Prof. Milan Blagojevic, PhD, Political Anatomy of one Judgment

Prof. Milan Blagojevic, PhD

POLITICAL ANATOMY OF ONE JUDGMENT

Republic Center for Research of War, War Crimes and Missing Persons

Banja Luka, April 2016

Prof. Milan Blagojevic, PhD

POLITICAL ANATOMY OF ONE JUDGMENT

(Mental desubstantialization of the Republic of Srpska)

Banja Luka, April 2016

Political anatomy of one judgment

(Mental desubstantialization of the Republic of Srpska) Author: Professor Milan Blagojevic, PhD Publisher: Republic Center for Research of War, War Crimes and Missing Persons For publisher: MA Milorad Kojić, director Reviewers: Academician Professor Vitomir Popovic, PhD Marko Milovic, PhD Slobodan Nagradic Zeljko Vujadinovic MA Aleksandar Vranjes Tehnical editor: Goran Zelenbaba, engineer of technology - specialist Proofreader: Professor Milorad Telebak English translation: Lidija Dangubic, Bachelor`s degree in English language and literature Print by: PI Official Gazette of the Republic of Srpska For printing: Boro Luburic, B.Sc. in Graphic Design Circulation: 300

Political anatomy of one judgment

CONTENT I. Introduction ...................................................................5 II.

Prosecution and trial for establishing the Republic of Srpska .....................................................17

III.Tragedy of the Serbs in Sarajevo ..............................57 IV.Judicial untruth about Srebrenica ............................73 V.Final word .................................................................. 123 BIBLIOGRAPHY ..........................................................133

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Political anatomy of one judgment

I. Introduction From its establishment until today, numerous local and foreign forces have been putting their efforts to achieve their final goal, the destruction of the Republic of Srpska. Leaving aside all the attempts to militarily destroy it during the civil war in Bosnia and Herzegovina, this introduction will discuss the essence of the attempts with the same goal (destruction of the Republic of Srpska) which have been performed in a nonmilitary manner from the end of that war until today. These attempts will be divided into two large groups for the purpose of the introductory part.

One of them refers to the activities of the so-called international community and the Office of the High Representative in Bosnia and Herzegovina (and numerous senior officials personally), on the basis of which the Republic of Srpska has been deprived of the parts of its territory (in Brcko and in the area of Sarajevo Dobrinja) and which represents an attempt to make the existence of the Republic of Srpska in terms of its territory (specifically 5

Prof. Milan Blagojevic, PhD the territory of Brcko) completely meaningless. Those who planned and performed these activities have counted on the psychological effects that such decisions (particularly the one related to the establishment of the Brcko District) have on the psyche of the local Serbian people who have created the Republic of Srpska. In fact, there is no doubt that such decisions in psychological sense cause not only anger and disappointment of the population of the Republic of Srpska (as an initial phase of the collective consciousness) but, as the time passes by, its resignation and the feeling of hopelessness and acceptance of the destiny which, as it has been planned, in one moment (in addition to the economic impoverishment of the population) should result in the collective consciousness that will not have a positive attitude towards its Republic any more. This, in the final stage, should produce a readiness of that collective consciousness to abolish its Republic or at least to give its content, i.e. not to fight against the activities that would be undertaken for the same purpose by the socalled international community which actually consists of the United States, Great Britain and the European Union.

The same group includes the activities of the High Representative in Bosnia and Herzegovina on the basis of which the Republic of Srpska has been unconstitutionally deprived of its numerous constitutional competencies. These activities, beside their (un)constitutional desubstantialization of the Republic of Srpska, have also had some consequences, regardless of whether we want to admit it or not, on the 6

Political anatomy of one judgment psychological side, since they created not only a specific pattern for social and political (lack of) culture, but they had substantially produced resigned collective consciousness that will accept everything imposed by the High Representative, believing that nothing can be done against it. To put it simply, a fatalistic collective consciousness which sees that as its destiny and accepts it as such has been produced.

The second group of activities is composed of the judgments rendered by the Hague Tribunal, including the recent judgment of the Trial Chamber in the case against Dr Radovan Karadzic representing a sort of a crown to this group. This judgment was rendered on 24th March 2016 and it is the subject of this paper. It is of importance for two reasons, for being a judgment rendered in the proceeding undertaken against the man who was the first President of the Republic of Srpska and for representing a kind of sublimation of illegal and immoral perceptions of the ICTY (the Prosecutor’s Office and the Chambers) regarding the Republic of Srpska. The intention of such perceptions is to, among other things, produce a public awareness, especially among the Serbs, that would consider the Republic of Srpska a criminal creation and thus perform its mental desubstantialization. What is this about?

To understand the concept of mental desubstantialization, which is the essence of the above mentioned judgment, it is necessary to remind the reader of the fact that a state (including the member units of complexly established state) does not include only the territory, population and government, but 7

Prof. Milan Blagojevic, PhD also a specific state of mind of its population of which the majority accepts and desires this state as its own. This is especially a case with national states (and national politicalterritorial units within complex states) that are accepted by its population primarily for this reason, which represents a specific form of its substantial legitimacy. If there is no such state of collective awareness, then the future of that state is doomed.

To achieve such collapse, nowadays it is not desired to just military conquer the state and its population. Instead, it is sought (externally – through the mass media and the socalled civil society organizations financed by the West) to convince the people to alter their view of their own state, in a way to delegitimize it in the masses. When this is achieved, the substance of the state is being degraded where it matters the most, i.e. in the heads of its people, which represents the essence of the mental desubstantialization of a state.

This is the context in which all the judgments rendered by the Tribunal in the Hague should be observed, since they represent the efforts to judge not only individuals, but the Republic of Srpska as well. Therefore, the recent judgment in the case against Dr Radovan Karadzic is also a part of this process, except that it has a specific importance compared to all previous decisions brought by the Tribunal for it was made in the proceeding against the first President of the Republic of Srpska. Having in mind what has just been said, it is wrong to 8

Political anatomy of one judgment believe, as the public here believes, that this judgment cannot be considered the judgment against the Republic of Srpska.

In the lines following below, I shall point out to, not only the legal and moral groundlessness of the views expressed in regard to the Republic of Srpska in the judgment against Dr Radovan Karadzic and himself personally, but also to the groundlessness of the believes that this judgment is not judgment against RS. The paper is divided into four parts due to the fact that the essence of this voluminous judgment (of more than 2000 pages) against Dr Radovan Karadzic is composed of three units of importance for the case dealt with in this paper. The first one refers to the allegations of events that took place in some municipalities of the former BiH (Bijeljina, Bratunac, Brcko, Foca, Rogatica, Sokolac, Visegrad, Vlasenica, Zvornik, Banja Luka, Novi Grad – Bosanski Novi, Kljuc, Prijedor, Sanski Most, Hadzici, Ilidza, Sarajevo Novi Grad, Novo Sarajevo, Pale and Vogosca). The second unit refers to, said in the terminology of the Hague Tribunal, “a campaign of sniping and shelling against the civilians in Sarajevo�, while the third unit is related to the events which happened in Srebrenica in July 1995. Therefore, the observations provided below will follow the structure of the judgment, while the final part represents the concluding remarks. Before I start with the presentation in the given order, it is necessary to make four notes.

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Prof. Milan Blagojevic, PhD First of them refers to the fact that this paper will provide the essence of the given judgment. That is why the paper will not deal with each of the aforementioned municipalities.

Instead, I will give several examples, for they are the form in accordance with which the Trial Chamber, in essence, acts in case of other municipalities as well.

Second note refers to the manner (formulation) of accusing and “reasoning” in the given judgment. Regarding this it is necessary to say that both, the indictment and the judgment, represent a kind of Kafkaesque proceeding conducted against Dr Karadzic. When I say this I have in mind the fact that in the indictment first, and consequently in the judgment too, such formulations were used that a man faced with such an indictment is simply not sure what he is defending himself from. I will provide one of many such examples. Thus, Paragraphs 11 and 12 of the Third Amended Indictment against Dr Karadzic charged him with the following (my italics): “11. Radovan KARADZIC acted in concert with other members of this criminal enterprise, including: Momcilo KRAJISNIK, Ratko MLADIC, Slobodan MILOSEVIC, Biljana PLAVSIC, Nikola KOLJEVIC, Mico STANISIC, Momcilo MANDIC, Jovica STANISIC, Franko SIMATOVIC, Zeljko RAZNATOVIC (aka “Arkan”) and Vojislav SESELJ. Each of these individuals, by his or her 10

Political anatomy of one judgment acts or omissions, contributed to achieving their shared objective.

12. Other members of this joint criminal enterprise included: members of the Bosnian Serb leadership, members of SDS and Bosnian Serb government bodies at the republic, regional, municipal and local levels, including Crisis Staffs, War Presidencies and War Commissions (hereinafter: Bosnian Serb political and governmental organs), commanders, assistant commanders, senior officers and chiefs of units of the Serbian Ministry of Internal Affairs (hereinafter: “Serbian MUP”), the Yugoslav Peoples’ Army (hereinafter: “JNA”), the Yugoslav Army (hereinafter: “VJ”), the Army of the Serbian Republic of BiH, later the Army of the RS (hereinafter: “VRS”), the Bosnian Serb Ministry of Internal Affairs (hereinafter: “MUP”) and the Bosnian Serb Territorial Defence (“TO”) at the republic, regional, municipal and local level; and leaders of Serbian and Bosnian Serb paramilitary forces and volunteer units. Alternatively, some or all of these individuals were not members of the joint criminal enterprise, but were used by members of the joint criminal enterprise to carry out crimes committed in furtherance of its objective as described below.”

Every objective man must be shocked when faced with such allegations. The previous quotation indicates that Dr Karadzic acted in concert with other members of this criminal 11

Prof. Milan Blagojevic, PhD enterprise and that each of these individually listed persons by his or her acts or omissions, contributed to achieving their shared objective. However, the indictment does not offer (although it should) an explanation of the manner in which Dr Karadzic acted in concert with other mentioned individuals, when, in what way and where they agreed to the alleged concert and what exactly they agreed upon, as well as the proofs for that, or the factual representation of the acts and omissions of each of these individuals. Or, the indictment says that members of SDS and Bosnian Serb government bodies were members of this joint criminal enterprise, but it does not explain the way in which they acted as members of the alleged enterprise, or how Dr Karadzic use them to allegedly carry out crimes (which ones) in order to implement the criminal enterprise. To put it in simple words, every man who would be faced with such allegations, would not objectively know what he is to defend himself from, and thus his defense would be doomed in advance to failure.This is where the Kafkaesque nature of the entire process is reflected in. When such allegations are accepted by the Trial Chamber (which, unfortunately, was done in case of the respective judgment on 24th March 2016) then the judgment also contains the same defects, which are impossible to fight against even in the appeal proceeding.

Directly related to the previous is the thing that happened in the case against Dr Vojislav Seselj. In fact, on 31st March 2016, seven days after the announcement of the judgment 12

Political anatomy of one judgment against Dr Radovan Karadzic, the Trial Chamber rendered the judgment in the case against Dr Seselj. That judgment is of particular importance for in terms of decisive issues it determined completely different situation than in the case against Dr Karadzic. Therefore, I shall use this paper to present the summary of the main conclusions from the judgment, given in its summary of 31st March 2016 (available on the web portal of the Hague Tribunal at the following address http:// www.icty.org/x/cases/seselj/tjug/bcs/160331_judgement_ summary.pdf). Thus, in the summary of this decision, quite contrary to the conclusions of the Trial Chamber in the case against Dr Karadzic related to the municipality of Zvornik and the broader area of Sarajevo, the following is stated (my italics in the quotation): “The Chamber, by a majority, Judge Lattanzi dissenting, found that the Prosecution failed to prove beyond all reasonable doubt that there was a widespread and systematic attack against the non-Serb civilian population in large areas …. of Bosnia and Herzegovina, notably in the municipalities of…, Zvornik, the region of Sarajevo…. . The evidence tendered and considered establishes instead that there was an armed conflict between enemy military forces with civilian elements.”

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Prof. Milan Blagojevic, PhD The next part of the decision summary may be brought into connection with the objective of the Republic of Srpska establishment. In regard to this, the view of the Trial Chamber in the case against Dr Seselj may be seen in the part of the judgment summary which refers to the allegations of the Prosecution concerning the establishment of the Greater Serbia. Regarding this the Trial Chamber states (my italics): “The majority is of the opinion that the Prosecution has given a very partial interpretation of the events it claims demonstrate the existence of a criminal plan for a Greater Serbia or for an entity known by a similar name. By depicting the establishment of Serbian autonomous regions in Croatia and BiH as actions that were part of the criminal plan for a Greater Serbia, without clarifying the broader context in which these actions were taken, namely the secession of both Croatia and BiH, the Prosecution gives an interpretation which, at best, hides the way events unfolded, and at worst distorts them in relation to the evidence presented to the Chamber, which was mainly Prosecution evidence.�

The following part is related to the illegal construction of the joint criminal enterprise that is constantly imposed upon the accused Serbs in the indictments and judgments of the Hague Tribunal. Regarding this construction in the

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Political anatomy of one judgment indictment against Dr Vojislav Seselj the Trial Chamber says the following (my italics): “The Chamber has received an abundance of evidence establishing that the local Serbs of Croatia and BiH were arming themselves. Nevertheless, evidence shows that Croat and Muslim civilians were equally arming themselves. In the view of the majority, this global picture gives credence to the reasonable possibility of a scenario in which all the warring factions were preparing themselves for the imminent hostilities in order to preserve the lands they considered as theirs, rather than a singular and unilateral step of the Serbian occupiers driven solely by the criminal purpose of expelling the civilians of other ethnic groups. The lack of evidence of a criminal purpose is in itself also sufficient to reject the allegation of a criminal enterprise.�

Since the judgment against Dr Karadzic stated that he was a member of the alleged joint criminal enterprise and that Dr Seselj was the member of the same, the Trial Chamber in the case against Dr Seselj comments this in the following way (my italics): “The Prosecution focused most of its allegations on the identity of views between Vojislav Seselj and Milosevic, 15

Prof. Milan Blagojevic, PhD as representing the JNA/VJ and the Serbian MUP; between Vojislav Seselj and other members associated with the RS and the VRS;… . In the view of the majority, … a lot of the evidence shows that the collaboration was aimed at defending the Serbs and the traditional Serb territories or at preserving Yugoslavia, not at committing the alleged crimes.”

