamber found that the Brioni transcript

32
accurately reflected the discussions , and nothing in the Appeals Chamber decision disputes this.

Moreover, Croatia itself filed the Brioni transcript before the Court in the judges’ folders. It has

raised complaints about the text in its written submissions, but no longer seems to press that point

very strongly, if at all.

39. Counsel for the Applicant expressed some indignation at the association made in the first

round of the Respondent’s oral pleadings between Brioni and Wannsee. The Applicant simply did

not pay close attention to what was said. The sense of the comment was not to suggest a clumsy

and inappropriate parallel between the Nazi Holocaust and Operation Storm. The comment was

about how records of meetings where serious human rights violations and atrocities are plotted may

be interpreted perversely by those who seek to minimise or deny their significance. The

observation was that, even when the minutes or records of particularly notorious meetings like

Wannsee are looked at in isolation and out of c ontext, there are those who attempt to portray them

as harmless or innocent. Taken in isolation, the Brioni Minutes may indeed lend themselves to

different interpretations, of which only one is that they manifest Tudjman’s “final solution” of the

Krajina Serb problem. But when taken in context, the available interpretative hypotheses diminish

3Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 Apr. 2011, para. 1989. - 22 -

dramatically. And by context, Your Excellencies, I do not mean simply reading the whole

paragraph, or the whole page. Part of the context consists of Tudjman’s background, including his

known extremist and racist views, manifested in statements both before and after Operation Storm,

and his plans to destroy the Serb population and replace it with Croats.

40. Tudjman’s views and intentions are very important in assessing whether Croatia attacked

the Serb population of the Krajina with the intent to destroy it, in whole or in part. When

questioned in the Gotovina trial proceedings, Ambassador Galbraith testified that  and you will

see it on the screen: “irrespective of formal structures, all decisions were made by Tudjman and his

33
key advisors” . Galbraith also stated that, since the policy to remove the Serbs permanently and to

resettle the Krajina with Croats was Tudjman’s policy, it was also Croatia’s policy 34. G albraith

added that senior figures in the Croatian leadership, including Šarinić, shared this view. He said

that Šarinić had described Serbs as “a cancer on the stomach of Croatia” 35. Please also recall that

last May a Trial Chamber of the ICTY convicted several persons, on the basis of their participation

in a joint criminal enterprise with respect to Bosnia and Herzegovina, of which Franjo Tudjman

was at the top. The purpose of the joint criminal enterprise was to  and I quote from the French

version, there is only a French version of the judgement: “opérer le nettoyage ethnique de la

population musulmane sur le territoire revendiqué comme étant croate” 36 conduct ethnic

cleansing of the Muslim population on the territory that is claimed to be Croatian .

41. In its oral submissions, Serbia charged that the illegality of the Brioni meeting was

manifested when Tudjman said that as a result, the civilians will set out, “and then the army will

follow them, and when the columns set out, they will have a psychological impact on each other” 3.

He was thereby targeting civilians when he should have been protecting them. Although

challenged to address this issue in its response to the counter -claim, Croatia said nothing and

provided no attempt at an explanation.

33
Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 Apr. 2011, para. 1998.
34
Ibid, para. 2000.
35Ibid.
36
Prosecutor v. Prlić et al. (IT-04-74-T), Judgement, 29 May 2013, Vol. 4, para. 1232.
37
Brioni Minutes, p. 15. - 23 -

42. The Applicant emphasizes the fact that Tudjman ordered an evacuation corridor to be left

38
to the fleeing Serbs . However, Tudjman’s suggestion that the Serbs should be left with an avenue

of retreat  an evacuation corridor  does not stem from any humanitarian considerations.

Careful perusal of the relevant sections of the transcript reveals that the only motive behind this

order was Tudjman’s concern that otherwise, if the Serbs were forced to stand and “fight to the

39
bitter end”, this would exact “a greater engagement and losses on [the Croatian] side” .

43. There are many other terrible statements in the Brioni transcript. Aside from the remarks

that have already been referred to in the oral submissions, may I draw the attention of the Members

of the Court to Tudjman’s explicit admonition to his generals: “remember [in particular] how

many Croatian villages and towns have been destroyed [and] that [this] still [was] not the situation

in Knin” 4. Tudjman also called for “complete demoralisation” o f the enemy  the Serbs  so

41
that they should “get a taste of it” and be  he used the term  “paid back” . Tudjman did this

in full awareness of the bloodthirsty and revengeful sentiments of some of the Croatian soldiers

responsible for the execution of the military operation. At Brioni, Tudjman was informed that the

Croatian infantrymen who were heading towards Knin all had reason to fight there and that at the

42
moment “it [was] difficult to keep them on a leash” .

44. Admittedly, different interpretations may be adopted if the Brioni Minutes are read in

isolation. And the same can be said of Wannsee. But when read in context, bearing in mind

Tudjman’s chauvinist and racist views, and his desire to resettle the emptied Krajina with Croats,

as well as his dominant role within the Croatian military and political hierarchy, any benefit of the

doubt dissipates. A correct understanding of Brioni emerges from an appreciation of what went

before and what went after, as well as what was said, just as it does with Wannsee. There can be

no reasonable doubt about what was being planned. It was the physical destruction of the Krajina

Serbs, in whole or in part.

38
Reply of the Republic of Croatia (RC), 20 Dec. 2010, para. 12.16; Additional Pleading of the Republic of
Croatia (APC), 30 Aug. 2012, para. 4.16; Prosecutor v. Gotovina et al. (IT -06-90-T), Judgement, 15 Apr. 2011,
para. 2304.
39Brioni transcript, p. 7.

40Ibid., p. 10.
41
Ibid., pp. 10-11.
42Ibid., p. 10; statement of Ante Gotovina. - 24 -

Immediate context preceding Operation Storm

45. Mr. President, Members of the Court, t he Brioni Minutes contain unequivocal, clear-cut

and straightforward statements of the participants in the meeting which reveal that, a t the time of

the planning of Operation Storm, the Croatian leadership was well aware of the willingness of the

43
Serb authorities to achieve a peaceful resolution of the conflict . Croatia knew that the Yugoslav

Government had condemned Croatian aggression and was calling upon the international

44
community to ensure the cessation of hostilities and a political dialogue . The Croatian leadership

knew that the Serbs had accepted the Stoltenberg plan and had allowed the United Nations

45
Confidence Restoration Operation to deploy on the borders as observers . Neither the testimonies

of witnesses Slobodan Lazarević and Peter Galbraith, nor the statements of Savo Štrbac, to which

the Applicant refers 46, lead to a different conclusion. They all relate to a period preceding the

meeting at Brioni. On 31 July 1995 the Serbian willingness to engage in peaceful n egotiations was

acknowledged by the participants at Brioni as they discussed the launching of Operation Storm.

46. The possibility of a negotiated settlement became a matter of serious concern to the

Croatian authorities, who expressed anxiety about the w illingness on the part of the Serbs for a

47
peaceful solution of the conflict . The Croatian leadership was alarmed that the Serb attitude at

the time was depriving Croatia of the necessary justification to launch a military attack in

48 49
Krajina . The participants in Brioni were eager to “find some kind of a pretext” for their actions .

In the same spirit, o n the eve of Operation Storm, Croatia sent a misleading message to the Serbs

and to the international community by pretending to be engaged in peace negot iations in Geneva.

The Croatian leadership assumed this attitude as a mask  to give the impression of accepting the

43
Brioni transcript, pp. 1-2.
4Ibid, p. 2.

4Ibid, p. 1.
46
CR 2014/19, p. 20, para. 32 and, accordingly, p. 21, para. 34 (Crnić -Grotić).
47
Rejoinder of Serbia (RS), para. 682 which reflects the statement of the Croatian D eputy Prime Minister,
Mr. Granić, at the 257th closed session of the Croatian Government.
4Brioni transcript, p. 1.

4Ibid. - 25 -

talks held in Geneva  while preparations for the launch of the military attack were already

underway . 50

47. In its efforts to impute unw illingness to negotiate to Serbia, the Applicant refers to the

mobilization of the Serb army on 28 July 1995 51. It should be obvious enough that this was a

purely defensive measure. The Krajina Serbs were preparing for defensive action. The Serbs were

preparing for retreat, not attack, and Croatia understood this very well.

Targeting of refugee convoys

48. I turn now to the attacks on the refugee convoys, a subject that was not addressed by the

ICTY. Applicant reiterates its contention from its written pleadings that “on occasion, some [of the

mixed columns] were caught in the crossfire” 52. In the words of the Applicant, the Respondent

53
“admits” that the columns consisted of civilians and combatants . This is a misconception. Not

only has Serbia never denied the mixed character of the columns, it has strongly highlighted this as

evidence of the genocidal intent of the Croatian authorities towards the Serbs in Krajina.

49. Although Croatia contends that it has never stated that civilians become legitimat e

targets when they flee with soldiers, at the same time it puts a strong emphasis on the fact that the

armed members of the RSK’s army were travelling in the columns and continued to attack the

Croatian army as they withdrew. Hence, ultimately, the Appli cant seems to imply the existence of

some kind of a justification for the shelling of the mixed columns by the Croatian forces.

50. The attacks on the refugee convoys are proved on the basis of the witness statements

provided by the Respondent, and I refe r the Court t o the statements of witnesses

Mirko Mrkobrad 54, Božo Šuša , the ICTY witnesses: Marija Večerina , Dušan Dragićević , 57

50
Ibid, p. 2; RS, paras. 674-677 referring to the witness testimonies of Babić and Akashi in proceedings before
the ICTY.
51CR 2014/19, p. 24, para. 4 (Singh).

52CR 2014/19, p. 31, para. 27 (Singh) retelling verbatim the Applicant’s contentions Reply of Croatia (RC),
para. 10.101; APC, para. 3.68.

53CR 2014/19, p. 31, para. 27 (Singh).
54
Rejoinder of Serbia (RS), para. 757, District Court in Požarevac, Serbia, Minutes of witness hearing of
Mirko Mrkobrad, dated 13 March 1997 (Ann. 52).
55
CR 2014/17, p. 36, para. 79 (Obradović).
56CR 2014/17, p. 36, para. 81 (Obradović) ; RS, Ann. 47.

57CR 2014/17, p. 36, para. 82 (Obradović). - 26 -

58 59
protected witnesses P-001, P-013 and P-056 , as well as ten affidavits annexed to the Rejoinder .

The Applicant has taken issue with the reliability of the account given by Mirko Mrkobrad, since

60
the number of the persons dead and wounded to which he refers was his “wild guess” , as the

witness himself put it. Serbia adduced the testimony of Mrkobrad for the purpose of establishing

the fact of the attacks on the columns, of which he was an eyewitness. Mrkobrad’s testimony was

submitted to prove the fact of the attack itself, which is undeniable, rather than the exact number of

victims of the attack, of which the witness does not have a clear recollection. The statement

confirms that the refugee column was attacked by the Croatian Army and that Serbs were killed. It

is corroborated by many other statements that have not been denied by the Applicant. It is also

confirmed by the United Nations Humanitarian Crisis Cell Sitrep (A Compilation of Human Rights

Reporting) at the entries for 7 and 8 August 61, as well as by the Croatian Helsinki Committee

62 63 64
(CHC) Report , Veritas and the Human Rights Watch report .

