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(CROATIA v. SERBIA)
Volume I
December 2009
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
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
1. The Procedural History
“( 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
(^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.
(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
(^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.
3. Further Developments between the Parties
„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
(^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