As we can see, this Trial Chamber brought completely different conclusions regarding the key issues compared to the conclusions referring to the same issues stated in the judgment against Dr Radovan Karadzic. This should be borne in mind in each of the parts that follow.

Finally, the fourth note is related to the source that was used when this monograph was being written. Namely, at the time of writing the monograph (April 2016) the given judgment of the Trial Chamber was available on the website of the ICTY in English language only. Therefore, when necessary, I will quote the relevant parts of the English version of the judgment, available on the Internet portal of the Hague Tribunal at the following address http://www.icty. org/x/cases/karadzic/tjug/en/160324_judgement.pdf.

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Political anatomy of one judgment

II. Prosecution and trial for establishing the Republic of Srpska Although dedicated to that part of the judgment referring to the events in the municipalities listed above, I chose such title for this part for certain reasons. In fact, I will show below how in regard to this the prosecution and judgments for establishing the Republic of Srpska were performed.

To understand this, it is necessary to remind the reader of the Paragraph 14 of the Third Amended Indictment of the Prosecutor’s Office in the Hague (number IT-95-5/18-PT of 27th February 2009) by which Dr Radovan Karadzic was indicted in the following way (my italics): „14. Radovan Karadzic significantly contributed to achieving the objective of the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory through the commission of crimes in one or more of the following ways: 17

Prof. Milan Blagojevic, PhD (а) formulating, promoting, participating in, and/or encouraging the development and implementation of SDS and Bosnian Serb governmental policies intended to advance the objective of the joint criminal enterprise, and/or to participate in that; (b) participating in the establishment, support and/or maintenance of Bosnian Serb Political and Governmental Organs, and of the VRS, the TO, the MUP, and Bosnian Serb paramilitary forces and volunteer units (hereinafter: Bosnian Serb Forces), through which the objective of the joint criminal enterprise was implemented…”

So, Dr Karadzic was charged with participating in the establishment and maintenance of governmental organs, i.e. the Republic of Srpska, and that he used those organs, which means the Republic of Srpska, to achieve the objective of the alleged joint criminal enterprise through them. This is, whether we admit it or not, the allegation not only against Dr Karadzic but also against the Republic of Srpska. Such allegation was accepted by the Trial Chamber in the present judgment, which is proved by here given relevant paragraphs of the judgment. So the Paragraph 3477 (p. 1311 of the judgment) states that Dr Karadzic was pivotal in formulating policies and actively promoting the creation of the parallel governmental, military, police and political structures and that, as indicated in the judgment, “these parallel structures 18

Political anatomy of one judgment were designed to support the existence of a separate Bosnian Serb state and allow for the furtherance of the objective (meaning the top, the highest – our remark) of the joint criminal enterprise .” The full English version of this part of the judgment reads (my italics in the text): “3477. The Chamber also found that the Accused was pivotal in making careful preparations to allow the Bosnian Serbs to respond to any move towards independence by BiH with the creation of its own parallel structures and take-over of power at a municipal level.

The Accused’s involvement in this regard included formulating policies and actively promoting the creation of the parallel governmental, military, police and political structures that were used to gain or retain control of Bosnian Serb claimed territory. These parallel structures were designed to support the existence of a separate Bosnian Serb state and allow for the furtherance of the objective of the Overarching JCE.’’ Then the Paragraph 3507 (p. 1323 of the judgment) states about the governmental organs in the local communities (municipalities) of the Republic of Srpska and says that their Crisis Staffs, along with the members of the Territorial Defence, the Ministry of Internal Affairs of the Republic of 19

Prof. Milan Blagojevic, PhD Srpska and the Republic of Srpska Army, committed crimes to expand the joint plan within the objective (meaning the top, the highest) joint criminal enterprise during the take-over of the government in municipalities. This part of the judgment in its full English version reads (my italics in the text): “3507. The Chamber found that the Crisis Staffs, paramilitaries, and members of the TO, MUP, and VRS carried out crimes in furtherance of the common plan of the Overarching JCE during the take-over of the Municipalities.”

In the quoted way, the Trial Chamber presented its view in the judgment, which is legally unfounded, about the state organs of the Republic of Srpska (the National Assembly, the Government, the Ministry of Internal Affairs and the Army of the Republic of Srpska) calling them criminal, considering that they were described as it follows “These parallel structures were designed to ... allow for the furtherance of the objective of the Overarching JCE “, which is then repeated for the governmental organs (Crisis Staffs) at the local level.

If you support such a view, then you are only a step from the unilateral observation and false conclusions about the events that took place in the beginning of the war in BiH in local communities listed in the judgment, which is one of the characteristics of the judgment against Dr Radovan Karadzic. Here I will provide several examples that can prove 20

Political anatomy of one judgment the aforementioned. From the east part of the Republic of Srpska I will give the example of municipalities of Zvornik and Foca, from the west part of the municipalities of Kljuc and Prijedor, and in the part referring to Sarajevo I will discuss the municipalities of Novo Sarajevo and Vogosca. At the same time each of the examples will present the criticism of the relevant judgment.

In case of the municipality of Zvornik the Trial Chamber avoids in the judgment to determine the true extent of society militarization in this area, which implies the exact determination of the arming of Serbs and Muslims at the time.

Instead, it is obvious that the Trial Chamber mainly focused its attention on the arming of Serbs, while the arming of Muslims is only occasionally mentioned. Such approach can be seen in the Paragraph 1240 (p. 503 of the judgment) in which the Chamber claims that from early 1992 both, Bosnian Serbs and Bosnian Muslims, were arming themselves. However, the Chamber says this in the same Paragraph in which it seems like the Chamber expresses its regrets in the part referring to the arming of the Muslims, for it reads: “1240. From early 1992, both Bosnian Serbs and Bosnian Muslims were arming themselves, but the Bosnian Serbs were better armed as they received support from the JNA.�

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Prof. Milan Blagojevic, PhD So, it seems like the Chamber is sorry that the Serbs were better armed than the Muslims, for the Serbs were then armed by the Yugoslav People’s Army. Still, leaving aside the regrets of the Chamber, there is another oversight of the Tribunal regarding this that is of importance. It is related to the fact, specific not only for the municipality of Zvornik but for the entire former Socialist Republic of BiH, that at the time the Muslims avoided, in all possible ways, to serve in the JNA as a legal armed force of the SFRY. This avoidance is related to the directives of their political leadership which requested such behaviour, in order to achieve BiH’s secession from the SFRY, even in the military way, which the Serbs opposed to. However, despite the efforts of the Trial Chamber not to say much about the arming of the Muslims in the municipality of Zvornik, it is evident, from other parts of the same judgment, that the arming took place to a considerable extent. This can be particularly seen in the parts of the statement of grounds dealing with the armed conflicts in which the Muslims attacked the JNA, and the armed conflict that took place at the Kula Grad. So the Paragraph 1242 (p.

504 of the judgment) indicates that the JNA column was attacked on 4th April 1992. Then, the Paragraph 1249 of the judgment shows that the armed conflict between the Serbs and the Muslims started on 8th April 1992 and that after the following 20 days almost all of the remaining territory (not all of it) of the town came under the control of the Serbs, but also that the Bosnian Muslim part of the municipality remained 22

Political anatomy of one judgment around Sapna. How powerful the armed conflicts between the Serbs and the Muslims were, confirms the fact indicated in the Paragraph 1260 of the judgment. Namely, on the basis of this part, that describes the armed conflicts at Kula Grad, it can be concluded, among other things, that the JNA had to use its tank unit to fight against the Muslims.

In the case of the municipality of Foca, the Trial Chamber in the Paragraph 848 (p. 329 of the judgment) states that in the months before the outbreak of the conflict, both Bosnian Serbs and Bosnian Muslims began to arm themselves but that Bosnian Serbs were better armed.

However, the Chamber does not explain orderly the later claim. Besides, it is in contradiction with what is stated in the footnote 2761 of the judgment, related exactly to the aforementioned claim. In fact, this footnote literally reads: “2761 The Chamber is, however, satisfied that Bosnian Muslims were also armed to some extent and that Bosnian Muslim paramilitary formations, such as the Patriotic League and Green Berets, were present in Foča before clashes broke out.”

Therefore, as it can be seen, the Trial Chamber admits that the Muslims in Foca were also armed (whereby it fails to determine and state to what extent) and that they were 23

Prof. Milan Blagojevic, PhD not meaninglessly organized, but in the form of paramilitary formations such as the Patriotic League and Green Berets.

Thus, it is quite incoherent when the Chamber in the Paragraph 848 of the judgment says: “Bosnian Serbs armed themselves surreptitiously...�, meaning that the Serbs were arming themselves secretly, surreptitiously, and that the Muslims were not doing the same. If the Muslims were not doing it in that way, how did they then have the paramilitary formations such as the Patriotic League and the Green Berets, whose existence at that time in Foca was determined by the Chamber in the above quoted footnote 2761 of the judgment. Now, quite naturally, emerges the question of what the paramilitary formations famous for their monstrousness looked for in Foca at that time? Everyone who is objective understands that the formations were brought to Foca to violently establish the Muslim government in Foca, due to which the natural right of the Serbs was to organize themselves militarily and to disable the establishment of such government in Foca. The same remarks may be applied not only to Foca case, but to all other municipalities in the former BiH, and the other municipalities listed in the present judgment. When this is taken into consideration, only that can explain what the Trial Chamber determines in the judgment (Paragraph 853) and which reads that upon the completion of legally unacceptable referendum in BiH, held in the organization of the then Muslim-Croatian coalition, the armed clashes between the Serbs and the 24

Political anatomy of one judgment Muslims began on 6th April 1992. Considering the outcome of the mentioned referendum, which was held without the participation of the Serb nation and against its will, it is clear that the mentioned paramilitary Muslim organizations tried to seize the government in Foca through the armed conflicts. These armed conflicts were not sporadic, which is indicated by the Paragraph 855 of the judgment from which it follows that there were conflict at every corner, or as it is indicated in the judgment: “...area by area, including the areas Donje Polje and Šukovac where there was resistance

by Bosnian Muslim forces”. As it can be concluded from the judgment, the conflicts lasted for six or seven days, and this information also shows the strength of the armed conflict, and the efforts of the Muslim forces to take over Foca instead of Serbs.

In the case of the municipality of Kljuc, the statement of grounds of the Trial Chamber (p. 602-640) regarding the military organization of the Muslims first in the Paragraph 1500 of the judgment states that the Bosnian Muslim settlements began to form loose defence night patrols at the entrance and exit to the villages to guard against the occurrence of violent incidents. Then, in the Paragraph 1507 it is stated that the armed operations in Kljuc began on 27th May 1992, when the Assistant Commander of the Kljuc SJB, Dusan Stojakovic, was fatally wounded around 11 a.m., during an armed clash with Bosnian Muslims, while a military and a regular policeman were also wounded during the incident. Then it is 25

Prof. Milan Blagojevic, PhD stated that the Kljuc SJB discovered that seven members of Serb Forces had been captured in Crljeni two days prior. The thing that is of importance regarding the military organization of the Muslims is contained within the Paragraph 1508 of the judgment, which I will quote here in its full English version.

So, this part of the judgment reads (my italics in the text): “1508. The Chamber received conflicting evidence regarding the establishment and level of organisation of a Bosnian Muslim TO, as well as its involvement in the events of 27 May 1992. According to a Kljuc SJB dispatch dated 25 September 1992, Bosnian Muslim forces began to obtain weapons through individual purchases in early 1992, and established a “Bosanski Ključ TO” in April 1992.

Asim Egrlić acknowledged that guards had been assigned to various Bosnian Muslim settlements located north of Ključ since early 1992, but suggested that they lacked any military organisation. Although he initially denied that a Bosnian Muslim TO existed and suggested that Bosnian Serbs considered the entire Bosnian Muslim population to be members of the TO, Egrlić later conceded (i) that after Bosnian Muslim representatives were expelled from the Ključ Municipal Assembly around 10 May, they had established an office in Pudin Han in order to communicate with the population, and 26

Political anatomy of one judgment (ii) that Omer Filipović was appointed TO Commander.”

Even when shown an SJB report from July 1992 which estimated the numerical strength of Muslim forces in Ključ at the outbreak of the conflict as being approximately 1,300 to 1,500 men, and an official note of the 2nd Krajina Corps Command’s Intelligence Department dated 11 July 1992 which described a fully-functioning staff, Egrlić maintained that the Bosnian Muslim TO staff had not had time to set up any units. However, the Chamber finds that, in light of contemporaneous documents of the Banja Luka CSB and the Ključ SJB, the events of 27 May 1992 were carried out by Bosnian Muslim forces.’’