51. Providing an avenue of retreat to the fleeing Serbs, as agreed upon at Brioni, was not

intended for the purpose of guaranteeing the protection of the retreating columns of Serbs. On the

contrary, as the events that took place during Operation Storm suggest, the refugee colum ns were

deliberately ambushed, shelled and executed by the Croatian soldiers on the way. The contentions

of the Applicant both in its Additional Pleading and in its oral submission that the columns of

civilians were inadvertently caught in the crossfire are untenable. The shelling of the refugee

columns was neither an incidental nor an unauthorized attitude on the part of the Croatian army.

52. This conclusion also stems from the conduct of the Croatian military during previous

offensives, such as Operat ion Flash. The way Operation Flash had been executed reveals that the

shelling of columns of fleeing civilians was a deliberate military tactic on the part of the Croatian

army. Thus, Operation Flash provides solid proof of the fact that the shelling of fleeing Serb

58CR 2014/17, p. 36, para. 83 (Obradović). See also RS, Ann. 51.

59RS, Anns. 53, 54, 55, 56, 58, 59, 60, 61, 65 and 66.

60CR 2014/19, p. 32, para. 32 (Singh).
61
Counter-Memorial of Serbia (CMS), Ann. 55.
62CR 2014/17, p. 35, paras. 75 and 76 (Obradović).

63CR 2014/17, p. 35, para. 77 (Obradović).

64Human Rights Watch’ Report, Impunity for abuses committed during Operation Storm, and the de nial of the
right of refugees to return to the Krajina , August 1996, Vol. 8, No. 13 (D), pp. 11-12; available on
www.hrw.org/legacy/reports/1996/Croatia.htm. - 27 -

civilians by the Croatian army was a pattern of conduct rather than an isolated event. Eyewitness

testimonies reveal that during Operation Flash columns of fleeing Serbs were constantly and

incessantly targeted all the way until they reached the Sava river.

53. In a similar fashion, the events of Operation Storm reveal that instead of being provided

a safe way out of the battlefield, the refugee columns in the routes left open by the Croatian army

found themselves entrapped and subjected to deliberate and systematic shelling aimed at their

physical destruction. Eyewitness testimony records the fate of a refugee column in the area of

Glina. It was allowed to get into Glina but when it was in the centre of the town, it was surrounded

from all sides by the Croatian army and shelled 65. Witness Mrkobrad describes a convoy that

consisted of “some 600 refugees, women and children, mainly civilians and a very small number of

uniformed people”, when “[a]ll of a sudden, a small-arms fire was opened at them . . . [and p]eople

66
[started] falling down like flies” .

Killing of those who stayed behind

54. Mr. President, Members of the Court, not very many Serbs stayed behind as the Croatian

forces imposed their control over the Krajina. Most of those that did were killed. Not only do

these killings provide evidence of the perpetration of punishable acts governed by Article 2 of the

Genocide Convention, they also provide further confirmation of the intent of the Croatian leaders

to destroy physically the Serb population of the Krajina, in whole or in part. These killings are well

documented by the witness statements of Božo Šuša, Ilija Babić, Jela Ugarković and Mile Sovilj,

67 68
submitted by Serbia, as well as the ICTY witness statements of Milan Ilić , Dragutin Junjga ,

Mile Djurić 69, Peter Marti 70 and E. J. Flynn . The Applicant has not denied the report of the

United Nations Special Rapporteur Elisabeth Rehn. She recorded that “more than 120 bodies [had]

65
RS, para. 757, District Court in Požarevac, Serbia, Minutes of witness hear ing of Mirko Mrkobra d, dated
13 March 1997 (Ann. 52).
6Ibid.

6CR 2014/17, p. 41, para. 95 (Obradović).

6Ibid., p. 39, para. 88 (Obradović).
69
RS, Ann. 48.
7CR 2014/17, p. 46, para. 111 (Obradović).

7Judges’ folders of 12 and 13 March 2014, Item No. 18. - 28 -

been discovered by the United Nations . . . [A] common m urder method was shots in the back of

72
the head” . Nor has Croatia contested the United Nations report of February 1996 in which

911 victims killed in Operation Storm were admitted 73.

55. The Applicant’s observation that the Respondent filed new witness st atements in
74
August 2013 “expressly for this case” is not clear enough. For the explanation of that procedural

right of a party, the Applicant can consult Article 57 of the Rules of Court and the Agreement on

the method of examining witnesses and expert witnesses drafted by its own counsel.

56. In addition to the witness statements submitted by the Respondent, the killing of the Serb

civilians who remained in Krajina during and after Operation Storm was confirmed by two

non-governmental organizations, the Croatian Helsinki Committee and Veritas, one from Croatia,

another from Serbia. These organizations disagree on many things. Yet despite their rivalry and

animosity to one another, they each confirm that mass killing was committed by the Croatian

armed forces during and after Operation Storm.

57. Mr. President, Members of the Court, Croatia is quite wrong to claim that the number of

75
persons killed during Operation Storm is “grossly exaggerated” . The evidence reveals that during

Operation Storm and it s immediate aftermath Croatian soldiers killed everyone whom they were

able to track down. If they had the opportunity, they killed. On the basis of the evidence adduced

by the Respondent, it becomes evident that it was only because they managed to hide that there

were survivors of Operation Storm at all. For instance, witness Ilija Babić observed that “[t]he

survived residents mostly hid in their homes and in the woods, as I did, and I think that this is why

they were not killed”.

58. With respect to t he allegations that the number of civilians killed in Croatian military

operations is not evidence of genocidal intent 76, notwithstanding the actual number of civilian

deaths, all of the Serbs who were found in the cities and villages in August 1995 were ki lled by the

Croatian army. The Croatian soldiers killed as many civilians as they were able to find or to lure

72
CR 2014/17, p. 47, para. 115 (Obradović); emphasis added.
73
Ibid., p. 47, para. 116 (Obradović).
74CR 2014/19, p. 37, para. 47 (Singh).
75
Ibid., p. 34, para. 39 (Singh).
76
RC, para. 12.28 et seq. - 29 -

out of hiding. Consequently, just as the lack of enough ammunition prevented the Croatian army

from causing complete destruction of the cities by way of shelling during Operation Storm, the

massacre of the Serb population that had remained did not reach the intended magnitude due to the

77
specific topographic terrain of Krajina , as well as due to the fact that at the time of the attacks

most of the civilians had wisely fled the region, if they could. This was not destruction “in whole

or in part”. It was destruction “in whole”. All of them. During Operation Storm and its immediate

aftermath, all surviving Serbs in the Krajina, to the extent tha t the Croat forces could find them,

were exterminated.

Other incriminating acts

59. Mr. President, the Applicant has not commented on Serbia’s submissions concerning acts

causing serious bodily and mental harm to members of the group of Krajina Serbs 78. T he

Applicant has simply ignored that issue. Even if this is a deliberate strategy on the part of a

country charged with genocide, it is difficult for a Government seeking reconciliation that “must be

79
based on historical facts” to defend such an indifferent attitude to the suffering of the victims.

60. Nor has the Applicant commented on the statements of witnesses Hill, Dreyer and

80
Ugarković, according to which the Croatian Army killed all animals in the region of Krajina .

Can anyone who really seeks reconciliation based on historical facts claim, after examining these

statements, that Operation Storm was lawful, as counsel for the Applicant suggests?

61. Further, the Applicant has not spoken to Serbia’s statement that at the end of

September 1995, the European Community Monitoring Mission (ECMM) reported that 73 per cent

of Serb houses were burned and looted in 243 villages that were investigated 81. The Report of the

United Nations Military Observers (UNMO) from 4 November 1995 states that 17,270 houses were

77
CR 2014/17, p. 42, para. 99 (Obradović).
78Ibid., pp. 50 and 51, paras. 123-131 (Obradović).

79CR 2014/19, p. 17, para. 20 (Crnić-Grotić).
80
CR 2014/17, p. 52, paras. 133 and 134 (Obradović).
81The situation in the occupied territorieof Croatia: Report of the Secr etary-General, dated 18 Oct. 1995,
UN doc. A/50/648, para. 33. - 30 -

destroyed or damaged after the commencement of Operation Storm in United Nations Sector

82
South .

The issue of the returnees

62. Mr. President, Members of the Court, let me turn now to the issue of those who returned.

When Croatia responded to the counter -claim, it addressed the issue of the population changes

within Croatia by stating that 130,000 Serbs had returned 83. Counsel for Croatia said that the facts

spoke of the will of Croatia to ensure the return of all of its citizens who wish to return. To the

extent that Croatia is making efforts in this respect, Serbia is most appreciative. This can be an

important measure to encourage reconciliation of the two peoples. However, policies of the current

Government of Croatia do not shed much light on t he issue that concerns the Court, namely the

existence of genocidal intent in 1995. Croatia has really left unchallenged the evidence that in

1995 its rulers sought to effect a demographic transformation of the Krajina, removing the Serbs

and effectively destroying them as a community, in whole or in part, and replacing them with Croat

settlers.

63. Evidence of the profound changes in the ethnic composition of the Krajina as a result of

Operation Storm comes from many sources. United Nations sources referred to by the Gotovina

Trial Chamber indicate that about 180,000 Serbs were in the Krajina region prior to Operation

84
Storm and that about 2,000 remained in Sector South . and 5,000 remained in Krajina as a whole,

that is, in both sectors. In January 1998, the Special Rapporteur of the United Nations Commission

on Human Rights (UNCHR), Elisabeth Rehn, reported that less than 10 per cent of the Krajina

85
Serbs had returned . A comparison of the census figures for 1991 and 2001 in Croatia shows the

huge change in the number of ethnic Serbs. That map that you see on the screen is also in your

folders with one slight change: we thought it wise to put the red box there so that you can see more

clearly the Krajina region, although you will see that there are al so other regions where the

demographic transformations were very, very important. But you can see in 1991, this is the Croat

82
CMS, Ann. 58.
83CR 2014/19, p. 17, para. 21 (Crnić-Grotić).

84Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 Apr. 2011, para. 2080.
85
Report of Special Rapporteur Elisabeth Rehn, 14 Jan . 1998, para. 32. - 31 -

population  the ethnic Croat population is quite small in the Krajina region in the red box and it

is really utterly transformed a decade later. If we take the four towns, the four towns that were

subject to the shelling, the Serb population in Knin declined from 19,679 to 3,164; of Benkovac

from 16,583 to 730; of Gračac from 10,805 to 1,523 and of Obrovac from 6,981 to 435. In total,

the Serb population of the four towns declined from 54,048 to 5,852, a drop of about 89 per cent.

64. In 2011, the United Nations High Commissioner for Refugees (UNHCR) published a

86
report that indicated that only about one -third of the registered returnees actually live in Croatia .

