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INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING APPLICATION OF THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(CROATIA v. SERBIA)
COUNTER-MEMORIAL
SUBMITTED BY THE REPUBLIC OF SERBIA
Volume I
December 2009
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INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING APPLICATION OF THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(CROATIA v. SERBIA)
COUNTER-MEMORIAL
SUBMITTED BY THE REPUBLIC OF SERBIA
Volume I
December 2009
CHAPTER V
THE HISTORICAL AND POLITICAL BACKGROUND
1. Introduction ............................................................................................................. 135 2. The Independent State of Croatia and the Genocide against Serbs 1941-1945 ..... 136 3. The Rise of Nationalism in the SFRY ................................................................... 145 4. The Organizing of Serbs in Croatia (1989-1991) ................................................. 162 5. The Armed Conflict in Croatia and Deployment of UNPROFOR .................... 170
CHAPTER VI PARTICIPANTS IN THE ARMED CONFLICT IN CROATIA 1991-
1. Introduction ............................................................................................................. 195 2. Forces of the Government of Croatia ................................................................... 196 3. The JNA ................................................................................................................... 197 4. The Armed Forces of the Serb Autonomous Regions in Croatia/RSK .............. 206 5. Volunteers and Volunteer Units ............................................................................ 215 6. Conclusion ............................................................................................................... 220
CHAPTER VII RESPONSE TO THE APPLICANT’S ALLEGATIONS CONCERNING CRIMES COMMITTED AGAINST CROATS
1. Introduction ............................................................................................................. 223 2. Response to the Applicant’s Allegations Concerning Crimes Committed in Eastern Slavonia ................................................................................................ 224 3. Response to the Applicant’s Allegations Concerning Crimes Committed in Western Slavonia ................................................................................................ 247 4. Response to the Applicant’s Allegations Concerning Crimes Committed in Banija ................................................................................................................... 256 5. Response to the Applicant’s Allegations Concerning Crimes Committed in Kordun and Lika ................................................................................................ 266 6. Response to the Applicant’s Allegations Concerning Crimes Committed in Dalmatia .............................................................................................................. 279 7. Conclusion ............................................................................................................... 292
CHAPTER VIII
THE CRIME OF GENOCIDE HAS NOT BEEN COMMITTED
AGAINST CROATS
1. The Crimes Were Not Committed with the Genocidal Intent ............................ 293 2. The Crimes of Conspiracy, Incitement, Attempt and Complicity were not Committed either ......................................................... 311
CHAPTER IX THE QUESTION OF ATTRIBUTION
1. The Applicable Law ................................................................................................ 317 2. The Principles of Attribution Applied in the Present Case ................................ 318 3. Conclusion ............................................................................................................... 329 4. The Respondent has not Violated Its Obligations to Prevent and to Punish the Crime of Genocide ................................................................... 330
CHAPTER X SUBMISSIONS MADE BY THE APPLICANT
1. Introduction ............................................................................................................. 335 2. The Applicant’s General Approach towards the Issue of Reparation ............... 336 3. Alleged Continuing Violations of the Genocide Convention ............................... 338 4. The Submission Concerning the Return of Cultural Property’ .......................... 343 5. Conclusion ................................................................................................................ 346
Part III CHAPTER XI JURISDICTION TO AND ADMISSIBILITY OF SERBIA’S COUNTER-CLAIM
1. Introduction ............................................................................................................. 349 2. Jurisdiction of the Court (Article 80, paragraph 1, of the Rules of Court) ....... 349 3. The Counter-Claim is Directly Connected with the Subject-Matter of Croatia’s Claim, Both in Law and in Fact ....................................................... 350
List of acronyms
Abbreviation Full name Comments
ABiH Army of the Republic of Bosnia and Herzegovina
Bosniak Army involved in the operation Storm in August 1995
ECMM European Community Monitoring Mission
FRY Federal Republic of Yugoslavia Name of Serbia and Montenegro between 27 April 1992 and 3 February 2003
HDZ Croatian Democratic Union (Hrvatska demokratska zajednica)
Leading political party in Croatia from 1990 to 2000
HHO Croatian Helsinki Committee for Human Rights
Non governmental organization
HRW Human Rights Watch Non governmental organization
HV Croatian Army (Hrvatska vojska) Army of the Republic of Croatia (established on 3 November 1991)
HVO Croatian Defence Council (Hrvatsko vijeće obrane)
Army of the Herzeg-Bosna (Croatian entity in Bosnia and Herzegovina) involved in the operation Storm
ICC International Criminal Court
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
ILC International Law Commission
JNA Yugoslav People’s Army Army of the SFRY (ceased to exist on 27 April 1992)