The quoted part of the judgment contains several important facts. First, it shows that the Trial Chamber had contradictory evidence regarding the arming and military organization of the Bosnian Muslims. According to a Ključ SJB dispatch dated 25 September 1992, Bosnian Muslim forces began to obtain weapons through individual purchases in early 1992, and established a “Bosanski Ključ TO”. The witness Asim Egrlic tried to show that there was no military organization and that there was no Muslim territorial defence. However, later he admitted that the Muslims had established an office in Pudin Han after 10th May and that 27

Prof. Milan Blagojevic, PhD Omer Filipovic was appointed TO Commander. Therefore, if there was a TO Commander it is clear that had to exist the thing he commanded, and that was the territorial defence as the form of military organization. From the remaining part it can be concluded that the Kljuc SJB in its report from July 1992 estimated the numerical strenght of the Muslim forces as having 1.300 to 1.500 members and an official note of the 2nd Krajina Corps Command’s Intelligence Department dated 11th July 1992 determined that the Muslim forces owned a fully-functioning staff. Concerning this, the Chamber found that the events of 27th May 1992 (when the aforementioned Assistant Commander was killed, and two policemen wounded) represented the things carried out by the Muslim forces. Still, as it can be concluded from the previous quotation, the Trial Chamber does not want to express its view regarding the question if the Muslim forces in the municipality of Kljuc had been military organized, although the previously provided evidence indisputably confirm that it was so.

This is proved by something that, in relation to these issues, may be found in one judgment rendered by the Hague Tribunal in 2004. It is the case against Radoslav Brdjanin and the judgment of the Trial Chamber rendered on 1st September 2004. The Paragraph 108 (p. 46 of that judgment) reads as it follows (my italics):

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Political anatomy of one judgment “108. Events in the Kljuc municipality were distinguished by a more effective Bosnian Muslim resistance. When the town of Kljuc was taken over by the Bosnian Serbs, members of the Bosnian Muslim resistance retreated to the Bosnian Muslim village of Pudin Han. On 27th May 1992 the Muslim fighters attacked a Bosnian Serb military column in the area of Pudin Han. On the same day, the Assistant Commander of the Kljuc SJB, Dusan Stojakovic, was killed. The following day the Kljuc Municipality Crisis Staff issued a final ultimatum to Bosnian Muslims to surrender their weapons,… . Prior to the expiration of the ultimatum, the Bosnian Serb Army started shelling Pudin Han, followed by Velagice, Prhovo and other Bosnian Muslim villages in the Kljuc municipality. A number of inhabitants of Pudin Han and Prhovo died (it is not specified which inhabitants, i.e. it is omitted to clarify if they were the soldiers and if they were killed as participants of the armed conflict – my remark) as a consequence of this attack.

During the following days the killings continued and the major killing incidents (again the information if the killed were the soldiers and if they were killed participating in the armed conflict were intentionally omitted – my remark) occurred on the road to Peci and the Velagici school.”

Therefore, on the basis of this quotation, referring to the same region as in the case against Dr Radovan Karadzic, it is obvious that not only the Serbs were arming and military 29

Prof. Milan Blagojevic, PhD organizing themselves for the war, but the same was done by the Muslims who, as the Tribunal stated, provided effective resistance. Concerning this it must not be forgotten that the Tribunal did not want to specify in the judgment (and it should have, like every objective court in cases like these should) why those villages were shelled. The reply to this question is important because that word precisely can be used to conclude that, said in the terminology of the Hague Tribunal, there was a strong armed resistance provided by the military organized Muslim forces, that tried to military defeat the Serb forces and thus take over the government in the municipality of Kljuc.

In the case of the municipality of Prijedor it is also noticeable that the Trial Chamber mostly talked about the military organization of the Serbs in that region, avoiding to say the truth about everything that the Muslims did at the time. So, the Paragraph 1614 (p. 658 of the judgment) states that in October 1991 the President of the local board of the SDA of Kozarac mobilised around 120 men for the so-called TO in Kozarac. The same part of the judgment reads also this: “Beginning in the period before the take-over of Prijedor, members of the TO, the Green Berets, and other armed Bosnian Muslim groups were active in the Kozarac area.�

30

Political anatomy of one judgment Hereby the Trial Chamber admits that not only the socalled territorial defence in Kozarac, but also the Green Berets and other armed Muslim groups were active in the region of Kozarac. However, it is indicative that except this, the Trial Chamber does not want to say anything else regarding the number of members of the mentioned armed formations, or to discover the identities of other armed Muslim groups and the way in which they were active. This is also important for the reasons I am going to mention below. Namely, the Paragraph 1583 (p. 646 of the judgment) states that from 1991 until spring 1992 weapons were distributed from the JNA storage facilities to Prijedor TO units and local communities. However, right after that the Chamber explains that the weapons given to the Bosnian Muslims were antiquated and matched with the wrong type of ammunition, whereas the Bosnian Serbs were given more weapons which did not have these problems. This may lead an uninformed reader to the conclusion that the Muslims were cheated and that they were not military organized. This, however, is not the truth and the Trial Chamber does not want to admit it in the judgment. Thus, the Chamber remained silent about the facts that can, unfortunately, never be found out from the judgments like this, but instead from the documents such as the Prijedor Survey, that can be found among the documentation of the Center for Research of War, War Crimes and Missing Persons of the Republic of Srpska. This survey dealt with the analysis of the situation in the municipality of Prijedor in the relevant 31

Prof. Milan Blagojevic, PhD period, whose relevant parts important for this part of the paper are given below: „....on 22nd May 1992 the first armed conflicts emerged in the region of Prijedor municipality. On that day, the Muslim extremists attacked six Serb soldiers at the checkpoint near the village of Hambarine, who were patrolling, and three of whom were killed and the other three wounded; On 24th May 1992 the armed conflicts in the municipality of Prijedor were intensified by the Muslim attacks on a military column in the village of Jakupovici. Members of the VRS and the MUP of the Republic of Srpska responded to these attacks, and the conflicts expanded to the area of Kozarac, Kozarusa, Trnopolje and Kamicani, and later it was expanded to the entire region of the municipality of Prijedor; On 30th May 1992, at 4:30 h, from several directions, outside and from the center of the city, the members of the Green Berets and their accomplices carried out an organized attack on Prijedor, performing concentric and simultaneous actions from several sides. The Muslims organized and carried out the attack from several suburban areas: Tukovi, Stari Grad, Raskovac, and their armed groups entered Prijedor and came to the facilities of the Municipality organs, the CJB and the Radio Prijedor. After the fights which lasted several hours, the attack was repulsed and the forces of the attackers were smashed and partly destroyed. In the fights that took 32

Political anatomy of one judgment place in the streets of Prijedor, 17 Serb soldiers were killed, including 5 members of the police (the MUP); As a result of the armed revolt, there were “REFUGEE CAMPS IN OMARSKA AND KERATERM” opened in which the war prisoners and other individuals who prepared, helped and organized the armed revolts were sent to, and there was also the “REFUGEE CENTER IN TRNOPOLJE” opened, as the place for homeless people and persons who voluntarily left their homes… “.

(Prof. dr Dragomir Keserovic, Ranko Todic, Momcilo Tepic: Vojna situacija u Bosanskoj Krajini – 1990 – 1995 analiza situacije – opstina Prijedor, Studija Prijedor, Banja Luka, February – March 2014, p. 9 and 10. The Study has never been published and can be found in the archive of the Republic Center for Research of War, War Crimes and Missing Persons of the Republic of Srpska) When such information is read it is quite reasonable to ask how the Muslims could have attacked the Serbs in Prijedor and killed or wounded the abovementioned number of them if the Muslims were given the antiquated weapons and the wrong type of the ammunition. It is obvious that the information about the events in the municipality of Prijedor indicated in the judgment against Dr Radovan Karadzic is not true. However, on the basis of the rather timidly mentioned arming and the military organization of the Muslims in the 33

Prof. Milan Blagojevic, PhD judgment, it is perfectly clear that the Muslims were also preparing for the war, and arming themselves. Two quite logical questions emerge in regard to this: against whom the Muslims were preparing to fight and what for? It is obvious that they were preparing themselves for the war against the Serbs (which only confirms the hatred existing between those two entities). A reason for the war is the attempt of the Muslims to impose by force on Serbs the obligation of accepting BiH elected through the unconstitutional bi-national (Muslim-Croat) referendum and thus to destroy the Republic of Srpska. That attempt can be found on the Croatian side as well, since they armed themselves for the same purpose.

Such situation could not have resulted in anything else but the civil and inter-ethnic war. During that kind of war (or any other war) each of the conflicting parties involved naturally tends to defeat the enemy, because it is conditio sine qua non for its survival.

The same situation is with the other municipalities listed in the indictment, i.e. judgment, including the municipalities of Vogosca and Novo Sarajevo that I highlighted for this occasion. In the case of the municipality of Vogosca the Paragraph 2366 (p. 932 of the judgment) indicates that from 1991 to spring 1992 both Bosnian Serbs and Bosnian Muslims engaged in the process of arming and organizing themselves in Vogosca. But, just like in other cases, this is followed by stating what the Serbs were doing in this regard while avoiding to describe what the Muslims were doing (and 34

Political anatomy of one judgment they certainly were). The Chamber acted in the same way in the case of Novo Sarajevo, for the Paragraph 2257 (p. 894 of the judgment) reads as it follows: “2257. Bosnian Muslims also armed themselves and organised militarily in Novo Sarajevo. They started forming units in the first half of 1991.”

So, it is only stated that the Bosnian Muslim also armed themselves and organized militarily in Novo Sarajevo and that it started in the first half of 1991. Still, after that there is no (and there should have been) explanation on the extent to which this arming was performed, the person who devised and implemented that policy, and particularly the reasons for which it was done.

Such (lack of) treatment of the Trial Chamber is a consequence of the fact that the Hague Tribunal does not take into account, although it is aware of them, several facts of cardinal importance that refer to the constitutional and legal relations in BiH before the war started. Those facts are related to the notion of the constituent peoples in prewar BiH. The notion of the constituent peoples is said to: “…in political sense and within a particular national and legal framework imply a specific degree of autonomy from which emerges the ability of the constituent subject to self35

Prof. Milan Blagojevic, PhD determination and independent action in areas relevant from the aspect of preserving its constituent status, but also the co-decision on equal basis with other constituent subjects regarding the issues of common interest.” – (Dejan Vanjek: Predstavnici i pripadnici konstitutivnih naroda – pitanje konstitutivnosti i legitimiteta, available at http:// www.idpi.ba/konstitutivnost-legitimitet/, accessed on 14th January 2015).

This notion originates in the conclusions of the ZAVNOBIH Resolution adopted at its session held on 26th and 27th November 1943. The fifth conclusion of the Resolution indicates (my italics): „5. Today the peoples of Bosnia and Herzegovina through its unique political representative office, the State Anti-Fascist Council for the National Liberation of Bosnia and Herzegovina, want their land, which is neither Serbian nor Croatian nor Muslim – but the Serbian and Muslim and Croatian to be free and fraternized Bosnia and Herzegovina, that will provide full equality to all Serbs, Muslims and Croats.”

All the way BiH existed as part of the SFRY, BiH was determined in its constitutions in a way that, in essence, matched the thing indicated in the previous quotation. The 36

Political anatomy of one judgment basic principles (I) of the Constitution of the SR BiH from 1974 stated that the Peoples’ Republic of Bosnia and Herzegovina was established by the working class, working people and the peoples of Bosnia and Herzegovina – Serbs, Muslims and Croats and members of other nations and nationalities.

Consistent with this constitutional principle, the Article 1 of the Constitution of the SR BiH from 1974 determined BiH in the following way (my italics): „The Socialist Republic of Bosnia and Herzegovina is a socialist democratic state and socialist democratic community of the working people and citizens, peoples of Bosnia and Herzegovina – Muslims, Serbs and Croats, members of other peoples and nationalities, who live in it, based on the government and self-government of the working class and all working people and sovereignty and equality of all peoples of Bosnia and Herzegovina and members of other nations and nationalities, who live in it.”

As we can see, BiH was not only a state of the working people and citizens but also the state of each of individually mentioned peoples whose sovereignty and equality were recognized. In other words, the constituent subject of BiH was each of the individually determined peoples. Many amendments (31 of them) to the Constitution of the SR BiH were adopted in July 1991. One of them determined 37

Prof. Milan Blagojevic, PhD BiH as “democratic and sovereign state of equal citizens, peoples of Bosnia and Herzegovina – Muslims, Serbs, Croats and members of other peoples and nationalities living in it”. Therefore, it is determined again that BiH is a state of each of individually determined peoples – Muslims, Serbs and Croats, which in constitutional and legal sense resulted in not having adopted, in a constitutionally valid manner, a single decision of vital importance by only the will of citizens but also by the majority will of each of the constituent peoples. Thus, if in the decision-making process regarding the issue of vital importance the two peoples would outvote the third one it would be an unconstitutional act. Such acts are Memorandum (Letter of Intent) and Platform on the position of BiH, adopted in October 1991 by the rump Assembly of the SR BiH (only by votes of the Croatian and Muslim members) without the representatives of the Serb people. Those rump documents clearly specify that Bosnia and Herzegovina (i.e. Muslims and Croats) did not want to stay in the Yugoslav community any more (since Croatia was not part of it any more), and that it wanted to be an independent state, which was something that the Serb constituent peoples opposed to.