Of the registered returnees, the study concluded that about 38 per cent were permanently residing

in Croatia, while 45 per cent lived outside the coun try and 17 per cent had passed away. The

relatively large number of deceased returnees seems to highlight the fact that a large proportion of

those who have returned are elderly. The study concluded that one -third of the returnee population

is older than 65 years of age, while persons under 19 represent only 12 per cent of the returnee

population  about half what it is in the normal population of Croatia. It is not possible to present

the detailed findings of the UNHCR report here: it runs to more than 200 pages. But it presents a

very grim picture of the biological sustainability of the Serb communities within Croatia, including

the Krajina. This is not to suggest that Croatia is today doing anything to aggravate the process. I

do not want to be mis understood on this point. But the simple recital of a number of

130,000 returnees, as provided by the Applicant in its rebuttal to the counter -claim, does not really

give the Court an accurate picture of the situation. Serbia’s Agent noted the dramatic decline in the

87
Serb population within Croatia from almost 20 per cent before the Second World War, to about

12 per cent in 1991, to a little over 4 per cent today. The UNHCR survey suggests that the age

distribution will contribute to further decline. Th e decisive blow in this process was Operation

Storm.

Evidentiary issues

65. Mr. President, Members of the Court, two reports submitted by Serbia and upon which it

relies have been unfairly attacked by the Applicant. The first is the report of the Croatian Helsinki

8UNHCR, Minority Return to Croatia  Study of an Open Process, 2011.

8CR 2014/13, p. 16, para. 17 (Obradović). - 32 -

Committee  the CHC report. Croatia has pointed to the statement by the ICTY in Gotovina that

88
it would not rely upon the report “if uncorroborated by other evidence” . Croatia concludes that

“it is unsafe to rely on this Report” 89. If all that Croatia is saying is that the report should not be

relied upon, in the absence of corroborating evidence, then its statement is consistent with what the

Trial Chamber said, and Serbia has no particular difficulty with this position. But the tone of

Croatia’s comment seems to suggest that the Court should disregard the report, we would submit

that this is going much too far. The CHC report should be treated as a useful piece of evidence,

one that contributes to an understanding of the events. Words like “uncorroborated” and “rely”

simply send a message indicating that care should be taken if it is the only element of proof

establishing a particular fact. Let us note that the CHC report was not the only piece of evidence

that the Trial Chamber declared sh ould be subject to a requirement of corroboration. It did the

same with a United Nations Military Observer Team report and reports from international NGOs

90
such as Human Rights Watch and the International Helsinki Federation for Human Rights . If it

had meant for such evidence to be disregarded altogether, I think it would have said so.

66. The CHC report provides evidence of Croatia’s responsibility for the attacks on refugee

convoys. The information contained in this report is corroborated by the following sources:

eyewitness testimony attesting to the fact that the convoys of refugees fleeing from Knin were

shelled by the Croatian army 91 and the excerpt from the 4th HV Guards Brigade Operative

92
Logbook for 7 August 1995 .

67. Applicant continues to vig orously attack the personality of Savo Š trbac and the list of

victims of Operation Storm prepared by the NGO Veritas. The Applicant discovered three new

double entries in the Veritas list of more than 6,000 Serb victims of the war in Croatia, and

93
presented it to the Court to attack the credibility of that organization . Both Parties said a lot on

88
CR 2014/19, p. 18, para. 24 (Crnić-Grotić) referring to Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement,
15 Apr. 2011, para. 50.
89CR 2014/19, p. 18, para. 24 (Crnić-Grotić).

90Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 Apr. 2011, paras. 52, 55, 57.
91
RS, paras. 733 and 759.
92
Prosecutor v. Gotovina et al. (IT-06-90-T), Reynaud Theunens, Expert report: Croatian Armed Forces and
Operation Storm, Part II, p. 189; CMS, Ann. 64.
93CR 2014/19, p. 19, para. 26 (Crnić-Grotić). - 33 -

the issue in the written pleadings. The Applicant has not advanced a new argument; it rather

repeated something that had already been set out in the written pleadings.

68. Mr. President, Members of the Court, t he three double entries are not proof of

methodological flows. These are technical errors that can emerge in any statistical report. That is

obvious: the double names of the victims are listed one after another, under entries Nos. 1731 and

1732, as you saw on the screen last week 9. No one would do this deliberately. There is no

deception or misrepresentation involved.

69. The mistake shown to the Court is not contained in the list of direct victims o f Operation

Storm. The mistakes, asserted by Croatia, are in the section on the indirect victims of the war and

post-war  an expression used by Veritas as its statistical methodology, that is explained in the

expert statement of Savo Štrbac. In order to find such a mistake, one ought to review the whole list

of more than 6,000 names of victims. That only three mistakes were found should really confirm

the validity of the Veritas work and report. The Applicant’s complaint is really quite petty.

70. Serbia does not seek to prove an exact number of the victims of Operation Storm. The

Respondent claims that the Krajina Serbs were killed on a massive scale during and after the

operation. The Veritas list is corroborated by many other documents. It would be much better if

the Applicant honestly transferred Mr. Štrbac’s statement to its own national prosecutor for war

crimes. It is well known which units of the Croatian army and police operated in the villages.

71. With respect to the testimony provided by witness General Andrew Leslie in the

Gotovina case, the Applicant contends that “the Trial Chamber ultimately rejected [witness

Leslie’s] testimony [that he had seen 30 to 60 bodies at Knin Hospital]” by noting another

statement of witness Leslie given in 2003 in a Canadian radio programme. According to that

statement, reproduced in the ICTY Trial Chamber Judgment in paragraph 1334, the deliberate

targeting of residential areas on a massive scale during Operation Storm was estimated by

Andrew Leslie to have resulted in the deaths of 10,000- 25,000 people. The Applicant further

alleges that “[a]s compared with Mr. Leslie’s excessive claim, the Trial Chamber was unable to

9Judges’ folders prepared by the Applicant, tab 17. - 34 -

identify a single victim of shelling in Knin”. And the Applicant continues, “It is easy to see why

the ICTY ignored Mr. Leslie’s testimony.”

72. Mr. President, on the contrary, the Trial Chamber Judgement in Gotovina explicitly

states that

“based on the evidence of Dawes, Al -Alfi, and Leslie, [we have added that emphasis
to the quotation] the Trial Chamber finds that there were a number of dead bodies,
some in civilian clothes, some in at least partial military uniform, immediately next to

and in an area (marked B on P984) within approximately 200 metres of the SVK
headquarters on 4 Aug ust 1995. Based on the aforementioned evidence , the Trial 95
Chamber finds that the HV fired the artillery projectiles which impacted in this area.’

Thus, firstly, the Trial Chamber did not ignore the testimony of witness Leslie, as the Applicant

suggests, and secondly, the Trial Chamber found that there were a number of dead bodies as a

result of the artillery attack. The fact that the Trial Chamber was unable to identify those victims

by gender, age or name has no bearing on the fact that the shelling caused a number of casualties,

some of whom were civilians.

Impunity and Croatian trials

73. Let me turn now to the issue of impunity and of the lack of Croatian prosecutions. The

Court was told that 2,300 people have been convicted for looting and destr oying property, in a

purportedly lawful military operation known as Operation Storm. Also, Croatia said that

33 persons have so far been prosecuted for murders committed during and after that allegedly

lawful operation 96. But we have not been informed by the Applicant how many Croatians have

been convicted by a final decision for murders in Operation Storm. If no one has been convicted,

the Respondent submits, the Court should be told why.

74. As with the issue of the obstacles to return of the population, the relevance of this issue is

its relationship to the question of genocidal intent. It is Serbia’s contention that impunity within

Croatia for killings and other atrocities provides confirmation of the intent to destroy the Serb

population within the Krajina.

75. Many of the facts are already in the record or appear in the ICTY materials. For

example, the United Nations Commission on Human Rights Special Rapporteur, Elisabeth Rehn,

9Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 Apr. 2011, para. 1375; emphasis added.

9CR 2014/19, p. 17, para. 21 (Crnić-Grotić). - 35 -

testified in Gotovina that, on 4 December 1995, she had meetings with several officials including

Tudjman, and she was given the impression that they were not interested in investigating and

prosecuting members of the Croatian military for crimes committed during Operation Storm

“beyond what was necessary to keep up appeara nces to the international community” 9. The

Minister of the Interior, Jarnjak, told Elizabeth Rehn that criminal investigations against

perpetrators of crimes such as looting and arson had been launched, but left her with the impression

that he did not want to investigate reports of mass graves 9. We know that the Croatian authorities

were concerned about property crimes because they intended to use the Serb property for new

settlers in Krajina. A report by the United Nations Secretary-General of 14 February 1996 said that

prosecutions had been pursued in “the most dramatic cases” but that “there is little evidence of
99
progress in resolving the many other reported cases of individual killings” .

Ambassador Galbraith said “[i]n connection with the atrocities that occurred after Operation Storm,

Tudjman acknowledged that there were problems, although he discounted them and would not do

anything about them” 100. The figures that the Court was given by counsel for Croatia on 18 March

seem to correspond to those th at were provided by Croatia in 1996 and that are referred to in

Gotovina. They are essentially about property crimes such as looting and arson. There are also

reports of a relatively small number of persons being brought to trial for murder, but there ar e no

reports of final convictions.

76. In his book on war crimes prosecutions and the International Criminal Court,

Professor Ivo Josipović  now the country’s president  commented on the failings of the

Croatian justice system with respect to accountabi lity for the conflict. He noted the paucity of

prosecutions concerning Operation Storm and, in particular, the fact that they were not classified as

war crimes. Speaking of a White Paper issued by the Croatian Government, Professor Josipović

said

97
Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 Apr. 2011, para. 2102.
98Ibid.

99Further Report on the Situation of Human Rights in Croatia Pursuant to Security Council Resolution 1019
(1995), UN doc. S/1996/109, 14 Feb. 1996, para. 13.
100
Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement, 15 Apr. 2011, para. 2104. - 36 -

“a serious drawback is the fact that the data on the most serious crimes and their
victims do not contain the crimes that the public believes had been committed against

the Serbian population. In addition, the victims and the suffering ‘of the opposite
side’ (although this is a question of Croatian citizens!) are not included in the data on
101
the hardships during the war.”

Conclusions

77. Mr. President, Members of the Court, I have reached the conclusion. Neither in its

written nor in its oral submissions hasthe Applicant denied the following:

(i) statements of Croatian public persons in which the Croatian Serbs were treated as a group

102
of less human values ;

(ii) the recorded statement of the Croatian Minister of Defence from 1991 that no one from

Krajina would survive 103;

(iii) statements concerning the general situation in Croatia before Operation Storm, from

104
Professor Puhovski and in Krajina after the operation, from United Nations

General Forand 105 and United States Ambassador Galbraith 106;

(iv) statements from the Brioni meeting that the Geneva negotiations would be only a mask for

the attack on Krajina 107;

(v) statements of the Croatian officers and soldiers during the operation that they would kill

108 109
all Serbs and that all Serbs are terrorists ;

(vi) statements of the Croatian President at the time Tudjman and the Minister for Foreign

Affairs that the Serbs were a cancer in the stomach of Croatia 110;

10Ivo Josipovi ć, The Hague Implementing Criminal Law, The Comparative and Croatian Implementing

Legislation and the Constitutional Act on the Cooperation of the Republic of Croatia with the International Criminal
Tribunal, Zagreb: Informator Hrvatski Pravni Centar, 2000, p. 253.
10CR 2014/17, p. 17, para. 20 (Obradović).

10CR 2014/18, p. 38, para. 158 (Jordash).

10CR 2014/17, p. 16, para. 17 (Obradović) according to Gotovina et al, Transcripts, 13 Feb. 2009, p. 15901.
105
CR 2014/17, pp. 52-53, para. 135 (Obradović); judges’ folders, item No. 19.
106
Ibid., p. 57, para. 150 (Obradović).
107
Ibid., p. 25, para. 48 (Obradović).
10Ibid., pp. 53-54, paras. 137-141 (Obradović).