MUP Ministry of the Interior (Ministarstvo unutrašnjih poslova)
Police forces of the former Yugoslav Republics
NDH Independent State of Croatia (Nezavisna Država Hrvatska)
Nazi puppet State (existed from 1941 to 1945)
RSK Republika Srpska Krajina Serb entity in Croatia (existed from 19 December 1991 to 5 August
SAOs Serbian Autonomous Regions (Srpske Autonomne Oblasti)
The 1991 Serb entities in Croatia: SAO Krajina (changed its name into RSK on 19 December 1991); SAO Western Slavonia and SAO Slavonia, Baranja and Western Sirmium (both joined to RSK on 26 February 1992)
SDS Serbian Democratic Party (Srpska demokratska stranka)
Leading political party of the Serbs in Croatia from 1991 to 1995
SFRY Socialist Federal Republic of Yugoslavia Federal State composed of six Republics: Slovenia, Croatia, Bosnia and Herzegovina, Serbia, Montenegro and Macedonia (ceased to exist on 27 April 1992)
SVK Serbian Army of Krajina (Srpska vojska Krajine)
Army of the Republika Srpska Krajina
TO Territorial Defence (Teritorijalna odbrana) Armed forces organized on the territorial basis
UNHCR United Nations High Commissioner for Refugees
UNMO United Nations Military Observers
UNPA United Nations Protected Area Safe heaven in Croatia under the protection of UNPROFOR
UNCRO United Nations Confidence Restoration Operation
United Nations administration (replaced UNPROFOR on 31 March
UNPROFOR United Nations Protection Force Peace-keeping force in Croatia and Bosnia and Herzegovina from 1991 to 1995
VJ Yugoslav Army (Vojska Jugoslavije) Army of the Federal Republic of Yugoslavia
ZNG National Guard Corps (Zbor narodne garde) HDZ militia
CHAPTER I
INTRODUCTION
1. The Procedural History
- On 2 July 1999, the Government of the Republic of Croatia (hereinafter “the Applicant” or “Croatia”) filed an Application instituting proceedings against the Federal Republic of Yugoslavia (hereinafter “the Respondent” or “the FRY”) in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide, approved by the General Assembly of the United Nations on 9 December 1948 (hereinafter “the Genocide Convention”).
- In its Application, Croatia requested the International Court of Justice to adjudge and declare as follows:
“( a ) that the Federal Republic of Yugoslavia has breached its legal obligations toward the people and Republic of Croatia under Articles I, II( a ), II( b ), II( c ), II( d ), III( a ), III( b ), III( c ), III( d ), III( e ), IV and V of the Genocide Convention;
( b ) that the Federal Republic of Yugoslavia has an obligation to pay to the Republic of Croatia, in its own right and as parens patriae for its citizens, reparations for damages to persons and property, as well as to the Croatian economy and environment caused by the foregoing violations of international law in a sum to be determined by the Court.”^1
- By its Order dated 14 September 1999, the Court fixed 14 March 2000 as the time-limit for the filing of the Memorial of Croatia and 14 September 2000 as the time-limit for the filing of the Counter-Memorial of the FRY.
(^1) Application instituting proceedings, para. 36.
(c) in that, aware that the acts of genocide referred to in paragraph (a) were being or would be committed, it failed to take any steps to prevent those acts, contrary to Article I of the Convention;
(d) in that it has failed to bring to trial persons within its jurisdiction who are suspected on probable grounds of involvement in the acts of genocide referred to in paragraph (a), or in the other acts referred to in paragraph (b), and is thus in continuing breach of Articles I and IV of the Convention.
- That as a consequence of its responsibility for these breaches of the Convention, the Respondent, the Federal Republic of Yugoslavia, is under the following obligations:
(a) to take immediate and effective steps to submit to trial before the appropriate judicial authority, those citizens or other persons within its jurisdiction who are suspected on probable grounds of having committed acts of genocide as referred to in paragraph (1) (a) , or any of the other acts referred to in paragraph (1) (b) , in particular Slobodan Milošević, the former president of the Federal Republic of Yugoslavia, and to ensure that those persons, if convicted, are duly punished for their crimes;
(b) to provide forthwith to the Applicant all information within its possession or control as to the whereabouts of Croatian citizens who are missing as a result of the genocidal acts for which it is responsible, and generally to cooperate with the authorities of the Republic of Croatia to jointly ascertain the whereabouts of the said missing persons or their remains;
(c) forthwith to return to the Applicant any items of cultural property within its jurisdiction or control which were seized in the course of the genocidal acts for which it is responsible; and
(d) to make reparation to the Applicant, in its own right and as parens patriae for its citizens, for all damage and other loss or harm to person or property or to the economy of Croatia caused by the foregoing violations of international law, in a sum to be determined by the Court in a subsequent phase of the proceedings in this case.”^2
- On 11 September 2002, within the time-limit provided for in Article 79, paragraph 1, of the Rules of Court, as adopted on 14 April 1978, the FRY raised preliminary objections relating to the Court’s jurisdiction to entertain the case and to the admissibility of the Application. Accordingly, by an Order of 14 November 2002, the Court stated that the proceedings on the merits were suspended, and fixed a new time-limit for the presentation by Croatia of a written statement of its observations and submissions on the preliminary objections raised by the FRY. Croatia filed such a statement on 29 April 2003, in which it requested the Court to reject all preliminary objections of the FRY (with the exception of the claim concerning the submission to trial of Slobodan Milošević, former President of the FRY, who had been transferred to the International Criminal Tribunal for the former Yugoslavia by the Serbian authorities on 29 June 2001).