It is obvious that the given acts were passed on by only two peoples, without the participation of the Serb constituent people in then SR BiH, which is why those acts were passed on contra constitutionem. This (and only this) can explain why the then political representatives of the Serb people at 38

Political anatomy of one judgment the session held on 24th October 1991, brought a Decision on the Establishment of the Assembly of the Serb People in Bosnia and Herzegovina, for it became obvious that their opinions regarding the future constitutional and legal status of BiH are not respected by the representatives of the other two peoples. Soon after that the Assembly of the Serb People in BiH adopted a decision on calling a referendum (or better to say a plebiscit) which was held on 9th and 10th November 1991, in which the Serb people, as one of the constituent people, by the vast majority of about 96,4% opted for an independent state of Serbs which could be a part of Serbia and Yugoslavia.

Therefore, the legitimate will of a constituent people represents the ground for the establishment of the Republic of Srpska, and not just any strategic plan of that people’s leadership, which is the thing being, persistently and legally groundlessly, insisted on in the decisions of the Hague Tribunal (including the judgment against Dr Radovan Karadzic). That is why the Republic of Srpska was not established to realize some nationally important project nor in some unconstitutional way, for the solutions offered by the then Constitution of the SR BiH guaranteed to the Serb people a status of the constituent and statebuilding people. When a people is guaranteed such a status in a state, and when the opinions of his democratically elected and legitimate political representatives on the future constitutional status of that state are not respected by the 39

Prof. Milan Blagojevic, PhD representatives of other constituent peoples, then that people has the right to self-determination (until secession) which includes the right to freely organize in the national and political sense as well.

On the other side, the referendum (on the state and legal independence of BiH) held on 29th February and 1st March 1992 was not valid in the constitutional and legal sense, since no Serbs took participation in it, only the other two constituent peoples (Muslims and Croats). This is in a way confirmed by the data according to which 2.073.568 voters out of total 3.253.847 voted in the referendum. If we have in mind the fact that, according to the BiH census in 1991, the number of Serbs in Bosnia and Herzegovina was 1.366.104 or 31,21% it is clear that the remaining number of over one million voters which did not vote in the referendum referred to the Serb people. So, only the other two constituent peoples (Muslims and Croats) voted for the independence of BiH, but not the Serb people, in which way the Serbs were sent a clear message that they had to accept the will of the other two peoples imposed on them through a legally unacceptable referendum like that one, or the referendum will be even enforced against Serbs. Said in simple words, in that way the Serbs were ordered to accept it, otherwise they will be military destroyed by the Muslim-Croatian coalition. When such a message is sent, then the readiness to war against everyone thinking otherwise, seen through the eyes of the Hague Tribunal, is not a crime. According to the same Tribunal, the 40

Political anatomy of one judgment crime is the fact that the Serbs, in such situation, used their constitutional right to self-determination and establishment of their own state in order to defend themselves, although it was the right that belonged to them as one of the constituent people in BiH. All aforementioned makes this referendum constitutionally and legally invalid, having in mind the fact that at the time of its execution the provision of the Constitution of BiH according to which BiH was a democratic and sovereign state of the equal citizens, peoples of Bosnia and Herzegovina – Muslims, Serbs and Croats, was effective.

This means that it is not possible, and constitutionally valid, to have only two peoples vote for the independence, but each of the peoples must do so with the majority of its votes. If this does not happen, and it is obvious that it did not happen in this referendum, then the constituent peoples must continue the further negotiations on the constitutional and legal future of a specific political and territorial unit, and not impose their will upon the Serbs (like the Muslim-Croatian coalition did).

As this never happened, the mentioned fact speaks in favour of the legitimacy and legality of the plebiscite decision of the Serb people in BiH brought in November 1991, with which the Serb people, and not its political leadership, pleaded for an independent Serbian state which may be part of Serbia and Yugoslavia.

41

Prof. Milan Blagojevic, PhD This lengthy excursus into the field of constitutional law was necessary to realize how groundless the statements of the Hague Tribunal related to the Republic of Srpska and its organs are (the Republic of Srpska Army and its Police).

Besides, if we take into account the readiness of the Muslims and Croats to separate BiH by force from any union with Serbia and Montenegro, and thus disable the Serbs, as one of the constituent people in the then BiH, not to accept it, there is nothing illegal in the goals set up by the Assembly of the Serbian people in Bosnia and Herzegovina, adopted at its Sixteenth session held on 12th May 1992. Those goals were cited in the Paragraph 2857 (p. 1091 of the judgment) by the Trial Chamber. Those goals cannot be considered illegal if we take into account all the aforementioned reasons (and particularly the readiness of the Muslim-Croatian coalition to military run over anyone opposing the separation of BiH from the union with Serbia and Montenegro), and they were the following: a. separation from the other two national communities and the separation of state; b. creation of a corridor between Semberija and Krajina; c. creation of a corridor in the Drina Valley thus eliminating the river as a border between the Serbian states; d. creation of a border on the Una and Neretva Rivers; 42

Political anatomy of one judgment e. division of the city of Sarajevo into Serbian and Muslim parts and f. access of the Republic of Srpska to the sea.

When we take into account the unanimously expressed will of the Serbian people in BiH to establish the Serbian state (the Republic of Srpska) it is clear that the establishment and duration of the Republic of Srpska are not the consequences of just any strategic criminal plan of a certain group of people (called the leadership of the Serbs in BiH by the Tribunal). Due to the lack of such a plan, the thesis of the Hague Tribunal which is essentially based on the fact that the establishment of the Republic of Srpska meant the permanent removal of a significant part of the non-Serbs from its territory is also unfounded. Particularly groundless is the thesis of the Hague Tribunal that the force in any way, and specifically in broad and systematic way, was applied against the non-Serbs by the Army of the Republic of Srpska, Police of the Republic of Srpska or any other government organ of the Republic of Srpska.

Now, quite logically, emerges the question of the reason for sufferings of the Muslim and Croatian civilians. Reasons for the suffering of these civilians, as well as the suffering of the Serb civilians in the territory controlled by the Army of BiH, and the Croatian Defence Council, should be looked for in the deep-rooted mutual animosities, which is (unfortunately) 43

Prof. Milan Blagojevic, PhD constantly present in the local people for centuries. Even, nowadays (at the time of writing this paper) there are many examples of those animosities. It is enough to read the comments regarding the current political situation on the local social networks, or the comments given on the articles in the electronic editions of the national daily newspapers, to notice the amount of the inter-ethnic hatred still smoldering within the local people, waiting for the right moment to escalate into something that will, apparently, be even worse than the past war in Bosnia and Herzegovina. Therefore, it is a kind of constant what the Nobel Prize winner Ivo Andric noticed about the local hatred a long time ago, when he explained it in a genius manner like this (Ivo Andric: Pismo iz 1920. godine, Beoknjiga, Belgrade, 2013, p. 29): „Yes, Bosnia is a country of hatred. That is Bosnia. And by strange contrast, which in fact isn’t so strange, and could perhaps be easily explained by careful analysis, it can also be said that there are a few countries with such firm belief, elevated strength of character, so much tenderness and loving passion, such depth of feeling, of loyalty and unshakeable devotion, or with such a thirst for justice. But in secret depths underneath all this hide burning hatreds, entire hurricanes of tethered and compressed hatreds maturing and awaiting their hour.�

44

Political anatomy of one judgment So, the words about the same tragedy which Ivo Andric said to Dobrica Cosic during their conversation many years later, at the end of this life, are not surprising. Recalling these words, Dobrica Cosic said: „I have to recall on this occasion a well remembered conversation with Ivo Andric upon his return from Bosnia in 1972, when the Republic of Bosnia and Herzegovina officially celebrated eighty years from the birth of Ivo Andric.

When I asked him, ‘What are your impression from Bosnia, where you must have been exhausted by being praised, feasting and celebrating?’, Ivo Andric resignedly answered, ‘Now the situation in Bosnia, Dobrica, is just as the deceased Benjamin Kallay only dreamed about, but never dared to say in public. And may God have my foot across the Drina River never again.’ And as far as I know, it never did.”

(Dobrica Cosic: Bosanski rat, JP “Sluzbeni Glasnik, Belgrade, 2012, p. 243-244) When all this is taken into account, the thing that the local people can hardly accept and the foreigners hardly understand, is what should be used, and not the alleged joint criminal enterprise, to explain (but not to justify) the crimes to which the individuals and groups of people in the mid45

Prof. Milan Blagojevic, PhD dle of war events are prone, and which have always existed and will, unfortunately, always exist within the peoples here.

Those individuals and groups contain the entire hurricanes of tethered and compressed hatreds that Andric wrote about, which at the time of war as the last one in BiH, are not afraid nor have any scruples towards anyone in their intention to kill or abuse a person just for belonging to another nation.

Unfortunately, that is a truth and constant for the local area.

However, when it comes to the judgment against Karadzic the Trial Chamber does not want to accept this although they know that there are no proofs that Dr Karadzic (nor any of the government organs of the Republic of Srpska) ordered, committed or in any way participated in the execution of any particular crime that he was charged with. Moreover, the Paragraphs 3400 – 3408 of the judgment contain a long list of orders of the President Karadzic to prohibit the execution of crimes and order the relevant organs (the Ministry of Internal Affairs and the Army of the Republic of Srpska) to conduct the investigations regarding the cases in which the crimes had been conducted by individuals and groups.

Since there is no evidence that Dr Radovan Karadzic committed any crime in the mentioned municipalities (the judgment does not provide any evidence that he or any other member of the state leadership of the Republic of Srpska committed or in any way participated in the execution of any murder or other crimes listed in the indictment), the Trial Chamber turned to the illegal construction of the joint crimi46

Political anatomy of one judgment nal enterprise. This construction, which is not mentioned by a single word in the Statute of the Hague Tribunal (nor later in the Rome Statute of the International Criminal Court), exists only in the individual decisions of the Hague Tribunal, and this actually makes its illegal character. The tragedy is even worse if we know, and the time has proven it, that this construction was used in the Tribunal only against the accused Serbian leaders (political and military). So, the time and individual, so far adjudicated cases showed that it was created in order to judge (against) the persons of the Serbian nationality who were appointed to the leadership positions in the Republic of Srpska, Republic of Srpska Krajina and Republic of Serbia during the war. The Trial Chamber in the Paragraph 560 (p. 212 of the judgment) states that this construction is recognized by the jurisprudence of the Tribunal (so, not by regulations) in three basic forms.

According to the first, basic category this construction would encompass the situations in which all participants, acting pursuant to a common purpose, posses the same criminal intention to effectuate that purpose. The second form pertains to organized systems of ill-treatment (for example, in prisons). The reasons we stated previously indicate, individually and mutually related, that Dr Karadzic cannot be held responsible for any of the two given forms of this construction. In order to explain it in more details, I will use the example from the judgment of the Appeals Chamber in the case against Radoslav Brdjanin (the judgment of the Appeals Chamber of 47

Prof. Milan Blagojevic, PhD 3rd April 2007), after which I will bring this into connection with the indictment against Dr Radovan Karadzic. So, the judgment of the Appeals Chamber against Radoslav Brdjanin states the following (my italics): “430. The other requirements for a conviction under the JCE doctrine are no less stringent. A trier of fact must find beyond reasonable doubt that a plurality of persons shared the common criminal purpose; that the accused made a contribution to this common criminal purpose; and that the commonly intended crime (or, for convictions under the third category of JCE, the foreseeable crime) did in fact take place.

Where the principal perpetrator is not shown to belong to the JCE, the trier of fact must further establish that the crime can be imputed to at least one member of the joint criminal enterprise, and that his member, when using the principal perpetrator, acted in accordance with the common plan. In establishing these elements, the Chamber must, among other things: identify the plurality of persons belonging to the JCE (even if it is not necessary to identify by name each of the persons involved); specify the common criminal purpose in terms of both the criminal goal intended and its scope (for example, the temporal and geographic limits of this goal, and the general identities of the intended victims); make a finding that this criminal purpose is not merely the same, but also common to all of the persons acting together within a 48

Political anatomy of one judgment joint criminal enterprise; and characterize the contribution of the accused in this common plan. On this last point, the Appeals Chamber observes that, although the contribution need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is to be found responsible.

431. Where all these requirements for JCE liability are met beyond a reasonable doubt, the accused has done far more than merely associate with criminal persons. He has the intent to commit a crime, he has joined with others to achieve this goal, and he has made a significant contribution to the crime’s commission. Pursuant to the jurisprudence, which reflects standards enshrined in customary international law when ascertaining the contours of the doctrine of joint criminal enterprise, he is appropriately held liable not only for his own contribution, but also for those actions of his fellow JCE members that further the crime (first category of JCE) or that are foreseeable consequences of the carrying out of this crime, if he has acted with dolus eventualis (third category of JCE). It is not decisive whether these fellow JCE members carried out the actus reus of the crimes themselves or used principal perpetrators who did not share the common objective.