10CR 2014/16, p. 47, para. 16 (Jordash).
110
CR 2014/17, p. 54, para. 142, and p. 55. para. 144 (Obradović). - 37 -

111
(vii) statements containing Tudjman’s ideological attitudes concerning Serbs and concerning
112
genocide as a tool for ethnic homogenization .

Croatia has simply ignored this evidence. The Applicant has not addressed any of these issues,

either in its written or oral submissions.

78. Let me return briefly to the other half of these proceedings, to C roatia’s Application. It

contains evidence of many violations of international humanitarian law and international human

rights law. Serbia does not contest much of this evidence. Indeed, it has regularly expressed its

sincere regrets and, to the extent that it bears a share of the responsibility, its contrition and

remorse. This process of acknowledgment can only contribute to reconciliation within the region.

Where Serbia takes issue with Croatia in this respect is on the attempt to qualify the events that

took place in 1991 as genocide. Besides discussing the application of the law on genocide to the

relevant events, Serbia has also indicated that no genocide prosecutions have ever been undertaken

before the ICTY about the subject -matter of the Croatian claim. Nor has the Tribunal in its many

judgements respecting Croatia ever suggested that the Prosecutor had miscast the charges. The

legal status of these events became even clearer following this Court’s Judgment in the Bosnia

case. And Croatia has not made a serious effort in the present proceedings to demonstrate how its

case differs in any significant way from that presented by Bosnia and Herzegovina with respect to

the violations that took place in the municipalities. Nor has it attempted to c laim that the violations

that took place in Croatia bear any meaningful relationship to the Srebrenica massacre, which this

Court has qualified as genocide.

79. Well, Mr. President, Honourable Judges, the obvious question that arises in the context

of the counter-claim is that if Croatia’s Application is not well founded, as Serbia asserts, and for

the reasons that it has advanced, does this not also fatally undermine the counter-claim. In its reply

to the counter-claim, counsel for the Applicant seemed t o attempt to get at this point, suggesting

that Serbia’s arguments on the counter-claim were in fact helpful to Croatia. These proceedings are

far too solemn to be reduced to sophomoric debating points. The observations of the Court will

undoubtedly impact upon the understanding of the conflicts of the 1990s within the region, and

11Ibid., p. 57, para. 150 (Obradović).

11Ibid., p. 23 para. 40 (Obradović). - 38 -

beyond. They may well contribute to the historical narrative of the armed conflicts associated with

the break-up of the former Yugoslavia.

80. In his concluding submissions on the counter-claim, Serbia’s Agent clarified the position.

The Respondent’s Agent noted that Serbia had not sought to settle these disputes before the

International Court of Justice. Nevertheless, given Croatia’s insistence upon proceeding, even in

light of the 2007 Judgment, Serbia felt compelled to file its own counter -claim. In addition, Serbia

submits that the counter -claim serves the need to establish the truth about all the events that took

place during the period of the conflict. Serbia owes it t o all victims, in particular, to the victims of

Operation Storm.

81. Turning back to the substance of the counter-claim, the Agent for Serbia pointed out that

the counter-claim, assessed in light of the required elements of the crime of genocide, is much

stronger than the claim submitted by Croatia. He explained that the scale of the violence in

Operation Storm, the number of the victims in a short period of time and under limited

opportunities on the side of the perpetrators, as well as the consequences upon the life of the

attacked ethnic group cannot be compared when any of the massive crimes described by the

Applicant’s claim which covered the time period of five years is set side by side.

82. The position taken by Serbia with respect to the counter -claim and the position it takes

concerning the claim could appear to be inconsistent. However, this is not the case and it is not

difficult to explain. Serbia’s position is that the cautious and prudent interpretation of the crime of

genocide adopted by the Court in 2007 is correct as a matter of international law. Serbia is not

asking the Court to revise or change its legal findings in that Judgment. The interpretative

approach that the ICJ took to the crime of genocide, especially within the framework of State

responsibility, was consistent with most of the case law developed by specialized tribunals over the

previous decade. It provided clarity and legal certainty.

83. If the position adopted by this Court in 2007 is maintained, then Croatia’s claim must be

rejected. Croatia is encouraging the Court to revise its jurisprudence. Were the ICJ to do so, it

might find this hard to explain to the people of Bosnia and Herzegovina. The Respondent contends

that should the Court adjust its interpretation o f the crime of genocide in a way that favours the - 39 -

position of Croatia, there cannot be much doubt that Serbia’s counter -claim is indeed much

stronger than the Application in several important respects.

84. Mr. President, Members of the Court, I come to en d then of my presentation this

afternoon and this is the final opportunity I will have to address the Court in these proceedings. I

look forward to returning to the Court in the future, but I greatly hope that it is not in a case

concerning genocide. I hope that this is the last case that the Court ever has to hear concerning the

Convention on the Crime of Genocide.

85. It was suggested by the counsel for Croatia that the Convention risked becoming a dead

instrument, or a dead treaty, but over the past decade there have been more trials and more

prosecutions before criminal courts, both at the national level and the international level for the

crime of genocide than in the previous 50 years. There are more people serving lengthy sentences

for the crime of genocide than ever before in history. At the United Nations and in Africa there are

serious robust organizations directed to the prevention of genocide and to early warning of

genocide and, of course, there is more academic activity and research, both into the law of

genocide and the causes of genocide than ever before. It may be that no more cases will come to

this Court and that is my hope. I do not think that we should measure the effectiveness of the

Convention on Genocide by the number of cases that come before this Court, pursuant to Article 9.

Respectfully submitted.

The PRESIDENT: Thank you, Professor Schabas.

Mr. SCHABAS: Mr. President, I think that perhaps that it is time for a pause?

The PRESIDENT: Yes, the Court is now going to take a 15- minute break, and afterwards I

will give the floor to Mr. Jordash. The hearing is suspended for 15 minutes.

The Court adjourned from 4.20 p.m. to 4.35 p.m.

The PRESIDENT: Please be seated. The hearing is resumed. Mr. Jordash, you may

proceed.

Mr. JORDASH: - 40 -

O PERATION STORM  A GENOCIDAL CAMPAIGN IN LIGHT
OF THE A PPLICANT ’S COMPARISON

1. Mr. President, Members of the Court, I am grateful. Before leavin g the floor to

Mr. Obradović to conclude Serbia’s submissions, I would like to draw some strands together

concerning Serbia’s counter-claim.

2. In order to do so and in order to address some of the unhelpful points made by the

Applicant, I will address directly the nine points of comparison that Professor Sands raised

113
concerning the differences between the Respondent’s counter-claim and the Applicant’s claim .

3. Of course, the value of such a comparison does not depend, as the Applicant appeared to

believe, on size but also on probative value, and it is to this I will direct the Court’s attention.

4. As a brief examination of the nine points addressed by Professor Sands during the second

round shows, once again, the Applicant’s claim does not rely upon anything that might constitute a

plan, and the totality of the context and patterns provides no basis upon which an inference of

genocidal intent might be inferred.

5. By contrast, the Respondent’s counter -claim, rather than a “diversionary” tactic  as

unhappily alleged by the Applicant114 when looked at in context, contains a clear plan, which in

conjunction with the patterns of crimes and avoidance, meet the required threshold for establishing

the actus reus and mens rea of genocide.

6. Before, moving to Professor Sands’s nine points, I would like to make some preliminary

remarks that go to the issue of “diversionary tactics”, raised by the Applicant. Croatia argues that

the counter-claim was filed as a diversionary tactic, whereas, in contrast, it asserts, the claim was

filed to vindicate the rights of the victims and to deter the commission of genocide in the future.

Fine sentiments, but, as we have seen throughout these proceedings, not matched by word or deed.

7. First, as the Respondent has detailed, we know one of the reasons why the Applicant filed

the claim. The Croatian Government admitted that

“While B[osnia] [and] H[erzgegovina] filed its case in 1993 . . . Croatia did not
file until 1999, and only then after being convinced by an Ame rican attorney that
accusations of S[erbia] a[nd] M[ontenegro’s] responsibility for genocide . . . on

11CR 2014/19, pp. 57-65 (Sands).

11Ibid., pp. 57-58, para. 3 (Sands). - 41 -

Croatian territory would paralyze cases against Cr115ians at the International Criminal
Tribunal for the former Yugoslavia (ICTY).”

It has been said before and I do not labour the point.

8. However, it is not just in these words that the true intent behind the filing of the claim can

be seen. It is also in the way it has been advanced. The Applicant has strained every sinew to

persuade the Court to abandon basic tenets of the law, as well as doing its best to obscure the facts.

9. Moreover, the Applicant has taken a decision, we submit, not to assist the Court with

issues that are relevant to both the claim and the Respondent’s counter -claim. Even if it was

correct, that the Respondent had filed its counter-claim as a diversionary tactic, which it is not, this

is not likely to have had an impact upon the legal and evidential assessments made by the Court. It

does not jettison the law or avoid the truth.

10. In contrast to this, we submit, the diversionary tactics deployed by the Applicant gives

rise to a real risk that the utility of the Convention is undermined, the truth is concealed and the

rights important for victims, past and future, are di minished under a barrage of eloquent but

distracting speeches.

11. Let me turn first to the Applicant’s continued attempts to change the law and the

consistent attempts to avoid providing precise information or even make reasonable concessions.

Abandoning the law

12. Of course, any progressive system of law crystallizes, develops and is refined as time

goes on. But that is not what the Applicant is requesting of the Court.

13. The Applicant is not at all happy with the law. Croatia wants to abandon or erode this

Court’s enunciation of the standard of proof, the substantiality requirement, and the law relating to

the role of “opportunity”; the principle of distinction and proportionality, the methodology for

assessing “effective control”. It also wan ts the Court to set aside regular rules on the temporal

application of treaties, on attribution and rules relating to the Court’s jurisdiction.

14. The Applicant is not asking for the law to be further constructed, refined or tweaked, but

instead seeks for key aspects of the law to be abandoned, torn up and thrown away. Did this Court

11CR 2014/14, p. 11, para.10 (Zimmerman), citing to c able No. 06ZAGREB366 of 17 Mar. 2006 from the
US Embassy in Zagr eb to the US State Department, para. 8; available at: http://wikileaks.org/cable/
2006/03/06ZAGREB366.html. - 42 -

get it so wrong only seven years ago in the Bosnia case? Is international humanitarian law so

deficient we need to cast away time-honoured basic tenets?

15. No, the Applicant simply wants to get rid of the law to encompass the facts of this case.

If this were not the case, the Applicant would have explained what should replace that which is to

be abandoned. In the main, we have heard no such reasoned elucidation.

16. Instead, the Applicant comes to the Court with an insistence that their case has merit

accompanied with such a request to jettison essential law; an illusory stand -alone test of

opportunity; a request to treat combatants in the same way as civilians; a circumvention of the

“effective control” test; and Professor Sands’s hamlet test of no utility at all.

17. Of course, these are not serious propositions. It is not that the Applicant believes that

abandoning the law on so many fronts, fortifies or prot ects the utility of the Convention or

strengthens humanitarian law’s essential protections, or, beyond this case, expands the rights of

victims. That would be a fanciful perspective.