- In the meantime, by a letter dated 5 February 2003, the Respondent informed the Court that, following the adoption and promulgation of the Constitutional Charter of Serbia and Montenegro by the Assembly of the FRY on 4 February 2003, the name of the State had been changed from the “Federal Republic of Yugoslavia” to “Serbia and Montenegro”.
- By a letter dated 3 June 2006, the President of the Republic of Serbia Mr. Boris Tadić informed the Secretary-General of the United Nations that, following the declaration of independence adopted by the National Assembly of the Republic of Montenegro, “the membership of the state union Serbia and Montenegro in the United Nations, including all organs and organizations of the United Nations system, [would be] continued by the Republic of Serbia, on the basis of the Constitutional Charter of Serbia and Montenegro.”^3
(^2) Memorial, Submissions, pp. 413-414. (^3) ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008, General List No. 118, para. 23.
for instituting proceedings against another State that is alleged to be responsible for violations of the Genocide Convention. However, the authors of the Memorial have tried to do just that – to explain why the Croatian Government decided to file the Application and, more importantly, to justify the fact that the Application was produced so late, almost four years after the end of the conflict and the alleged perpetration of genocide.
- In its Memorial (para. 1.07), the Applicant pointed out that the reasons for the institution of the proceedings against the FRY in 1999 was due to the fact that the International Criminal Tribunal for the former Yugoslavia (hereinafter “ICTY”) failed to issue any indictment “against those persons most responsible for genocide in Croatia”. This explanation has never been accepted by the Respondent; rather, the reason why the contentious proceedings before the International Court of Justice were instituted so late by Croatia is the international position of the Respondent State at the time of the filing of the Application.
- The Croatian Application was submitted on 2 July 1999, shortly after the NATO bombing of the FRY. Having in mind the evidently rushed nature of the Applicant’s initial submission, it can easily be concluded that a decision to take legal action must have been taken during that bombing, which took place from March to June 1999. During this period President Milošević’s rule in the FRY reached its lowest point. The country was completely isolated, its economy destroyed; the number of victims of the NATO bombing increased every day, while the conflict, characterized by serious war crimes in the Serbian Province of Kosovo and Metohija, culminated. In international relations, the FRY regime was almost completely cut-off. For Croatian leaders, this was a good moment for an attempt to reach a solution on the Serbian question in Croatia: the conflict was to end in a legal victory before the principle judicial organ of the United Nations, where the Serbs and their State leadership were to be collectively “convicted” for genocide, the most serious crime in the contemporary world. National history could thus be re-written: the genocide committed in the Independent State of Croatia against the Serbs, Jews and Roma during World War II could be forgotten, or at least, could be equated to the genocide purportedly committed against Croatians. Moreover, the justified requests of the Serbs from Croatia to be allowed to return to their homes and land could be more easily dealt with by the Croatian authorities once the decision on the collective Serbian responsibility for the crime of genocide was rendered.
3. Further Developments between the Parties
- Although diplomatic relations between Croatia and Serbia were normalized in August 1996,^5 a genuine cooperation began in 2000, following the democratic changes in both States. The positive developments were registered in bilateral economic relations, in political dialogue on the highest level, and particularly in some fields of joint interest directed to the restoration of mutual confidence, such as the cooperation between the war crime prosecutors^6 , between commissions for missing persons^7 and through Joint Commission for Restitution of Cultural Heritage.^8
- During his visit of Croatia in 2007, Serbian President Boris Tadić, gave the following public statement:
„I am addressing apologies to all citizens of Croatia, and to everybody belonging to the Croatian nation on whom persons belonging to my nation inflicted misfortune...“ 9
- Nevertheles, continuing the litigation before the International Court of Justice under the provisions of the Genocide Convention, the Croatian Government has kept the biggest obstacle to further improvement of the relations with Serbia, although it is fully aware that its case is not based in law. In spite of some indications that the Croatian Government could decide to negotiate with the Serbian authorities about the withdrawal of its Application, no formal proposal has ever been made.