The quoted part of the judgment reflects not only the view of the Hague Tribunal in the case against Radoslav Brdjanin 49

Prof. Milan Blagojevic, PhD but in other cases as well. The above quote contains numerous arbitrarily provided information that violate legal security as one of the essential values of every legal system. In fact, the Appeals Chamber indicated that unless proved that the main perpetrator (e.g. a local criminal who murdered or raped a person of another nationality during the war) belonged to the joint criminal enterprise, the court must additionally prove that the crime may be assigned to at least one participant in the joint criminal enterprise, and that this participant, by having used the main perpetrator, acted in compliance with the common plan. According to the Tribunal, in that case the accused will be held responsible for a crime committed by the main perpetrator although not belonging to the joint criminal enterprise, if the crime of the main perpetrator instead of the accused may be assigned to any other member (participant) of the criminal enterprise. This is enough for the Tribunal, regardless of the fact that the other member, for example, prior to the execution of the crime had not had any contact with the accused based on which the accused may have concluded that the crime would be committed. In this case, to assign the committed crime to the accused it is enough that the accused and the other person (participant) are members of the joint criminal enterprise, which is unacceptable arbitrarily provided fact. This enterprise, as it may be further concluded on the basis of the mentioned judgment, must specify the common criminal purpose. That purpose is defined first by the Prosecutor’s Office in its indictments as, for example, the 50

Political anatomy of one judgment purpose of permanent removal of some population from the specific territory, after which the Trial Chambers only take it over in their judgments. In the practice of the Tribunal it meant that the political leadership of the Serbian people, although democratically elected and legitimate, did not establish the Republic of Srpska with their decisions on the establishment of the same, but such decisions (in the opinion of the Tribunal) represented a joint criminal enterprise whose allegedly specified common purpose was to permanently remove the Muslims and Croats from the territory of the Republic of Srpska.

How arbitrary this was, in the best confirmed the practice of the Tribunal in accordance to which everything done, due to the worst human impulses (e.g. hatred, revenge, greed) by the local criminals after that (through murdering, physical harming, raping or otherwise) represented a part of the alleged joint criminal enterprise.

So, for example, in the case of the indictment against Dr Radovan Karadzic it means that, according to the Tribunal, he is to be held responsible for murdering or raping each civilian in every of the municipalities listed in the indictment just because prior to that, count 14 of the indictment, stated that Dr Karadzic through participating in the establishment of political and state organs of the Republic of Srpska allegedly significantly contributed to achieving the goal of permanent removal of the Muslims and Croats from the 51

Prof. Milan Blagojevic, PhD territory of the Republic of Srpska by committing criminal offenses. In other words, the participation of Dr Radovan Karadzic, and that includes participation of other members of the state leadership, in the establishment of the Republic of Srpska, does not represent that, but the alleged joint criminal enterprise with the specified purpose whose achievement implied the commitment of each of individual crimes listed in the indictment. This is such an example of the arbitrariness expressed primarily by the Prosecutor’s Office, and then by the Trial Chambers, due to which each of them should be held responsible for the abuse of their official positions.

Since there has always been, and always will be, individuals prone to crime commitment, but who may not be related to the governmental bodies in any way, the Tribunal arbitrarily designed for such cases a so-called third form of the joint criminal enterprise. This type refers to the indirect executors of the crimes who do not belong to the alleged joint criminal enterprise and who commit murders, rapes and other crimes against specific population. According to the practice of the Tribunal even then there is a responsibility of other participants of the alleged joint criminal enterprise.

The only condition is that the murder or some other crime for them represented a natural and foreseeable consequence of effectuating their common purpose, and whether something was foreseeable or not will, of course, be decided by the Hague Tribunal. It is understood that in all cases against the Serbs accused in the Tribunal, including the case against 52

Political anatomy of one judgment Dr Radovan Karadzic, a single crime for them always represented a natural and foreseeable consequence, since that is simply the opinion of the Prosecutor’s Office and the Trial Chambers. The first thing that is immediately noticeable is the legal uncertainty of such a construction, because there are no, nor can be, reliable marks on the basis of which it could be possible to predict in advance if something is a natural and foreseeable consequence of someone’s behaviour (to predict, for example, that in one of the municipalities a local criminal would kill or rape someone just because that person is of different nationality). However, something like that has been created in the jurisprudence of the Tribunal and the decision regarding it depends only on the assessment, or better to say the will of the judges. It is not hard to conclude, which has been proved by the Tribunal practice so far, that the third form of liability was applied exclusively in the cases of the accused Serbian officials. The same happened in the case of the judgment against Dr Radovan Karadzic. So, in that case, to say it in plan language, he was, in an illegally groundless manner, found to be guilty in all the cases of the criminal individuals and groups on the Serbian side who, under the influence of the hurricanes of tethered and compressed hatreds, committed murders, rapes and other misdeeds against the Muslims and Croats during the war. “The reason” for such a conviction of Dr Karadzic, in the opinion of the Trial Chamber (Paragraph 3521 of the judgment), is that the mentioned misdeeds according to the judges were foreseeable 53

Prof. Milan Blagojevic, PhD (???) for Dr Karadzic. However, the judgment does not provide any valid explanation regarding how Dr Karadzic could have foreseen what some local criminal would have done, which is not surprising since the irrational constructions (such as construction of a joint criminal enterprise) cannot be explained. It is obvious that this is something that is, not only legally groundless, but highly irrational and arbitrary construction.

What kind of absurd this is, is probably the best confirmed by what has recently happened in the practice of the Supreme Court of the United Kingdom. Namely, the third form of the construction of the joint criminal enterprise as a form of liability of the so-called secondary participants in the crimes was expanded (by court practice rather than the law) in 1984 by the decision of the British Council of State. The form existed until 18th February 2016, when it was put out of force by the decision of the Supreme Court of the United Kingdom in the case Ruddock v The Queen (the decision is available at https://www.supremecourt.uk/cases/docs/uksc2015-0015-judgment.pdf). In this decision the Supreme Court determined that (for all the past decades) the decision brought in 1984 which introduced the mentioned form of a joint criminal enterprise was wrong. Practically it means that the criminal law regarding this issue is returned to where it should be, i.e. to the requirement that, in cases like this, for the liability of accomplices the same subjective element must be sought as for the main perpetrator. More simply put, and 54

Political anatomy of one judgment applied to the example of a murder I mentioned previously, accomplices cannot be found guilty for a murder committed by another person unless that act was encompassed by the accomplices’ premeditation.

Therefore, this is the essence of this construction that represents a sort of a crime itself. It is the essence of each of the counts of the indictment against Dr Radovan Karadzic, including both, those discussed in this paper and the ones related to Sarajevo and Srebrenica. That is why the reader must bear in his mind everything previously said about this, even in the parts of the monograph dedicated to Sarajevo and Srebrenica, in order to avoid the unnecessary repetition.

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III. Tragedy of the Serbs in Sarajevo I entitled this part of the paper in this way for a certain reason. Namely, there are some undeniable facts about the sufferings of the Serbs in this city during the past war which must be pointed out and which are related to the judgment against Dr Radovan Karadzic. During the past war 3.036 Serbs were killed in the part of Sarajevo controlled by the Muslim forces, which can be proved by the relevant list kept in the database of the Center for Research of War, War Crimes and Missing Persons of the Republic of Srpska.

In addition to this, there is only one monograph (Marko Mikerevic: Sarajevski kazani smrti, Doboj, 2004, p. 110-287) which describes sufferings of numerous Serbs in Sarajevo, as well as the information on 845 individually selected persons of the Serbian nationality who were systematically killed by the members of the Army of BiH and the Muslim paramilitary formations during the war in the part of Sarajevo controlled by the Muslim authorities. So, only this fact (to which many other proofs should be added) indicates the criminal establishment 57

Prof. Milan Blagojevic, PhD of today’s BiH. Special significance of the given monograph is to be found in the fact that its author, during the war, lived in the part of Sarajevo controlled by the Muslim forces and worked as a lay judge in the local District Military Court.

Therefore, it is a first-hand testimony. Thanks to the fact that he worked as the lay judge in the mentioned court, Marko Mikerevic in the given monograph emphasizes (p. 51 of the monograph) that there were around 5.000 prisoners of the Serbian nationality in the detention camp “Viktor Bubanj” which is today, ironically, place of the Prosecutor’s Office of Bosnia and Herzegovina and the Court of BiH. Having in mind these, as well as many other information it contains, this monograph is not only a sort of evidence on the sufferings of the Serbs but also a kind of confirmation of the constant interethnic hatred in this area.

In addition to the foregoing, the systematic crimes committed against Serbs in the part of Sarajevo controlled by the Muslim forces are also confirmed by the testimonies of many eyewitnesses. I singled out one of them for the needs of this paper. It is a testimony given by the protected eyewitness GRM-311, in the Hague Tribunal in the case against the General Ratko Mladic. Below I provide the entire testimony, as given in the report of the news agency SRNA, and taken over by the daily newspaper Glas Srpske (my italics): “05.06. 2014. 23:28 Srna 58

Political anatomy of one judgment The Hague – At the trial of former General of the Republic of Srpska Army/VRS/ Ratko Mladic the protected eyewitness GRM-311 described that at the beginning of the war in Sarajevo he was kidnapped and tortured 11 times just for being of Serbian nationality, and that the persons who did this showed him “a bunch of killed people, threatening that he will end up like them”.

“Probably to kill me mentally. Each time I was beaten and threatened that I must not meet anyone”, said the eyewitness, describing the ways in which he was abused by the unknown people.

He testified that he was taken on 5th January 1993 by the masked persons to the Pofalici cave in which there were 10 corpses, on the top of which he saw a body of a child who was decapitated, and on whom a cross was engraved, it was transmitted by the media.

The witness described that on 27th April 1993, on his way to work, one man forced him to get in a car and then he drove him to the orthodox church Svetog Preobrazenja in Novo Sarajevo, where he saw three human heads hanging on the door of the church.

A protected witness who worked in a factory of hand grenades in a civilian facility in Sarajevo from 1992 to 1994, emphasized that the Serbian forces did not keep Sarajevo under siege, but that they only defended their positions.

59

Prof. Milan Blagojevic, PhD The witness described that he saw in the city the attacks of the Army of BiH on the civilian areas under their own controll, just to accuse the Army of the Republic of Srpska for them. “Not far from the Sarajevo Television there were two mortars of the Army of BiH which operated daily and the shells were mostly falling on Svrakino Selo and Hrasno Brdo.

The day after, all the Sarajevo media were reporting how the criminals from the hill destroyed Svrakino Selo, saying the number of victim, and the same for Brdo Hrasno”, testified the witness.

He also said that a few times he witnessed how the Army of BiH shelled the positions held by the VRS from the Kosevo Hospital. “I saw mortars in the hospital several times”, said the protected witness.”

(Quoted according to http://www.glassrpske.com/ novosti/vijesti_dana/Svjedok-U-Sarajevu-11-putakidnapovan-i-zlostavljan-jer-je-Srbin/155231.html. accessed on 6th June 2014) Particularly the suffering of the Serbs in Sarajevo, which is a tragedy of epic proportions, represents their collective exodus from Sarajevo after the war in BiH ended. This happened because the Serbs did not have any conditions any more to live freely on their ancient hearths, after which that 60

Political anatomy of one judgment part of the BiH territory, as defined by the Dayton Agreement, belonged to the thing that, at the time of its entry into force, was named the Muslim-Croatian Federation. This exodus in 1996 made 120.000 Serbs leave Sarajevo forever.

However, the Muslim forces in Sarajevo during the war committed crimes not only against Serbs but also against their own population. This is the best confirmed in the case against the General Ratko Mladic. During the trial, a protected witness GRM-116, who during the war was a member of the security of Alija Izetbegovic, was examined. He testified on the shelling of the Sarajevo’s bazaar Markale on 5th February 1994. As reported by the daily newspaper Nezavisne Novine on 15th December 2015 (http://www.nezavisne.com/ novosti/bih/Izetbegovicev-cuvar-Alija-odobrio-napad-naMarkale/342465, accessed on 15th December 2015), this witness during the hearing said that as a member of the special unit “Pearls” (Biseri) in the period 1992-1994 he worked as the security of the Presidency of BiH and thus had a chance to hear what Alija Izetbegovic, Reis ul-Ulema Mustafa Ceric, General Sefer Halilovic and other officials talked about at the meetings. Regarding the shelling of the Markale bazaar this witness, as reported by Nezavisne Novine, said the following: „Talking about the attack on Markale, GRM-116 testified that “the idea came from Reis, and it was conducted by the Generals Halilovic and Mustafa Hajrulahovic aka Talijan.

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Prof. Milan Blagojevic, PhD The two of them presented the plan to place the mortar in the direction of Spicasta stijena, at Markovici village, because it was familiar that there was the Serbian artillery that often opened fire, so to mask that shell with the artillery fire”, he said. “Alija and Reis accepted that, and Sefer turned to Talijan and said, “Talijan will do it…”, the witness described, adding, “I was present when Alija approved it”. At the next meeting, however, Halilovic reported that “the first attempt was not successful” because “the shell fell a roof on near Markale”, and then they were waiting for a new attempt until the same UNPROFOR crew, with whom they made a deal not to “count our shells” reached its observation position again.

“Alija told them, “Try again.” They left and soon we heard what happened with Markale”, said GRM-116.”