18. Why, we might ask ourselves, has so much effort been expended tryi ng to change the

law? To ask the question is to answer it.

19. With the greatest respect, it is a form of legal vandalism that promotes the very

“protection gaps” that the Applicant claims to be seeking to avoid, designed only to force a square

pole into a round hole. Abandoning the law in the way requested risks turning the Genocide

Convention from a living instrument with the practical means of distinguishing genocidal intent

from other lesser or different intents, ensuring that those who violate the Convention can be

distinguished from those whose intent is different, into an aspirational document containing

illusory rights that fails to draw the required distinctions.

Camouflaging the facts

20. We submit the Applicant takes the same devil-may-care approach to the facts.

21. Tudjman’s political and military administration had no problem with the Serbs; they had

no army; they were not perpetrators themselves; each of the thousands of Serbs who fled the

Krajina before and after Operation Storm did so because the Serb leadership requested that they did - 43 -

so; every Serbian attack was disproportionate; every crime committed was done with genocidal

intent.

22. This opaqueness continues with regard to the number of civilians allegedly killed in the

116
Croatian conflict, with regard to the 12,500 statistic . I addressed that issue this morning and I do

not repeat it. Suffice to say, the approach taken should not be permitted to go unnoticed.

23. The Applicant takes the same approach to the unfortunate events in Vukovar. According

to the Applicant, in its Application instituting proceedings, 1,700 people were killed in Vukovar

alone, 1,100 of them were civilians 117. According to the Memorial, as “many as 2,000 other people

118
were killed after the occupation of the city” .

24. When Judge Greenwood requested clarification on these issues 11, the Applicant repeated

the aforementioned and then stated,

“To clarify the figures with respect to Vukovar. The best figures we have for

those killed in the siege are between 1,100 and 1,700 of which, before Phase 4, 70 per
cent were civilians. So far as Phase 4 is concerned, it is difficult to estimate with any
precision how many were killed during Phase 4. [And this is the point] In the

pleadin120 the assertion is made that 2,000 were killed after the occupation of the
city.”

25. Indeed, the assertion that 2,000 were killed after the occupation was made in the

Applicant’s Memorial. However, it is untroubled by any source or evidence in support. As an

examination of the Applicant’s pleadings show, all these figures are mere assertions or opinions.

Nevertheless, this does not prevent the Applicant from claiming them as fact.

26. As Professor Schabas has just outlined, the same approach exists with regard to the claim

that there were 130,000 returnees to Croatia. Mr. Obradović will address other issues in a moment.

27. The Applicant’s approach stands in stark contrast to the Respondent on these issues. The

Respondent does not seek to abandon the law, only have it applied. The Respondent has attempted

to assist the process with a reasonable approach to the facts  not least by advancing a realistic

appraisal of the Serbian and Krajina Governments of that terrible time. The Respondent has not

116
CR 2012/20, p. 34, para. 21 (Ní Ghrálaigh).
117
Application of Croatia (AC), p. 8, para. 17; no footnote for this claim.
118Memorial of Croatia (MC), para. 4.139; no footnote for this claim.
119
CR 2014/8, Judge Greenwood Question, pp. 59-60.
120
CR 2014/12, pp. 11-12 (Starmer); no footnote for this claim. - 44 -

veered from this course, even when, as has now become the norm, the Applicant has leapt on

perceived concessions with evident and unseemly pleasure.

28. As the Respondent has argued, this approach undermines their case, but it ought to not be

allowed to undermine th e counter-claim. To advance and defend a claim of genocide, without

coming to the Court with openness, or as Professor Zimmermann correctly called it  clean

hands  ought not to go unnoticed. It certainly has legal consequences, as the Respondent has

previously explained and as I will further address during the discussion of Professor Sands’ nine

points.

29. So when the Applicant alleges that the filing of the counter -claim was nothing more than

a diversionary tactic, perhaps Croatia needs to look clos er to home. It is the Applicant, not the

Respondent, who appears to be constrained, who appears to have a misguided belief in the

correctness of the conduct of every Croatian leader or combatant during this conflict.

30. Despite what we know in this Courtroom, Tudjman remains a hero, and the Serbians are

to blame for everything. With the greatest respect, a genocide finding would unfairly vindicate this

unhelpful belief. That is one of the reasons this claim was brought.

31. Having addressed this preliminary issue, let us now turn to the nine points addressed by

Professor Sands.

Temporal framework

32. The first point. The temporal framework. Last week, the Applicant tried to demonstrate

that Croatia’s claim and Serbia’s counter -claim were not part of the same “factual complex” by

arguing that there was no common temporal ground between the two proceedings as “Croatia’s

claim ends in large part before Serbia’s even begins” 12.

33. Croatia contradicts itself once more in attempting to deny the tempora l connection. In

Croatia’s Application instituting proceedings, Croatia recognized the close interrelationship

between the facts. At that time, the Applicant was prepared to acknowledge that Operation Storm

122
was an integral part of the overall military conflict that took place in Croatia from 1991 onwards .

12CR 2014/19, p. 58, para. 8 (Sands).

12AC, para. 2. - 45 -

34. Contrary to the Applicant’s latest submission, the facts have a common temporal setting,

they are also based on the same historical background, and they took place within the framework of

the same overall political process. The acts forming the background of Serbia’s counter -claim

concern exactly the same armed conflict that began in mid -1991 and culminated in Operation

Storm in August 1995.

35. Of course, this is not the only volte-face, the Respondent has observed in the Applicant’s

approach to the proceedings and the merits of the counter -claim. At the time Croatia filed their

Application instituting proceedings, on 2 July 1999, it was willing to admit that the evacuation of

the Krajina Serbs from Croatia during Operation Storm was “conduct amounting to a second round

123
of ‘ethnic cleansing’, in violation of the Genocide Convention” . True, the Applicant retreated

somewhat, but nonetheless this was said.

36. Of course, at that time Croatia advanced the claim that it was Serbia that cleansed its own

people from Croatia. Having wisely abandoned legal proceedings on that basis, the Applicant

quickly retreated from such an admission. But it should be examined.

37. Presumably, it was made in good faith. It is a statement against interest. Consistent with

the approach taken in various cases, including the Bosnia case, we invite the Court to examine it

and take it into account. Unlike in the Bosnia case, the statement under consideration is not a

political statement; it was intended to have “l egal effect”, even if the Applicant retreated from it.

It sits in complete contradiction to the submissions made by the Applicant in response to the

counter-claim 124. At the very least it illuminates somethi ng of the Applicant’s approach to the

merits of its own and Serbia’s case.

38. It certainly casts doubt on the forthrightness of the Applicant’s attempt to characterize

the Respondent’s counter -claim as a mere four -day period with a mere “sprinkling” of

125
confirmatory acts occurring afterwards . Of course, we do not need this statement against interest

to tell us that.

123
AC, para. 2. See also MC, paras. 1.03-1.06.
12Bosnia, Judgment, para. 378.
125
CR 2014/19, pp. 57-58, paras. 6 and 7 (Sands). - 46 -

39. As the Respondent explained during its first round, Phase III of Operation Storm was

undoubtedly the most brutal phase. As found by t he Gotovina Trial Chamber, for months

afterwards, the Croatian military forces and Special Police continued to target the Krajina Serb

civilian population.

40. Whereas the Applicant refers to these events as a “sprinkling of confirmatory acts”, the

Trial Chamber called them: “a large number of murders, inhumane acts, cruel treatment, and acts

of destruction and plunder against Krajina Serb civilians throughout August and September

126
1995” . The Applicant has provided no reason in its lengthy commentary on the Gotovina

judgements why this aspect of the Trial Chamber’s findings should be discarded and none is

reasonably apparent from the Appeals Chamber’s judgement.

41. Be that as it may, the temporal connection is clear. The Respondent submits that the

Court needs to examine the totality of the overlapping background to ascertain the Croatian

leaders’ real intent.

42. Croatia started planning Operation Storm in 1992, as admitted in its Reply 127. These

plans were in part confirmed by General Bobetko, Chief of the Croatian Main Staff at that time, in

his book All My Battles; the operations from 1994 through to Operation Storm were part of a

concerted plan that had “worked out all the assignments to the minutest detail” 128.

43. Mr. Galbraith’s testimony at the ICTY confirms this temporal overlap: the plan to attack

Krajina was adopted by President Tudjman in 1994, well before Operation Storm 129, as he

confirmed.

44. As for the final steps in the transformation of Tudjman’s genocidal theory into practice,

the Croatian leadership’s escalating criminal intent is most clearly visible through an examination

of the operations that preceded Operation Storm, as far back as 1992, but in particular, the

Maslenica attack in January 1993; the Medak Pocket operation in Se ptember 1993 and Operation

Flash in May 1995.

126
Gotovina et al., Trial Chamber Judgement, para. 2307.
12RC, para. 11.56.

12CMS, p. 371, fn. 1040.
129
RS, p. 295, para. 680; citing to Prosecutor v. Gotovina, Transcripts, 23 Jun2008, witness Galbraith,
pp. 4921-4922. - 47 -

45. The claim and the counter-claim represent various phases of the same conflict involving

the same armed groups taking place on the same territory of the same State. The Applicant’s latest

submissions on this issue have no merit.

Geographic scope

46. The second point raised by the Applicant concerns the alleged differences in the

geographic scope of the claims.

130
47. According to the Applicant, the claim concerns “over one third of its entire territory”

whereas Serbia’s claim only concerns, “a fraction of the area covered by Croatia’s claim, and no

doubt that is the reason why Serbia has had to change position again and conceded that intent can

be found even where ‘few Article II attacks occurred’” 131.

48. The Applicant proceeds as if biggest is best. However, as explained this morning, the

Applicant’s submissions do not assist its case. The Applicant’s submissions on geographic scope

suggest that Serbia had overwhelming territorial control and its opportun ities for destruction were

optimal. Yet the numbers killed in five years of conflict, whilst terrible, are proportionately small.

49. However, the Applicant’s analysis is correct inasmuch as it describes the efficiency of

the Croatian plan that scooped the hapless civilians from huge swathes of the Croatian territory and

swept them into small areas, where it could optimize destruction.

50. Operation Storm was conducted from four different directions in the same territory. The

attack from the north was aimed at Petrinja and Kostajnica. The attack from the north -west went

from Karlovci to Vojnić. The western attack, supported by the infamous Bosnian Muslim Army of

the 5th Corps, moved from Gospić to Gračac, Udbine and Plitvica lakes. Finally the south

direction started from the territory of Bosnia and Herzegovina and Dalmatia and was aimed

132
towards the city of Knin and areas of Benkovac and Obrovac .

130CR 2014/19, p. 58, para. 10 (Sands).
131
Ibid.
132See map No. 9; also, in addition, special police units under the command of Mladen Markač were given orders
to carry out an offensive operation from the area of Mount Velebit in order to seize control of the area of Mali Golić 

Sveti Rok  Gračac, to cut the Gospić– Gračac road, and to link up with the forces of the Split MD; see Gotovina et al.,
IT-060-90, Reynaud Theunens, Expert report: Croatian Armed Forces and Operation Storm , Part II, p. 265. - 48 -

51. A pincer movement that placed the civilians into a geographically limited area that left

no way out. There can be no doubt in this case that the Croatian forces planned it that way.