(^5) Agreement on Normalization of Relations, Memorial, Annexes, Vol. 4, annex 12. (^6) The last Conference on the improvement of the cooperation among the war crimes prosecutors from the former Yugoslavia, supported by the ICTY, OSCE and EC, was held in Bruxelles in April 2009, http://www.sarajevo- x.com/svijet/clanak/090403113. 7 This issue was regulated between Croatia and Serbia by the 1995 Agreement on Cooperation in Tracing Missing Persons and by the 1996 Protocol on Cooperation between the Commission of the Government of the Federal Republic of Yugoslavia for Humanitarian Issues and Missing Persons and the Commission of the Government of the Republic of Croatia for Imprisoned and Missing Persons, see Annex 53 to the Preliminary Objections, p. 367. 8 The Joint Commission was established in 2003 in accordance with the Agreement on Co-operation in the Field of Culture and Education, Narodne novine, Medjunarodni ugovori [Official Gazette, International Treaties], no. 5/2002 & Sluzbeni list SRJ – Medjunarodni ugovori [Official Gazette of the FRY – International Treaties], no. 12/2002. 9 See B92 News, “Tadić appologies to Croatian citizens“, 24 June 2007, available at: http://www.b92.net/info/vesti/index.php?yyyy=2007&mm=06&dd=24&nav_id=
principal judicial organ of the United Nations will surely further improve the practice of the application of the Genocide Convention, one of the main instrument of humanitarian law in the contemporary World.
4. Summary of Issues and Structure of the Counter-Memorial
- This Counter-Memorial is divided into three parts. Part I deals with those issues which are related both to the response to the Applicant’s allegations and to the counter-claims. Accordingly, Part II deals exclusively with the response to the Applicant’s factual and legal allegations, while Part III establishes factual and legal grounds for the counter- claims.
- Following this introductory Chapter, Part I continues with a review of the interpretation of the relevant provisions of the Genocide Convention, as the applicable law in this case (Chapter II). That Chapter will be based mainly on the findings of the Court in the 2007 Judgment in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , although the legal findings of the international criminal tribunals for the Former Yugoslavia and Rwanda will also be discussed, as well as other relevant documents, such as the International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind and the Elements of Crimes of the International Criminal Court.
- Chapter III will discuss the relevant questions of proof and provide the Respondent’s approach to the applicable methods of proof in the case which includes the State responsibility of exceptional gravity. In the same Chapter, the Respondent will address the Applicant’s approach to the evidence showing that documentary materials presented in support of the Memorial are either irrelevant or unreliable (for instance, 322 copies of the witness statements in Croatian were not signed by the persons who allegedly gave those statements, while many other shortcomings of the evidentiary materials are also noted). The Respondent submits that the documents presented by the Applicant are inadmissible in the case before any reasonable court, and even less in the international litigation concerning the crime of genocide.
- Part II begins with a general and preliminary question of the admissibility of the Applicant’s claims related to the events that occured before 27 April 1992 (Chapter IV). The Respondent submits that acts and omissions that took place before 27 April 1992, whatever their legal characterization, cannot entail the responsibility of Serbia, because the FRY/Serbia, only came into existence on that date. In the alternative, the Respondent submits that, in any event, acts and omissions prior to 8 October 1991 cannot be used to establish Serbia’s responsibility for breaches of the Genocide Convention, as Croatia itself only came into existence – and became bound by the Genocide Convention – on 8 October 1991.
- The analysis of the misleading and inaccurate assertions of the Memorial concerning the historical and political background is given in Chapter V. The Respondent will present historical facts which can assist the Court to fully understand political events and the origin of the 1990s’ armed conflict in Croatia. In Chapter VI, the Respondent will give an overview of all participants in the Croatian civil war and their relations with the Respondent State. It will be proved that the Yugoslav People’s Army (hereinafter “the JNA”) was not under the control of the Serbian leadership in 1990 and 1991 and that it acted as de jure organ of the SFRY and operated as such, under political direction of the SFRY Presidency. The Respondent will also show that the Applicant’s claims that the forces of the Serb autonomous regions in Croatia were “controlled” by the Federal State or by the FR Yugoslavia/Serbia are not supported by evidence.
- Chapter VII gives direct response to the Applicant’s factual allegations concerning the crimes, on the area by area basis, following the order of presentation set out by the Applicant’s Memorial. The Respondent concludes that, even if the documentary materials submitted by the Applicant are treated as relevant and reliable ( quod non ), they, firstly, do not prove that many of the crimes alleged by the Applicant have taken place and, secondly, they in any case cannot establish the existence of the legal elements of the crime of genocide. Chapter VIII comes to the same conclusion following the general overview of the events in Croatia and a careful legal analysis of the claims of the Applicant in support of the alleged existence of the genocidal intent.