For the things I will discuss in the part of the paper dedicated to Srebrenica, it is necessary to mention that the protected witness GRM-116 during the testimony said the following (http://www.nezavisne.com/novosti/ bih/Izetbegovicev-cuvar-Alija-odobrio-napad-naMarkale/342465, accessed on 15th December 2015): „Izetbegovic and Reis ul-Ulema Ceric were also meeting, according to the words of the witnesses, with the commander of the 28th Division of the Army of BiH in Srebrenica, Naser Oric. They ordered to him to organize attacks on the 62

Political anatomy of one judgment surrounding villages to “provoke Serbs and make them shell Srebrenica, in order to cause the international intervention against the Serbs. I heard them talking how Naser did a good job”, said GRM-116”.

Having in mind the previous quote on the shelling of their own population at the Sarajevo bazaar Markale, no wonder that the member of the Trial Chamber in the case against Dr Radovan Karadzic, Judge Melville Baird, appended his dissenting opinion (p. 2542-2549 of the judgment) on this issue, voting for Dr Karadzic acquittal of the mentioned accusation. In the final part of his appended opinion, this Judge, taking into account the evidence, emphasized that there was a reasonable doubt that the Muslim side fired a shell on the Markale bazaar, which is why he believes Dr Karadzic must be released from this charge.

In the part of the indictment referring to Sarajevo, Dr Karadzic was charged with terrorizing and the campaign of sniping and shelling of civilians in Sarajevo. When faced with such an accusation, a man would think that nothing but the peace was coming from the inside of Sarajevo, and that nobody was attacked from Sarajevo, and that around Sarajevo there were “criminal organs and soldiers of the Republic of Srpska”, who terrorized inside-peaceful Sarajevo. But, the conclusions like this do not match the truth which the Trial Chamber, like in the case of the mentioned municipalities in 63

Prof. Milan Blagojevic, PhD the previous part of the paper, does not want to present in its judgment. Therefore it is necessary to say, as a reminder, that during the entire war in BiH in the area controlled by the Muslims in the region of Sarajevo operated the First Corps of the Army of BiH. At the beginning of the war, the First Corps counted 34.500 soldiers but the number started increasing and in 1995 it was 40.500. This military force was divided into three divisions, three operational groups and 15 brigades, which performed 36 offensives against the Republic of Srpska in which more than 7.000 of its soldiers and civilians were killed. That means that almost every month while the war lasted the First Corps of the Army of BiH from Sarajevo carried out one offensive against the Republic of Srpska, trying to break its defense, in which it, fortunately, failed.

But, if it had succeeded in it, that would have destroyed the Republic of Srpska, and there would not have been the Dayton Agreement for there would not have been a need for the same, and the Serbian population (the part who would have managed to survive) from this territory, like those from the rest of the territory of the Republic of Srpska, would have experienced the same destiny as the Serbs from the Republic of Srpska Krajina did.

Therefore, these are the facts that must be taken into account and included into the judgment. Unfortunately, there is nothing of this in it, but that is not surprising since in that case this part of the indictment against Dr Karadzic would be eliminated. But, since he must be sentenced by all means, 64

Political anatomy of one judgment the judgment tries to provide the “reasons”, but their legal groundlessness is recognized in every example listed in the judgment. I chose one more example for this occasion. It refers to the Paragraphs 3671 – 3684 (p. 1426 – 1433 of the judgment) related to the Schedule F. 8 of the indictment.

In this case, as it follows from the judgment, it is an event that took place on 19th June 1994 in which, while they were traveling in a tram trough Sarajevo (on Zmaja od Bosne street to Alipasino Polje), Jasmina Kucinar and her four-yearold son Damir Kucinar were wounded, as well as Mensur Jusic and Belma Sukic. According to the judgment all the shots were from the sniper, so it was necessary to determine the direction from which they came. For this purpose, the Trial Chamber, among others, examined a prosecution witness Bogdan Vidovic, crime technician from the Sarajevo Security Services Center, and Mile Poparic, defense ballistic witness. After the event, witness Vidovic participated in the investigation at the site as a crime technician. In the final report of the investigation team of the Sarajevo Security Services Center it was indicated, as the witness Vidovic said, that the bullet came from the direction Grbavica – Vraca and that “it was probably fired from the aggressors’s positions in Grbavica” – p. 1427 and 1428 of the judgment.

In the Paragraph 3674 of the judgment it is stated that during cross-examination Vidovic agreed that the fire could have originated from the building of the today’s Parliamentary Assembly of BiH (it was then the building of the Assembly of 65

Prof. Milan Blagojevic, PhD SR BiH) in which immediate vicinity, like everyone familiar with Sarajevo streets knows, is the building of former Executive Council of SR BiH (today building of the Council of Ministers of BiH). I emphasize this part of Vidovic’s testimony with a reason. In fact, in his testimony, the expert witness Mile Poparic emphasized that the investigation team of the Sarajevo Security Services Center had not determined the direction from which it was fired but simply assumed that it was fired from the positions of the Army of the Republic of Srpska in Grbavica (Paragraph 3677 of the judgment). The expert witness Poparic then said that he analyzed the video footage recorded by Van Lynden of the VRS positions at the Jewish cemetery, and that he noticed that the tram lines were not visible from that position because the trees blocked the view (Paragraph 3678 of the judgment). On the basis of his own investigation of the scene, Poparic determined that the angle the bullet formed with the tram wall was 28,8 degrees, and thus concluded that the bullet was not fired from the direction of the Jewish cemetery (which is 570 meters far from the scene) but that is was fired from the building of the Executive Council of SR BiH (which should be related to the statement given by the witness Vidovic who during crossexamination allowed the possibility that the bullet was fired from the building of the Assembly of BiH in the immediate vicinity of the building of the Executive Council of SR BiH).

Having determined that, the expert witness Poparic in support to this finding provided another very important additional 66

Political anatomy of one judgment explanation. Namely, he said that the bullet had such an energy that it traveled through the metal wall of the tram and then across the aisle where it hit the seat on the opposite side of the tram, damaging the metal railing, indicating thus that it was fired from a relatively short distance thus implicating again the building of the Executive Council of SR BiH as the location from which it was fired (Paragraph 3679 of the judgment). However, this explanation was not analyzed by the Trial Chamber but it refused the report of the expert witness Poparic, after which it concluded that the bullet was fired from the Serbian positions at the Jewish cemetery. In this way the conclusions of the Chamber became contrary not only to the report of the expert witness Poparic, but also to the statement of the witness Vidovic who said that in the report of the investigation team of the Sarajevo Security Services Center it was indicated that the bullet came from the direction of Grbavica – Vraca. In addition to this, the conclusion of the Trial Chamber is also contrary to the other two important parts of the witness Vidovic statement. Namely, he allowed the possibility that the bullet was fired from the building of the Assembly of SR BiH which is in the immediate vicinity of the building of the Executive Council of SR BiH which the expert witness Poparic determined to be the place from which the bullet had been fired. The Trial Chamber did not provide any reasons for this in its judgment. The judgment also lacks any reasons related to the fact, also stated by the witness Vidovic, that at the time of the mentioned event the place 67

Prof. Milan Blagojevic, PhD in which it happened (Paragraph 3674 of the judgment) was near the confrontation line between the Serbs and Muslims, which also indicates that it is possible that the bullet was fired by the Muslim side.

Everything previously mentioned shows not only cardinal failures of the Trial Chamber, but also its need to assign to the Serbian side, to the greatest extent possible, all negative events that happened in Sarajevo in which innocent people were killed. Of course, all this is necessary in order to be able to impose on Dr Karadzic responsibility for this event as well, although there are no proofs that he is, in any way, related to this event. This is due to the fact that the judgment of the Trial Chamber did not provide any evidence for this, nor could it have provided.

So, since there was no evidence that Dr Radovan Karadzic (nor any other member of the state leadership of the Republic of Srpska) ordered, encouraged or in any other way participated in the commitment of any crime, they used the illegal and immoral construction of a joint criminal enterprise on the basis of which he (and other members of the political and military leadership of the Republic of Srpska) was found guilty of allegations like those to which this part of the indictment referred.

Therefore, I will end this part of the paper by reminding you of two mutually related things. One refers to the real reason for the establishment of the Hague Tribunal, and 68

Political anatomy of one judgment the other is a propos the judicial disgrace known as a joint criminal enterprise. As for the first thing, the historian Zeljko Vujadinovic rightly observes that: „...processes before the International Criminal Tribunal for former Yugoslavia … have the dimension of – imposing on Serbia and the Serbs the responsibility for the outbreak of the civil war in 1991 to 1995, to declare them as the aggressors against Croatia, Bosnia and Herzegovina, Kosovo and Metohija, and thus to legally and morally justify the engagement of NATO in the Yugoslav civil war”.

(Zeljko Vujadinovic: Medjunarodni krivicni sud za bivsu Jugoslaviju kao izraz svog vremena, Politeia, the scientific journal of the Faculty of Political Sciences in Banja Luka, no.

1, Banja Luka, 2011, p. 228) This part of the statement by Vujadinovic should be related to fact which he pointed out with the following words: „According to the research of Nora Beloff, the theoretical basis (for the decision on the establishment of the Hague Tribunal – my remark) was created at the University of Chicago, which involved George Soros, a banker, cofinancier of numerous non-governmental organizations, holder of honorary doctorates at the universities in the 69

Prof. Milan Blagojevic, PhD USA, Great Britain and Hungary. The American diplomat Richard Holbrooke testified before the US Congressional Committee on Security and Cooperation in Europe that the idea about the Tribunal referred primarily to the prosecution of the Serbs as the side guilty of war crimes.”

(Zeljko Vujadinovic: ibidem, p.231) The other thing I would like to point out, related to what Zeljko Vujadinovic was talking about, was said by Matthew Parish. He commented the construction of a joint criminal enterprise in the following way: „The notion of ‘a joint criminal enterprise’ was invented as a new concept to accuse people of war crimes in the cases in which the proofs of their direct involvement in the murders or other acts of inhumanity were not strong.

In the fog of war it is often impossible to determine who killed whom, when, was it performed upon the order of the superior or did the superiors knew what was going on at all. This is even harder regarding the wars in the former Yugoslavia, where the violence was bloody, where all sides carried out their operation through the paramilitary formations, where the commanding structures were vague and the written orders very rare. The way of discovering the facts characteristic for the local courts and the cases of the ordinary criminal 70

Political anatomy of one judgment offenses was not available to the ICTY. In spite of this, the Tribunal could not release everyone who would come before it. That would cause a mockery and its international donors would soon leave it. That is why a joint criminal enterprise was created as a comprehensive legal theory to sentence the accused even with the lack of proofs that would be required by the local criminal and legal standards.

Civilians were killed and the population was moved by force. A specific accused person was part of the group of people who participated in the events in one or more ways.

Therefore the accused is guilty no matter what he knew, wanted, did or intended.�

(Matthew Parish: Sudska politika i ratovi na Balkanu, journal Strani pravni zivot, no. 2/2013, Belgrade, 2013, p.

11).

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IV. Judicial untruth about Srebrenica A part dedicated to the events which took place in Srebrenica in July 1995 will be a bit longer compared to other parts of the monograph. I will do so due to the fact that the Hague Tribunal with its judgments regarding these events intends to impose on the Republic of Srpska and the Serb people a responsibility for the genocide as the ultimate crime.

In accordance with such intentions, the Republic of Srpska and the Serbian people have been stigmatized as genocidal.

Regarding this, at the very beginning I must say that (as it was expected) the judgment against Dr Radovan Karadzic failed to determine the truth about suffering of the Serbs in this area during the war 1992-1995. And the facts in regard to this talk about 2.428 Serbs (among whom there were many women, children and older people) who were killed by the Muslim forces from Srebrenica in the numerous attacks carried out continuously during the war, as documented in 73

Prof. Milan Blagojevic, PhD the database of the Republic Center for Research of War, War Crimes and Missing Persons of the Republic of Srpska.

Dozens of the Serbian villages were burned in these attacks and the Serbian population that managed to survive the attacks was expelled. Many information on these crimes collected and systematized by numerous sources testify on the kind of suffering. For this occasion I selected a significant work of the professor Milivoje Ivanisevic entitled Knjiga mrtvih Srebrenice i Birca 1992 – 1995 (the book is available at http://www.serb-victims.org/). In this book professor Ivanisevic collected data on the thousands of the Serbs killed in this region in the period from 1992 to 1995.

Dozens of the Serbian villages were destroyed, which was done by the Muslim forces in the first months of the war, which is stated in the mentioned book (p. 1 and 2) by the following words of professor Ivanisevic: „What specific consequences were caused by the Muslim armed activities that lasted several months can be estimated on the basis of the following facts. Only in the municipalities of Srebrenica and Bratunac, out of 93 settlements in which, according to the BiH census conducted in April 1991, lived Serbs as well, 81 of them were destroyed (the only villages that were not destroyed by the Muslims were Crvica, Lijesce, Petrica and Skelani in the municipality of Srebrenica, and in the municipality of Bratunac, beside the urban part of 74

Political anatomy of one judgment the town the Serbs also remained in the villages Dubravice, Jelah, Krasanovici, Pobrdje, Polom, Repovac, Rakovac and Slapasnica (the municipality of Bratunac consists of 48 villages)). We must add to this number at least 30 villages and hamlets destroyed in the municipalities of Milici, Vlasenica and Zvornik.

Out of 9390 people of the Serbian nationality in the municipality of Srebrenica after the Muslim attacks, there remained only 860 Serbs in their homes and villages, or just 9%.�

The Muslim forces from Srebrenica carried out the crimes against the Serbs in a continuous and systematic way during the entire war. In committing those crimes their executors showed the cruelty, persistence and ruthlessness, since they killed all, the old ones, women and children. How inhuman and ruthless the perpetrators were can be seen in the following examples.