52. As the Veritas and CHC figures show, the result of this destructive operation was

inter alia mass killing. According to the Veritas report they were able to confirm that there were

1,719 killed or missing persons 133. According t o the Croatian Helsinki Committee for Human

Rights, “during and in the 100 days after operation Storm, 677 Serb civilians were murdered and

134
went missing” . As the Court knows, the Respondent relies upon the Gotovina finding of“a large

number of murders, inhumane acts, cruel treatment, and acts of destruction and plunder against

135
Krajina Serb civilians throughout August and September 1995” .

53. Moreover, as confirmed by the Special Rapporteur of the Commission on Human Rights

more than 120 bodies had been discovered by the United Nations with a common murder method:

136
a shot in the back of the head . Further, as evidence presented in our Counter-Memorial shows, at

least 430 Serbs who remained in the UNPA areas in Sectors South and North were murdered 13.

138 139 140 141
More specifically, places like Knin , Dvor , Donji Lapac , and Korenica were the

unfortunate focus of this killing campaign. In relation to this evidence Croatia has not commented

or been able to cast any real aspersions upon it.

54. The Applicant has studiously avoided proffering any figures on these issues that might

assist the Court and has avoided explaining how any of these killings or attacks were permitted to

occur. Nonetheless, even if the lower figures are accepted, this was a remarkably effici ent

133
The list is publicly available at: http://www.veritas.org.rs/wp-content/uploads/2014/02/Oluja-direktne-zrt…-
rev2014.pdf.
134
Counter-Memorial of Serbia (CMS) , para. 1239, citing to Croatian Helsinki Committee for Human Rights,
Military Operation Storm and it’s Aftermath ; Zagreb, 2001, p. 210; see also Humanitarian Crisis Cell Sitrep,
Compilation of Human Rights Reporting, 7 Aug.11 Sept. 1995; Ann. 55.
135
Gotovina et al., Trial Chamber Judgement, para. 2307.
136
Report on the S ituation of H uman Rights in the T erritory of the former Yugoslavia submitted by
Ms Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission
resolution 1995/89 and Economic and Social Council decision 1995/290, 7 Nov . 1995, UN d oc. S/1995/933, p. 9,
para. 24. 1196 Croatian Helsinki Committee for Human Rights, Military Op eration Storm and i ts Aftermath; Zagreb,
2001, p. 46.
137
CMS, paras. 1258-1311.
138
Ibid., paras. 1261-1283.
13Ibid., paras. 1302, 1311.

14Ibid., paras. 1286-1289.

14Ibid., paras. 1293-1296. - 49 -

operation. It seems unseemly to compare crimes, or events such as these, but taking the statistics at

their highest, in five years of war, over 6,000 Croatian civilians were killed by Serbian forces. In

three months or so of Operation Storm taking the figures at their lowest, the Croatian forces killed

over 1,000 civilians.

55. The Croatian forces designed Operation Storm to be efficient. It compensated for the

lack of control over the disputed territories. Having solved that problem by corralling the civilians

into a small geographic space, the Croatian forces optimally utilized their activity and control to

affect the genocidal plan.

Purpose of the armed campaigns

56. The Applicant claims that this is a third point of difference. The Applicant is most

certainly correct. As the ICTY has found, and as the Respondent has set out, there were many

different purposes and motives that underpinned the violence that engulfed Croatia before

Operation Storm. None of them are close to being consistent wi th genocide. There was no plan

and the context and patterns do not support the claim.

57. The Applicant insists that Operation Storm was lawful because it was for “the sole

purpose of restoring Croatia’s sovereign territory” 142. This is the continuous re frain that goes to

motive and not intent.

58. The remaining reasons proffered by the Applicant are equally irrelevant and shown to be

false. Chief amongst them is the astonishing claim that Operation Storm was a humanitarian

143
mission to save civilians in Bihać from a massacre and to avert a refugee crisis .

59. As noted by the Tudjman at Brioni, and consistently ignored by the Applicant throughout

these proceedings, “it is my opinion that our main objective can no longer be to break through to

Bihać. The breakthrough is now only a secondary concern. We would now have to find some kind

of an [sic] pretext for our actions . . .” 144

142CR 2014/19, p. 59, para. 11 (Sands).

143Reply of Croatia, para. 11.9.
144
Minutes of the M eeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
Officials, on 31 July 1995 at Brioni; Ann. 52, p. 1. - 50 -

60. Let me state the obvious. One does not avoid the risk of a refugee crisis by causing an

even bigger one.

The identity of the protagonists

61. Moving to the Applicant’s fourth point of difference: the identity of the protagonists.

From beginning to end, the Applicant clings onto the fiction that throughout 1991 until Operation

Storm there was no equality between the fi ghting forces. Professor Sands insists that “[t]his was

not, as the Respondent seeks to argue in rather distorted terms, a conventional armed conflict

145
between equally matched armies” .

62. According to the Applicant, the Court “heard the very same distor tions last week. They

146
were rejected then and they should be rejected again now.”

63. As the Respondent discussed this morning, the Applicant closes its eyes to the obvious

context and in doing so avoids the salient issues.

64. As illustrations only: during the Maslenica attack in January of 1993, 11,000 Serbs were

147
transferred, forcibly . During the attack on the Medak Pocket, 164 homes and 148 barns were

completely destroyed 14. During Operation Flash in May of 1995, a total of 12,000 Serbs were

149
displaced .

65. Even suspending disbelief for a moment, and assuming the crimes were somehow

accidental, the Applicant’s case fails to explain who overran the RSK’s army and who was

responsible for the destruction?

14CR 2014/19, p. 60, para. 13 (Sands).
146
Ibid.
14CMS, p. 356, para. 1125, citing to Fifth periodic report on the situation of human rights in the territory of the

former Yugoslavia submitted by Mr . Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights,
pursuant to paragraph 32 of Commission resolution 1993/7 of 23 Feb. 1993, 17 Nov . 1993, UN d oc. E/CN.4/1994/47
(1993), para. 149.
14CMS, p. 360, para. 1133, citing to ICTY, Ademi and Norac, IT-01-46 & IT-04-76, Consolidated Indictment.

14Drafted pursuant to paragraph 42 of Commission resolution 1995/89, 14 July 1995, UN d oc. A/50/287-
S/1995/575, paras. 28–29. - 51 -

66. And why was President Tudjman so confi dent at Brioni that the Croatian army could

“inflict such blows that the Serbs will to all practical purpose disappear, that is to say, the areas we

150
do not take at once must capitulate within a few days” .

67. And why was Minister Radić at Brioni so confident of success that he planned for the

adjustment in the national composition and the harmony that they fully expected would result. As

he explained:

“I conclude, therefore, that red and blue areas should promptly and, as a matter

of priority, be populated by Croats, as far as possible. These areas are marked,
including Zrinska Gora, which I skipped for the time being, and areas such as Lapac
and Knin, namely the hinterland and the Herzegovina region, which should be given
secondary priority, and this empty area in Lika as much as possible . . . ” 151

68. If the Applicant lives in the real world, then it is, indeed, a curious one.

Evidence of a systematic pattern of attack

69. Turning to the fifth point: the systematic pattern of attack. I will not reiterate the

Respondent’s submissions on the patterns that underpin the Applicant’s claim. Suffice to reiterate

that the ICTY judgements and the non- ICTY evidence do not support the claim of a pattern that

gives rise to an inference of genocide.

70. The Applicant claims that the Respondent in the first round

“characterized apparently for the first time in this case on the part of Serbia  an
alleged genocidal campaign by Croatia as a three- phase process  . . .
[yet]…singularly failed to . . . identify the existence of such a pattern by reference to
the evidence before the Court. There is no such evidence” 152.

71. However, once again Croatia closes its eyes to the obvious. Whereas their claim rests or

falls on the patterns, the Respondent’s claim is evidenced by an express plan and patterns of crimes

and concealment. As discussed this morning, a plan provides a cogent basis for demonstrating

intent and means that the Respondent may prove genocidal intent from “relatively few genocidal

acts”.

150
Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
Officials, on 31 July 1995 at Brioni; Ann. 52, p. 2.
15Minutes of the Meeting held by the President of the Republic of Croatia, Dr. Franjo Tudjman, with Military
Officials, on 23 Aug. 1995 in Zagreb, pp. 01325991, 01325993-01325997; Ann. 53, pp. 4–7.
152
CR 2014/19, p. 61, para. 16 (Sands). - 52 -

72. The plan led to the expulsion. United Nations witnesses confirmed the psychological

effect of the shelling. They confirmed it was sustained and forced them to seek protection in

153 154
United Nations bunkers . Many witnesses in the Gotovina trial confirmed the same .

73. The plan led to a pattern of mass killing and injury.

74. The plan led to a pattern of concealment that the Applicant has studiously avoided

addressing 155.

75. Although the Applicant itself admits that the terrain was sealed from view for some time

afterwards, it claims this was done because of “ongoing combat and in order to prevent any

UNCRO casualties and later for mop up operations” 156. However, we have heard nothing about

these operations  nothing to explain who was being mopped up and why . The United Nations

witnesses on the ground agreed to take responsibility for their own safety. They did not believe the

concealment was legitimate and, absent further explanation from the Applicant, neither should this

Court. It is a pattern of concea lment from which appropriate inferences may be drawn. I will

return to this in a moment.

76. The plan led to a pattern of deliberate destruction in the ensuing months.

Professor Schabas has just dealt with some of that destruction from the ECMM report: 73 per cent

157
of Serb houses were burned and looted in the 243 villages investigated . It is the same ECMM

that the Applicant places so much weight on for its finding in Mrkšić. In Sector South alone,

158
17,270 houses were destroyed or damaged .

77. That is why, we submit, it is important to draw reasonable inferences from the pattern of

concealment. The Croatian Government could remove the bodies, but they could not hide the

153ICTY, Gotovina et al., IT-060-90, testimony of witness John Geoffrey William Hill, 27 May 2008, Transcript
pp. 3738.
154
ICTY, Gotovina et al., IT -060-90, testimony of witness Jovan Dopuđ, 8 July 2008, Transcript pp. 5981,
6000-6001.
155
ICTY, Gotovina et al., IT -060-90, testimony of witness Ton Minkuielien, 15 April 2008, Transcript p. 1501
(witness was UN military observer in Sector South).
156
RC, p. 439, para. 11.107.
157CMS, p. 423, para. 1325, citing to “ The situation in the occupied territories of Croat”: Report of the
Secretary-General, UN doc. A/50/648, 18 Oct. 1995, para. 33. See, also, RS, p. 337, para. 773.

158CMS, Ann. 58, p. 127. - 53 -

burning or hide this damage. It was the tip of a very large and sinister plan. It does not take much

to imagine the destructive fury that led to this destruction.

78. Finally, the plan led to a pattern of keeping the Krajina Serbs from returning home. As

we have seen, as confirmed by Minister Radić at Brioni, this was part of the plan. As found by the

Gotavina Trial Chamber, Tudjman tellingly confirmed to Peter Galbraith, the Krajina Serbs that

left Croatia in August 1995 would not be allowed to return 159.

79. And so, as must be apparent to all, and contrary to Professor Sands’s claim, Serbia’s case

does not rest on just “just two specific acts: deliberate indiscriminate shelling and forced

160
expulsion” . It rests on the plan and on these patterns.

Instances of ethnically motivated killing, serious violence and destruction

80. I turn to the Applicant’s sixth point: instances of ethnically motivated killing, serious

violence and destruction. The Applicant claims that there “is a world of difference between the

161
two claims as to the instances of ethnically motivated killing on which each Party relies” . The

Applicant then suggests that “Croatia’s claim focuses on a great mass of distinct and separate

instances of killings, beatings, torture and so on, designed to impose conditions of life that would

result in the destruction of the Croat ethnic group” 162.

81. Nonetheless, as if appreciating that this submission lacks merit, the Applicant falls back

on the distorted claim that “in making its counter -claim, Serbia concedes that genocide can take

place on a limited scale of facts like the one it alleges” and “Serbia now accepts that acts on the

scale of those proven by Croatia, in evidence before this Court, can amount to genocide” 163.

82. I will not reiterate the Respondent’s submissions on this issue , but Croatia once more

fails to appreciate the legal significance of the existence of a plan and its nexus and

interrelationship with the great mass of distinct and separate instances of killings, beatings, torture

and the destruction of property.

159
ICTY, Gotovina et al., Trial Chamber Judgement, paras. 1999-2000.
160
CR 2014/19, p. 61, para. 19 (Sands).
16Ibid., p. 61, para. 18 (Sands).
162
Ibid., pp. 61-62, para. 18 (Sands).
163
Ibid., p. 62, para. 18 (Sands). - 54 -

83. In contrast, in the absence of an express plan, Croatia must do more and it has failed to

do so.

Evidence and materials

84. Turning to the seventh point that the Applicant claims is a point of difference, evidence

and materials. The Applicant claims that it has produced a volume of evidence, including more

than 450 witness statements, that “provides extensive first -hand descriptions of the crimes

committed by Serb forces against the Croat population”, the reliability of which has been

confirmed by the subsequent findings of the ICTY and the six live witnesses who testified during

the first round16.

85. As the Respondent has argued, even if the Applicant’s evidence is reliable, and even if it

is confirmed by the ICTY findings, the ICTY does not support thei r case. A proper examination

and analysis of both sources undermines it.

86. As the Respondent has also pointed out, drowning the Court in a mass of crimes, as if the

volume could replace the missing context or patterns, the Applicant has failed to adhere to basic

procedural requirements.

87. As the Applicant’s explanation last week in response to Judge Greenwood’s question 

concerning whether their statements would have been admissible in the courts of Croatia 

showed 16, and Mr. Obradović confirmed yesterday, much of the evidence adduced would not be

admissible in the Croatian courts. And yet, the Applicant expects it to be admissible, and probative

of these serious claims, in this Court.

88. In contrast, the Respondent relies upon a plan and ampl e evidence that abides by basic

procedural requirements whose reliability can be tested. And the Applicant was presented with an

opportunity to test the evidence of the United Nations personnel and key witnesses who support the

Respondent’s case. Mr. President, Members of the Court, why did they avoid that confrontation?

What was it that they were shying away from?

16CR 2014/19, p. 62, para. 20 (Sands).

16CR 2014/20, p. 67 (Crnić-Grotić). - 55 -

89. Croatia must live with the combined force of the Veritas report collated by the Krajina

Serbs Centre for Collecting Documents and Inform ation and the report of the Croatian Helsinki

Committee for Human Rights (“CHC”) 16, that confirms that mass killing did occur.

90. As Professor Schabas outlined, the CHC report has not been completely discredited by

the ICTY as a reliable basis for findin g fact, nor might the Veritas report be so easily dismissed by

167
attacks on the impartiality of the Director of the organization .

91. Contrary to the approach taken by the Applicant, finding errors concerning dates of birth

168
or father’s names and the like , in the CHC report containing hundreds of points of data, is not the

same as finding “methodological flaws”. The CHC report represents a significant effort by an

independent, Croatian non-governmental organization, to record what the Government does not

want the world to see.

92. As for the Veritas report, Professor Schabas has dealt with that but a handful of factual

errors out of a total of 6,119 Serbian victims  2,372 of them civilians  does not provide the
169
basis for ignoring the report . Attackin g the author of a report for bias, without providing real

170
evidence, also fails to explain, let alone prove, any “methodological flaws .

93. The work of this significant NGO, Veritas, has been praised over the years by a number

of international actors such as the United Nations Liaison Office in Belgrade, the ICTY’s

Prosecutor’s Office, and the International Committee of the Red Cross 171. It remains deserving of

such praise.

94. Of course, the Applicant could have assisted either organization to obtain a fuller or more

accurate picture, but declined to do so. Adverse inferences surely should be drawn.

ICTY FINDINGS

95. Turning to the eighth point of alleged difference addressed by the Applicant: the

findings of the ICTY. As demonstrated over the last three weeks, the ICTY judgements do not

166
RC, para. 1.9.
167
CR 2014/19, pp. 62-63, para. 21 (Sands).
168RC, para. 2.65.

169CMS, Ann. 66, p. 16; RS, para.592; RC, para. 11.68.
170
RC, paras. 2.66-2.68.
171CMS, Ann. 63. - 56 -

support the Applicant’s case. While the Respondent must live with the controversy of the Gotovina

judgement, the Applicant must live with fact that none of the ICTY judgements come close to

providing a platform for their theory.

96. They confirm that there was lawful combat, they confirm that there were excesses in

combat, the patterns confirmed deny the Applicant a framework for their non- ICTY evidence to

cleave. The Martić Trial Chamber asked and answered the critical gateway question that is

essential if the Applicant is to succeed. The ICTY rejected that question, answered it in the

negative, and the similarity of the Applicant’s non -ICTY evidence, if reliable, is proof they got it

right.

Intent to destroy

97. And so finally I turn to the ninth point: the intent to destroy. The Respondent has set out

its case with clarity and will not reiterate it here. It does not rely upon only one plan, but concerted

action that removed 200,000 civilians from their homes, efficiently corralled them into columns

and ensured that they were attacked. Having driven out all the able -bodied, the Croatian forces

attacked and killed the elderly and the weak. The destruction was an intended consequence of the

plan.

98. By contrast, the Applicant fails to explain how genocidal intent might be inferred from

ICTY findings that do not offer a glimmer of support and from patterns of crimes that do not

resemble the required intent.

99. As I touched upon at the commencement of this address, the Applicant then falls back on

denial and opaqueness to support its own case and undermine the counter-claim.

100. The Applicant’s opaque approach to the counter -claim should not be permitted to be

without legal consequence.

101. As we submitted previously, the Respondent accepts that in general that it must

establish that crimes that satisfy Article II of the Genocide Convention were committed with
172
intent , however, as this Court decided in the Congo case, the “determination of the burden of

17Military and Paramilitary Activities in and against Nicaragua (Nicaragv. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984 , p. 437, para. 101 - 57 -

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

Court” .173

102. As noted, the burden of proof rule should be applied “flexibly” when the opposing Party

is “in a better position to establish certain facts” 174.

103. At the very least, as the Applicant preached in its Reply, but, unfortunately, did not turn

into practice:

“Whilst the party asserting a claim generally has the burden of proving it, the
other party also has obligations in relation to the evidence related to that claim. The
latter should cooperate in putting before the tribunal all relevant evidence. In this
way, both parties assist the Court in establishing the truth.” 175

104. Therefore, as I touched upon a moment ago, the Respondent relies upon an additional

pattern to prove intent: a pattern of failing to provide answers or information that would assist the

Court to understand the precise scale of the attacks upon civilians that took place during the phase

two and three of Operation Storm.

105. The Respondent submits that t he Applicant must know the precise scale of the

destruction caused by the Croatian forces and those under their direction and control. Croatia

sealed off its territory and hid it from the view of the international community for some time after

Operation Storm. Croatia must know how many bodies were found; how many civilians were

attacked and injured; the scale of burning and destruction and plunder. It has chosen not to assist.

106. We submit that i n order to safeguard the utility and legitimacy of the Convention, this

should not be without legal consequence, lest future perpetrators be encouraged to evade

responsibility by sealing off territory; lest future perpetr ators be encouraged to evade responsibility

by hiding the crime.

107. This Court should draw appropriate inferences against the Applicant. It cannot be right

that the Respondent’s claim succeeds because the Applicant was able to investigate the dead and

the injured. It cannot be right that the counter -claim is allowed to fail because only the perpetrator

has had access to the scene of the crimes. The application of the Convention and the detection of

173Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment,
I.C.J. Reports 2010 (II), p. 660, para. 54.

174Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment,
I.C.J. Reports 2012 (I), p. 332, para. 15.
175
RC, p. 40, para. 2.81. - 58 -

violations must not rest on the ingenuity of the offe nding State. To conclude, whether the

Applicant’s comparative approach has value is, of course, a matter for the Court. However, if

efficiency and calculation are indicators of a genocidal plan, then Operation Storm wins hands

down. We urge the Court to reject the proposition that the counter -claim is a diversionary tactic

and see it for what it shows: an extremely successful, ethnic cleansing campaign that had, as an

automatic consequence of its execution, destruction. As Professor Schabas’ map has sh own a

moment ago, Tudjman got the harmony in the national composition and it came at a terrible cost to

the Krajina Serbs.

108. Mr. President, Members of the Court, I am grateful for the time. With the Court’s

leave, Mr. Obradović would like to close.

The PRESIDENT: Thank you very much, Mr. Jordash. I now call on Mr. Obradović to

perform his task as Agent, to present final observations and, in particular, final submissions. You

have the floor, Sir.

Mr. OBRADOVIĆ:

C LOSING REMARKS

1. Mr. President, we are almost at the end of these long but important proceedings. As I said

in my closing remarks in the first round, it was not our choice to appear before this Court, but we

are now here, with a serious counter -claim based on well -documented atrocities of the Croatian

Government led by its President FranjoTudjman, the criminal mastermind of Operation Storm.

Distinguished Members of the Court, you have already heard a lot in these proceedings about

criminal acts and two legal claims that follow the atroci ties. If you allow me, I would avoid a

classic conclusion, but rather dedicate my closing remarks to the victims. My long work on this

case was particularly difficult because of the deep tragedy which stands beyond this legal matter.

That is the feeling shared by the members of our legal team.

2. A short interview has appeared on the website of the Serbian National TV. The name of

one of the young persons whose photo you can see now on the screen is Aleksandra Stjelja. She

is 22. When she was a three -year-old, on 7 August 1995, her father and grandfather were killed in - 59 -

the refugee convoy . She, her brother and her pregnant mother were injured in the same attack by

shrapnel. Her mother died in the same year in childbirth. Aleksandra now lives in Serbia, in the

family of her uncle. She still remembers the Croatian aircraft flying over the convoy. Before

August 2013, the Croatian legal team would probably say it was a warplane of the Bosnian Serb

Army 17. But in August last year, I produced the artic le by Mr. Mario Werhas that contained the

178
list of actions of the Croatian air forces in Operation Storm . By the letter of the Croatian Agent

sent to the Court on 10 September 2013, it is finally confirmed that the action in which

Aleksandra’s family was destroyed was conducted by the Croatian forces.

3. In 2002, Aleksandra Stjelja was involved in the process of tracing the human remains of

her father. In 2014, she and other people from refugee convoys feel disappointment: they do not

believe in justi ce and they do not expect much from the courts. They have in mind the ICTY
179
Gotovina case as the failure of international justice .