In the crimes in Kravica 51 Serbs were killed and 80 wounded. Among the killed ones there was a priest Janko Savic, who suffered the most terrible torture before he was killed, which is testified by the fact that his body was without arms and legs. He was left at the crime site as a log, set up in sitting position, with cups for coffee set up all around him as if he was preparing to drink a coffee.

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Prof. Milan Blagojevic, PhD (http://www.novosti.rs/vesti/naslovna/reportaze/aktuelno.293.html:554469-Srpska-sela-jos-u-crnini. Accessed on 24th June 2015) In the same crime in the broader area of the village Kravica, 688 Serbian houses were robbed and burned, as well as around 2.000 ancillary and 27 social facilities. So, in one day on that date, 7th January 1993, around 1.000 people lost their homes and walked through the snowdrifts towards the Drina river to avoid certain death. (http://www.rtrs.tv/vijesti/vijest.php?id=182712. Accessed on 4th January 2016) After the crimes committed in Skelani, in the hamlet Kusici, at that time fourteen-year-old Cvjetko Ristic lost his mother Ivanka, father Novak, sixteen-year-old brother Mico and nineteen-year-old sister Mitra Ristic, they were all killed.

And what is there to say for the eleven-year-old boy Slobodan Stojanovic who died as a real martyr in the crime committed by the Muslim forces at the beginning of June 1992 in the village Donja Kamenica in the municipality of Srebrenica. The corpse of this child was found with sixth teeth missing in the upper jaw, with the stomach cut in the form of a cross and the arms cut off from the elbows downwards.

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Political anatomy of one judgment The records also mentioned the case of Nenad Rankic whom the Muslim criminals roasted on a spit, and the case in which only one old lady survived out of fifty Serbs who remained in Srebrenica at the beginning of the war, while the other old lady Ivanka Mirkovic was found in July 1995 slaughtered on the doorstep. (http://www.rtrs.tv/vijesti/vijest.php?id=182712. Accessed on 4th January 2016) From the previously mentioned examples it can be reliably concluded not only about the cruelty expressed in committing crimes and the ruthlessness of the perpetrators, but also about the fact that the perpetrators and their commanders were intending to eliminate every trace of the Serbian people in this area. Therefore it is no wonder that the French General Phillippe Morillon during his testimony in the case against Slobodan Milosevic in the Hague Tribunal said that the mentioned Muslim crimes arose the Serbs’ desire to revenge. Below I will give the relevant excerpt from the testimony of the General Morillon (transcript of Morillon’s testimony in English language can be found on the Internet portal of the Hague Tribunal, at http://www.icty.org/x/cases/ slobodan_milosevic/trans/en/040212ED.htm. Accessed on 29th January 2016). The General Morillon first described Naser Oric in the following way:

77

Prof. Milan Blagojevic, PhD “Naser Oric attacked during the Orthodox holidays and destroyed villages, massacring all the habitants. This created a degree of hatred that was exceptional in the region…”.

General Morillon in his testimony said the following as well (my italics): “Naser Oric was a master of the war who in his region introduced the reign of terror over the people… I was not surprised when the Serbs took me to one village to show me the evacuation of the bodies of inhabitants who were damped in one hole, it was a village near Bratunac. This helped me realize how much this hellish state of blood and revenge… was only an introduction to the situation in which I, personally, feared that the worst could happen if the Bosnian Serbs managed to enter the enclave and Srebrenica… I was afraid that the Serbs, local Serbs… were eager to revenge for everything that they assigned to Naser Oric…. they were in that infernal cycle of revenge.”

After the Judge Patrick Robinson asked him if he believed that the massacre of Muslim prisoners in July 1995 was a direct reaction to all that Naser Oric had done to the Serbs in the previous years, the General Morillon answered:

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Political anatomy of one judgment “Yes, I am convinced of that. It does not diminish the responsibility of the individuals who committed those crimes, but I am convinced of that.�

The Government of the former Federal Republic of Yugoslavia submitted to the United Nations a report on crimes committed in this region in the period from April 1992 to April 1993, which has never been discussed at the meetings of the Security Council. It is therefore not surprising that the Resolution 819 by which Srebrenica was declared a safe zone of the United Nations, does not mention in a single word, nor convicts the Muslim crimes against the Serbian population in the municipality of Srebrenica. So, the truth about the suffering of the Serbs in this region was avoided.

This practice continues in the Hague Tribunal all the time of its existence. When this Tribunal issued the indictment against Naser Oric it did not contain a single word regarding any of the numerous crimes committed against the Serbian civilians (old people, women and children) in the municipality of Srebrenica by the Muslim military forces from Srebrenica commanded by Naser Oric. Namely, the third amended indictment against Naser Oric mentioned only a few of many sufferings through which the Serbs had gone. However, that was done in a way which is humiliating for the victims. In fact, none of the counts of the indictment contained information on the numerous killed Serbs. Instead, 79

Prof. Milan Blagojevic, PhD the indictment mentioned only a few villages for which it was said to be attacked by the forces under the command of Naser Oric. Still, even when indicating those several villages, the indictment only stated that the Serbian homes and other facilities were destroyed and burned, but it deliberately omitted to mention the killing of many Serbian civilians.

When such an indictment is written and submitted as in the case against Naser Oric, then the preparations are made for the Trial Chambers (and Appeals Chambers) to judge only on the basis of what is written in the indictment. Moreover, the Trial Chamber rendered the judgment on 30th June 2006 (which was not annulled by the judgment of the Appeals Chamber in that part) which found Naser Oric not guilty even of such twisted counts of the indictment (counts 3 and 5 of the indictment) offering a stereotypical “explanation” of the Trial Chamber that read, “There is no evidence that the accused exercised effective control over the groups of Bosnian Muslim fighters” (see the Paragraphs 709 – 711 of the Trial Chamber judgment).

In the same way the truth about the suffering of the Serbs in Srebrenica region remained hidden in the judgment against Dr Radovan Karadzic, since it does not mention any of it.

The problem with determining the truth about the events that happened in Srebrenica in July 1995, specifically in regard to their appropriate legal qualification and the number of the murdered, was made by the Hague Tribunal in the time of the 80

Political anatomy of one judgment judgment against the General Radislav Krstic. I say this since in the above mentioned judgment the Srebrenica case legally (and morally) had been defined as a genocide, after which all other Trial Chambers of the Tribunal simply followed this practice, which happened in the case of the judgment against Dr Radovan Karadizc as well. That is why the Srebrenica case represents something that might be called the tragedy of the judiciary, characteristic also for the local judiciary. It often happens that the courts bring decisions which are not legally founded. But, when the illegal character of such a practice is pointed out, then something hard to explain rationally happens. In fact, then the holders of the judicial functions who made the problem start defending their “opinions� more earnestly and even manage to impose it in a way to make it valid, regardless of the law that says quite opposite about it. The things become absurd by making holders of such judicial functions, who acted and act contra legem and contra constitutionem in individual cases, the lectures on the topics they turned into issues, and these topics are discussed at expert conferences organized for the professional development of other holders of the judicial functions. I attended one such conference in Sarajevo in February 2014. The topic was the unconstitutional retroactive implementation of the Criminal Code of BiH of 2003 on the events that happened during the war from 1992 to 1995. Although the European Court of Human Rights in a way annulled the relevant judgments of the Court of BiH which represented the unconstitutional 81

Prof. Milan Blagojevic, PhD retroactive implementation of the criminal offense of the war crime against the civilians of the Criminal Code of BiH on the events in the past war, the lecture was held by exactly the lady judge of the Court of BiH who participated in rendering such unconstitutional judgment.

Why do I mention this? I do it for a simple reason of all the judgments of the Hague Tribunal in the case of Srebrenica going the wrong path which the Tribunal, and later the International Court of Justice, followed after it had been “prepared” by the Trial and Appeals Chamber in the case against the General Radislav Krstic. In order to understand this I will remind you of the corresponding parts of the judgments issued by the Trial and Appeals Chamber of the Hague Tribunal in the given case. The judgment of the Trial Chamber rendered on 2nd August 2001 defined the events in Srebrenica as a genocide, which is a qualification defined by the Trial Chamber due to the “explanation” it provided prior to it (my italic): „84. The Trial Chamber is convinced that in July 1995 the Bosnian Serb forces, after the fall of Srebrenica, killed several thousands of the Bosnian Muslims. The overall number of the killed is probably between 7000 and 8000 men.”

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Political anatomy of one judgment In the second-instance proceeding the Appeals Chamber issued the judgment on 19th April 2004 which in the beginning indicated: „2. ... the Bosniak women, children and the old people were taken from the enclave, and 7.000 to 8.000 Bosnian Muslim men were systematically killed.�

After this, all the judgments in other cases, even the cases before the International Court of Justice, accepted the aforementioned legal qualification. The only difference between them is the number of killed people, since the judgment against Vujadin Popovic and others said it was 5.336, the judgment against the General Zdravko Tolimir referred to the number of 4.970 while in the judgment against Dr Radovan Karadzic the Trial Chamber mentioned the number of 5.115 (Paragraph 5519, p. 2304 of the judgment).

Still, in regard to both, the legal qualification and the number of the killed, none of the judgments matches the truth.

In regard to the legal qualification the judgments are legally unfounded for the following reasons. By defining the notion of genocide, its creator Raphael Lemkin in his book Axis Rule in Occupied Europe defines its three layers.

First he said it to be a coordinated plan of different actions aimed at destruction of the essential basis of a national group life, in order to destroy that group. The objective of such a plan is to disintegrate political and social institutions of 83

Prof. Milan Blagojevic, PhD culture, language, national feelings, religion and economic existence of the national group, and the destruction of the personal security, liberty, health, dignity and even lives of the individuals belonging to such a group. Finally, Lemkin said that a genocide is directed against the national group as an entity, while the actions involved are directed against individuals, not in their individual capacity, but for belonging to a specific national group.

(Raphael Lemkin: Axis Rule in Occupied Europe Laws of Occupation, Analysis of Government, Proposals for Redress, Washington, Carnegie Endowment for World Peace, 1944, p.

79).

Corresponding to this definition is the opinion of the International Court of Justice, provided as the advisory opinion on 28th May 1951. On this occasion the ICJ, while giving its opinion regarding the question concerning reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, repeated a sort of definition of genocide provided with the Resolution 96 (I) of the UN General Assembly on 11th December 1946. Regarding this the Court shows the intention of the United Nations to convict and punish genocide as (my italics): „...a crime under the international law involving a denial of the right of existence the entire groups of people, denial that shocks the mankind consciousness and results in great 84

Political anatomy of one judgment losses for the mankind, which is opposite to the moral law and goals and spirit of the Resolution 96 (I) of the General Assembly of the United Nations of 11th December 1946”.

However, the above standards will not be followed in the practice of the Hague Tribunal in cases referring only to the Republic of Srpska, or better to say against her. Before I present the way in which they created the basis for the mentioned noncompliance, I will point out to the behaviour of one of its creators, professor Cherif Bassiouni. The behaviour of professor Bassiouni is related to the crimes against the Serbian population in the municipality of Srebrenica committed by the Muslim forces under the command of Naser Oric, which is indicated in one monograph by George Bogdanich.

In regard to professor Bassiouni this author stated the following: „Cherif Bassiouni, head of the expert commission of the UN, Egyptian expert in Islamic law who taught at the Faculty of Law of DePaul University in Chicago, in the final report of the Expert Commission did not mention Oric’s attacks on the local population, although he had at his disposal the forensic evidence provided by the extensive reports of Dr Stankovic.”

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Prof. Milan Blagojevic, PhD (George Bogdanich: Uvod u osvajanje Srebrenice. Published in the monograph Masakr u Srebrenici, dokazi, kontekst, politika, prepared by Edward S. Herman, publisher Foundation “Istorijski projekat Srebrenica” Holland, Belgrade, 2011, p. 46 and 47) The previous words state enough about the behaviour of a very important person who participated in the creation of the conceptual basis for the departure from the legal norms regarding genocide which had been followed until then. It was conceived outside the Hague Tribunal, and that is in a specific way confirmed by the following long quote from the paper entitled “Genocide as a Concept in Law and Scholarship: a Widening Rift?”, by the Swedish professor Kjell Magnusson (my italics): „A Commission set up by the Security Council of the United Nations on 6th October 1992 is of great importance for the later legal development of the genocide issue. Its task was to investigate the war crimes and serious crimes against humanity committed in the former Yugoslavia since 1991. The head of the Commission was M. Cherif Bassiouni, professor at the Department of International Law of the DePaul University in Chicago. The final report of the Commission is presented to the Council of Europe on 24th May 1994 and it was discussed on 28th December the same year. The report consists of an introduction, a lengthy summary and 12 annexes in 86

Political anatomy of one judgment approximately 3300 pages. The final report will later become a crucial foundation for the work of the ICTY. It represented an archive database for the court proceedings and initially determined cases which later became the subject to the trial.

Of equal importance was Bassiouni’s understanding of the concept of genocide, which undoubtedly influenced the judicial process, and the public. His innovation was the concept of ‘local genocide’.