4. But this is only one of the tragic stories. I remember vividly a scene from the
180
documentary film “Storm over Krajina” in which a young woman cried on the road near a

tractor. She was asked by a journalist who was responsible for her suffering. She answered:

“Politicians. Have they ever thought that their children could be like this?”, and she pointed to her

small daughter on the tractor trailer.

5. Members of the Court, the children of the former Yugoslav politicians from the 1990s

were not among the refugees. They enjoyed the benefits that their parents provided to them

through the corruption of power. This case should be seen as a warning to all politicians and all

peoples how tragic consequences could be if they follow dictators and the ideas of extreme

nationalism. It is without saying that many Croat mothers cried, as bitter as that Serb woman.

176RS, Anns. 65 and 66; Gotovina et al., testimony of witness 56, 23 May 2008, Transcript, p. 3,546; Statement
of the expert witness Savo Štrbac (6.6.2).

177See RC, para. 11.87 and APC, para. 3.69.
178
My letter of 8 Aug. 2013, with Mr. Werhas, Operation Storm  Actions of the Croatian Air Forces , Magazine
for Military History, Zagreb, Aug. 2012.
179
See http://files.snstatic.fi/HS/2013/4/jugoslavia/en.html.
180Božidar Knežević, Storm Over Krajina, documentary; the quoted dialogue is available at:
http://www.youtube.com/watch?v=IulcmlI1DC0 . - 60 -

6. This lea ds me to the question of distinguished Judge Cançado Trindade concerning the

missing persons 181as one part of our joint tragedy. The information I presented to the Court on

182
10 March was in conformity with the updated report that I received from the Serbia n

Commission for Missing Persons in February 2014. In the meantime, the report has been translated

and submitted to your attention as item No. 2 of the judges’ folders. The Serbian list of missing

persons in the territory of Croatia that today contains 1,748 names is also submitted, in two

copies  one for the Court and one for the Applicant. We do not consider that list to be evidence

for the crime, or for the State responsibility, in that sense we refer to the Veritas list of direct

victims of Operation Storm. This list is only a contribution to the complete answer to the question

posed by Judge Cançado Trindade seeking the updated information by the Government.
183
7. As you could realize from the presentation of the Croatian Agent , tracing missing

persons is not a matter of initiatives; it is a complex and long -lasting process of co -operation

between two sides based on the 1995 Bilateral Agreement on Co -operation in Tracing Missing

Persons and the 1996 Protocol on Co- operation between two State Commissions 184. Although the

significant achievement have so far been made, it is obvious from the statement of Madam Agent,

as well as from our report that you can find in the judges’ folders now, that each side is unsatisfied

with the efforts and activities of t he other. Thus, Professor Crnić-Grotić mentioned the case of

Sotin in 2013 as the only one in which the Serbian side assisted in discovering the mass grave. But

that was done in co- operation with the Serbian Office of the Prosecutor for War Crimes which

brought the perpetrator of the crime to Croatia. After some difficulties, he finally managed to show

the place of the hidden grave, and the exhumation could commence. It is not easy to provide

regularly that the perpetrators of notorious crimes show such a level of co-operation as it was in the

case of Sotin.

8. Furthermore, the Croatian Agent stated that 394 human remains were exhumed in Serbia,

out of which “only 103” have been handed over to Croatia. I would like to inform the Court that

181
CR 2014/18, p. 69.
18CR 2014/13, p. 15, para. 16 (Obradović).

18CR 2014/21, p. 37, para. 9 (Crnić-Grotić).
184
Preliminary Objections of Serbia (POS); Ann. 53, p. 367. - 61 -

that is so because only 103 DNA profiles have matched the DNA samples of the Croatian missing

persons. Of course, all available DNA profiles have been duly delivered to the Croatian

authorities.

9. Finally, the Croatian Agent complained that the Serbian Commission for Missing Persons

seeks to act as the representative of all missing Serbs, “including those who are citizens of

185
Croatia” . Yet, that seems still necessary because the representatives of Croatia come before this

Court with an allegation of 865 Croats still missing until the beginning of these hearings 186.

However, in the Croatian list of missing persons that we received last week, the number of missing

is 1,868. Who are those others on the list? Serbs from Croatia? According to their family names,

the answer would be yes. Who represents that rest of 1,000, if the Agent of Croatia forgot to

mention their destiny before the United Nations Court? And how could we believe then in the

good intention of the Croatian Government in relation to those forgotten missing persons? Finally,

who killed them? The Croatian Government?

10. Nevertheless, allow me to assure you, Members of the Court, that the Government of

Serbia is fully aware of its task in the process of tracing missing persons regardless of their

nationality and ethnic origin. The interest of families of the missing persons is a joint interest of

Serbia and Croatia. It is also the interest of humanity as a whole, and the Republic of Serbia is

dedicated to that task.

11. This brings me to the end of our presentation and to the final defeat of the Croatian false

187
application. Would that defeat be “useful”, as the former Croatian Agent hoped in 2007? Of

course, it depends on the Court, but also on the future readers of the records of these hearings. I

hope they will be able to make a difference between the strong rhetoric and the quality of evidence

presented in the case file. But how will the future generations understand why the witnesses on

whom Serbia relied are always mentioned by their ful l names, while those referred by Croatia

remain hidden? It will be a burden left to the Court.

185
CR 2014/21, p. 37, para. 10 (Crnić-Grotić).
18CR 2014/6, p. 45, para. 13 (Špero); CR 2014/5, p. 18, para. 6 (Crnić -Grotić); CR 2014/20, p. 15, para. 10
(Sands); CR 2014/20, p. 35, para. 24 (Ní Ghrálaigh).
187
Rejoinder of Serbia (RS), para. 17. - 62 -

12. Mr. President, allow me now to read the final submissions on behalf of the Republic of

Serbia.

SUBMISSIONS

On the basis of the facts and legal arguments presented in its written and oral pleadings, the

Republic of Serbia respectfully requests the Court to adjudge and declare:

I

1. That the Court lacks jurisdiction to entertain the requests in paragraphs 2 (a), 2 (b), 2 (c), 2 (d),

2 (e), 3 (a), 3 (b), 3 (c) and 3 (d) of the Submissions of the Republic of Croatia as far as they

relate to acts and omissions, whatever their legal qualification, that took place before

27 April 1992, i.e., prior to the date when Serbia came into existence as a State and became

bound by the Convention on the Prevention and Punishment of the Crime of Genocide.

2. In the alternative, that the requests in paragraphs 2 (a), 2 (b), 2 (c), 2 (d), 2 (e), 3 (a), 3 (b), 3 (c)

and 3 (d) of the Submissions of the Republic of Croatia as far as they relate to acts and

omissions, whatever their legal qualification, that took place before 27 April 1992, i.e., prior to

the date when Serbia came into existence as a State and became bound by the Genocide

Convention, are inadmissible.

3. That the requests in paragraphs 2 (a), 2 (b), 2 (c), 2 (d), 2 (e), 3 (a), 3 (b), 3 (c) and 3 (d) of the

Submissions of the Republic of Croatia relating to the alleged violations of the obligations

under the Convention on the Prevention and Punishment of the Crime of Genocide after

27 April 1992 be rejected as lacking any basis either in law or in fact.

4. In the further alternative, that the requests in paragraphs 2 (a), 2 (b), 2 (c), 2 (d), 2 (e), 3 (a),

3 (b), 3 (c) and 3 (d) of the Submissions of the Republic of C roatia as far as they relate to acts

and omissions, whatever their legal qualification, that took place before 8 October 1991,

i.e., prior to the date when Croatia came into existence as a State and became bound by the

Genocide Convention, are inadmissible.

5. In the final alternative, should the Court find that it has jurisdiction concerning the requests

relating to acts and omissions that took place before 27 April 1992 and that they are admissible,

respectively that they are admissible in so far as they relate to acts and omissions that took - 63 -

place before 8 October 1991, that the requests in paragraphs 2 (a), 2 (b), 2 (c), 2 (d), 2 (e),

3 (a), 3 (b), 3 (c) and 3 (d) of the Submissions of the Republic of Croatia be rejected in their

entirety as lacking any basis either in law or in fact.

II

6. That the Republic of Croatia has violated its obligations under Article II of the Convention on

the Prevention and Punishment of the Crime of Genocide by committing, during and after

Operation Storm in 1995, the following acts with intent to destroy the Serb national and

ethnical group in Croatia as such, in its substantial part living in the Krajina region:

 killing members of the group;

 causing serious bodily or mental harm to members of the group; and

 deliberately inflicting on the group conditions of life calculated to bring about its physical

destruction.

7. Alternatively, that the Republic of Croatia has violated its obligations under Article III (b), (c),

(d) and (e) of the Convention on the Prevention and Punishment of the Crime of Genocide

through the acts of conspiracy, direct and public incitement and attempt to commit genocide, as

well as complicity in genocide, against the Serb national and ethnical group in Croatia as such,

in its substantial part living in the Krajina region.

8. As a subsidiary finding, that the Republic of Croatia has violated its obligations under the

Convention on the Prevention and Punishment of the Crime of Genocide by having failed and

by still failing to punish acts of genocide that have been committed against the Serb national

and ethnical group in Croatia as such, in its substantial part living in the Krajina region.

9. That the violations of international law set out in paragraphs 6, 7 and 8 of these Submissions

constitute wrongful acts attributable to the Republic of Croatia which entail its international

responsibility, and, accordingly,

(1) that the Republic of Croatia shall immediately take effective steps to ensure full

compliance with its obligation to punish acts of genoc ide as defined by Article II of the

Convention, or any other acts enumerated in Article III of the Convention committed on its

territory during and after Operation Storm; - 64 -

(2) that the Republic of Croatia shall immediately amend its Law on Public Holidays ,

Remembrance Days and Non-Working Days, by way of removing the “Day of Victory and

Homeland Gratitude” and the “Day of Croatian Defenders”, celebrated on 5 August, as a

day of victory in the genocidal Operation Storm, from its list of public holidays; and

(3) that the Republic of Croatia shall redress the consequences of its international wrongful

acts, that is, in particular:

(a) pay full compensation to the members of the Serb national and ethnical group from the

Republic of Croatia for all damages and losses caused by the acts of genocide, in a

sum and in a procedure to be determined by the Court in a subsequent phase of this

case; and

(b) establish all necessary legal conditions and secure environment for the safe and free

return of the members of the Serb national and ethnical group to their homes in the

Republic of Croatia, and to ensure conditions of their peaceful and normal life

including full respect for their national and human rights.

Mr. President, distinguished Members of the Court, I am grateful for your kind attention.

Allow me to express my sincere gratitude to the Registry for the excellent organization of these

hearings, as well as to our distinguished colleagues from the Croatian delegation.

The PRESIDENT: Thank you, Mr. Obradović. The Court takes note of the final

submissions which you have now read on behalf of Serbia on the claims of Croatia and on Serbia’s

counter-claim. The Court will meet again on Tuesday 1 April 2014, between 10.00 and 11.30 a.m.

to hear Croatia’s response to Serbia’s counter-claims. Thank you.

The Court is adjourned.

The Court rose at 5.40 p.m.

___________

Document Long Title

Public sitting held on Friday 28 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)

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