A discussion about whether what happened in Bosnia is to be considered genocide or not took place in the US Congress. Bassiouni emphasizes that the basis of the Final Report lies in the fact that there is no doubt that crimes against humanity had been committed in Bosnia, but the situation is somewhat different when it comes to genocide, and that the definition issue is of great importance. If the Convention of the United Nations is used as a standard, it is hard to define the events in Bosnia as genocide, but if the ‘progressive’ attitude is taken, i.e. that the genocide may be performed at the local level, the situation may be different:” (after which professor Magnusson quoted what on this occasion Bassiouni stated during the hearing in the US Congress – my remark) “The issue of genocide is complicated by the draft convention in regard to the requirement of the existence of 87

Prof. Milan Blagojevic, PhD specific intention in the way of its implementation, and the question if the convention is interpreted in the way to refer to the entire group or not.

We have, within the Commission, accepted the progressive attitude and said that genocide should not be interpreted in the light of the entire group as it had been done after the Holocaust because it is the form accepted by the Nazis, but it should be observed in a specific context.” (Кjell Magnusson: Genocide as a Concept in Law and Scholarship: a Widening Rift?, available at http://www.ius. bg.ac.rs/crimenjournal/articles/Crimen_001-2013/Broj%20 1-2013%20-%2003%20Kjell%20Magnusson.pdf. Accessed on 21st December 2015) So, it was, as the time will have shown, enough to have the head of the Commission (professor Bassiouni) express his two opinions and to have them accepted by the mentioned Commission, and to have, on the basis of them, altered the objective sense of the crime of genocide. The first opinion actually refers to the concept of a local genocide. This resulted in the second opinion according to which “genocide should not be interpreted in the light of the entire group as it had been done after the Holocaust because it is the form accepted by the Nazis, but it should be observed in a specific 88

Political anatomy of one judgment context ”. After this there only should (or better to say must) have been said to find, by all means, a certain event to impose upon it the aforementioned concept of genocide. The events in Srebrenica in July 1995 served for this purpose, and the institution that did the rest of the job had already been established in the form of the Hague Tribunal.

A sad side of such relation towards the crime of genocide is the fact that its creators want to assign the adjective of progressive attitude to such approach, which is a sort of sophistry, because they want to use the flattering labeling of their opinion as progressive attitude and thus make the attitude legitimate, despite the fact that it twists the objective meaning of the crime of genocide and introduces legal insecurity. Therefore it is not surprising that the professor Kjell Magnusson in the interview with the Swedish newspaper Geteborgsposten in 2014 said that not only “… there was no genocide in BiH, nor in Srebrenica”, but the “use of the notion genocide nowadays devalued crimes committed against the Jews in Europe”.

(According to http://www.rtvbn.com/mobile/ vijest/24049/u-bih-nije-bilo-genocida. The same at http:// www.klix.ba/vijesti/bih/svedski-profesori-negiraju-genocidu-bih-sistematskog-progona-bosnjaka-nije-bilo/140130026.

Accessed on 21st December 2015)

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Prof. Milan Blagojevic, PhD The objective meaning of the crime of genocide is also distorted according to the school of thought indicated by Stephen Karganovic, which claims that the number of victims is basically not important to determine the genocide. In regard to this, Karganovic says in a founded way, “Perhaps reductio ad absurdum is still the most effective way to expose an obviously absurd argument that in the case of a serious crime the number of killed is not important and that therefore it should not be investigated”.

(Stephen Karganovic, Ljubisa Simic: Srebrenica: Dekonstrukcija jednog virtuelnog zlocina, second edition, Belgrade, 2011, p. 13).

The aforementioned is of importance for the following reasons. Namely, reductio ad absurdum may be observed in a legal sense as part of one special technique of logical interpretation of the law, called argumentum ab absurdo.

That argument, which is in the theory of law called also “an assumption of the reasonable legislator” says that the meanings of the legal provisions that would lead to meaningless consequences should be excluded (Dr Nikola Viskovic: Teorija drzave i prava, Zagreb, 2001, p. 258).

It is therefore pointless to say that the crime of genocide exists if any of the actions of its being was conducted “…

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Political anatomy of one judgment against only one person under the condition of the existence of the genocidal intention” (Dr Milos Babic, Dr Ivanka Markovic: Krivicno pravo, Posebni dio, first edition, Banja Luka, 2005, p. 466), i.e., that this act “…will exist even in the case of conducting only one of the actions that constitute the act, e.g. murder of only one person, if committed in the given intention of complete or partial destruction of specific group” (Komentari krivicnih/kaznenih zakona u Bosni i Hercegovini, knjiga I, Sarajevo, 2005, p. 560).

Such understandings lead to meaningless situations in the following way. Let’s imagine that somebody killed one, two or five persons because they belong to a specific national group that is included in the crime of genocide.

Obviously in that case the survival of the protected group cannot be, nor has it been objectively questioned, as a whole or partially. This is due to the fact that murdering these people cannot cause the mentioned consequences by any means. So, it is simply absurd to claim that in the cases like this there was complete or partial destruction of the protected group, and thus a genocide. When this is taken into account, it is obvious that the interpretation and the implementation of the provisions from the being of a crime of genocide must exclude as the absurd meaning the fact that it is enough to kill one man for the existence of that being if there is an intention of the executor to completely or partially destroy the protected group to which the killed person belongs. Otherwise, i.e. if it would be accepted that 91

Prof. Milan Blagojevic, PhD the being of genocide has meaning like that, then there would be a meaningless situation to be criminally responsible and convicted to the maximum sentence not for the action and consequence, but for the content of the thoughts of the executor, whereby those thoughts in the external world would not objectively cause not only complete but not even partial destruction of the protected group as a whole. Therefore, it is clear that when interpreting and implementing the provisions of the being of the crime of genocide we must take into account not only intention of the executor but also the number of the persons killed, and then we must relate that number (of the killed for example) to the overall number of the members of the protected group observed as a whole.

If the number of the killed is not objectively such as to put under question the survival of the group, as a whole or of its part, it is clear that it cannot be a crime of genocide. Only in this way we can ensure an objective assessment of every specific case and if the same is the crime of genocide or not.

Finally, this will disable the politicization of this crime and prevent absurd situations like the one related to the events in Srebrenica in July 1995, which is said to be the crime of genocide, although facts and evidence suggest that there was no genocide in these events.

Having in mind the previously listed reasons the judgment against Dr Radovan Karadzic groundlessly states the following (my italics):

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Political anatomy of one judgment “5672. The Chamber recalls that where part of a protected group is targeted for destruction, such part must be substantial. With regard to the targeted group, which was the Bosnian Muslims in Srebrenica, the Chamber recalls that the Appeals Chamber has found that although the Bosnian Muslim population in Srebrenica constituted a numerically small percentage of the Bosnian Muslim population, the enclave’s seizure was of particular strategic importance due to its geographic proximity to Serbia, its symbolic stature as a refuge for Bosnian Muslims, and the fact that its elimination despite its status as a safe area would be demonstrative of the potential fate of all Bosnian Muslims. The Chamber agrees with this analysis and, accordingly, finds that the Bosnian Muslims in Srebrenica constituted a substantial part of the Bosnian Muslim population.

(3) Conclusion 5673. On the basis of the analysis set out above, the Chamber finds that—with the intent to destroy the Bosnian Muslims in Srebrenica, which constituted a substantial part of the Bosnian Muslim protected group—members of the Bosnian Serb Forces killed thousands of Bosnian Muslim males and caused serious bodily or mental harm to thousands of Bosnian Muslims in Srebrenica. The Chamber therefore

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Prof. Milan Blagojevic, PhD finds that the acts described above constitute genocide within the meaning of Articles 4(2)(a) and 4(2)(b) of the Statute.”

More allegations of the quoted part of the judgment cannot withstand a serious scientific criticism. First of all, the Trial Chamber in this judgment does not have its own view of the notion “significant part” from the being of genocide incrimination. Instead it only takes over what in this regard said the Appeals Chamber in the judgment against the General Radislav Krstic on 19th April 2004. And on that occasion several nonsenses were told. Namely, in that judgment (Paragraphs 15 and 16 relied on by the Trial Chamber in the judgment against Dr Karadzic) it is first admitted that the Muslim population in Srebrenica represents only small percentage of the overall Muslim population in BiH. In this way the truth was said, i.e. that this population (so, not even all Muslims from Srebrenica) does not constitute a significant part compared to the overall Muslim population in BiH. However, after that the Appeals Chamber in the case against the General Krstic quite arbitrarily stated that the Muslim population from Srebrenica, despite the mentioned, presented “significant part” for the strategic importance of Srebrenica due to its proximity to Serbia and for having symbolic importance as a refuge for Muslims, and that its elimination as a protected area would be demonstrative of the potential fate of all Bosnian Muslims. This is an example of the court 94

Political anatomy of one judgment nonsense that would cause a headache to every objective analyst (and the accused if faced with it). Obviously these are “arguments� of force, and not the force of arguments, which is characteristic for the powerful only (according to the Latin proverb Quod licet Iovi, non licet bovi).

In addition, the Chamber in the judgment against Dr Radovan Karadzic (Paragraph 5831, p. 2444 of the judgment) did not take into consideration in a proper way the fact that 25.000 people (women, children and old people) upon their own request were evacuated by the Army of the Republic of Srpska to the territory controlled by the Muslim forces.

This fact is of cardinal importance because the executor of genocide does not make selection among the victims but (as in the case of Muslim crimes against Serbs from the region of Srebrenica in the last war) he kills them all for belonging to a protected group.

The same conclusion on the lack of the genocidal intention is imposed in the case of numerous Muslim soldiers who, after having been captured in the area of Srebrenica in July 1995, were transferred by the Army of the Republic of Srpska to Batkovic near Bijeljina, where, after having been kept in captivity for some time, they were set free. Thus Vinko Pandurevic, the commander of the Zvornik Brigade at the time, stated that in the period from 18th July to 8th August 1995 his Brigade captured 145 Muslim soldiers, all of whom were sent to Batkovic (Vinko Pandurevic: Zivot se brani istinom, Hague 95

Prof. Milan Blagojevic, PhD 2011 – Belgrade 2015, p. 550). If there had been genocide, there would not have been any such case.

When it comes to the number of people who were executed the following should be said. In the events in Srebrenica in July 1995 a war crime against war prisoners was committed. The same crime happened in the case of murder of the Muslim war prisoners in the warehouse in Kravica, no matter it happened as a reaction to the fact that prior to it one of the prisoners snatched the rifle from the Serbian soldier Krsto Dragicevic who was guarding the prisoners and killed him, after which the commander Rade Cuturic tried to get the rifle from the prisoner (by holding the barrel of the rifle while the prisoner was shooting from it) on which occasion he got his hand burned, which is why he had to be taken urgently to the hospital in Bratunac for medical treatment (Paragraph 5228 of the judgment).

War crimes against war prisoners were committed by individuals from the Serbian nation, although among them there were several members of other nations (Croats and Slovenians). All of them should be prosecuted and hold criminally responsible individually, but also due to the mutual agreement directed at killing the war prisoners. However, forensic evidence (that will be discussed later) undoubtedly shows that the number of the executed prisoners was far below the number that is unfoundedly wanted to be imposed by the judgments of the Hague Tribunal, including the judgment 96

Political anatomy of one judgment against Dr Radovan Karadzic. This problem is related to the fact that four things remained secret until today. One of them refers to determining the number of missing Muslim soldiers during the events in July in Srebrenica, the second is related to the Muslim soldiers who died in the attacks of their column on the way to Tuzla and places of their burial, the third is related to the number of Muslim soldiers who during the attacks managed to reach the territory controlled by the Muslim forces, while the fourth secret refers to the work of the International Commission on Missing Persons.

The first question is directly related to the fact that it has never been determined how many people were in Srebrenica and the villages around it at the time of its fall. The cases processed by the Hague Tribunal mention the number of up to 42.000 people, which is very suspicious since it has not been proved by any specific evidence. Moreover, what I will indicate below says that this number was used for manipulation by the Muslim authorities prior to the fall of Srebrenica, which the Hague Tribunal accepted later. Here is a quote from an official act of the President of the Presidency of the Municipality of Srebrenica dated January 1994, whose content confirms the aforementioned. So, this act reads (my italics): „Republic of Bosnia and Herzegovina MUNICIPALITY OF SREBRENICA

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Prof. Milan Blagojevic, PhD Number: 01-05/94 Date: 11/01/1994 INSTITUTE FOR STATISTICS OF THE REPUBLIC OF BiH SARAJEVO DEPARTMENT FOR STATISTICS IN TUZLA TUZLA DISTRICT DEPARTMENT OF DEFENSE TUZLA Upon your act number: 031-01/3 of 07/01/1994 we deliver the requested data: - Number of local population in the Municipality 9791; - Number of dislocated local population within the Municipality 10 756; - Number of displaced population from other Municipalities 16708.

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Political anatomy of one judgment NOTE: The required data are provided for the statistical needs and should not be submitted for review to the international organizations, since they believe the number we manipulate with is 45000 of inhabitants.

PRESIDENT OF THE PRESIDENCY OF THE MUNICIPALITY OF SREBRENICA Salihovic Fahrudin, BVetMed“ Accoording to this document, the actual number of inhabitants was 37.225, but in the communication with the international organizations the different number, by nearly 8.000 higher than the real number of inhabitants, was (ab) used.

The importance of the aforementioned may be seen when related to the number of refugees from Srebrenica after its fall in July 1995. The International Committee of the Red Cross at the beginning of August 1995 registered 35.632 refugees from the Srebrenica enclave, i.e. 1.623 less people than it was provided by the previously mentioned act of the President of the Presidency of the Municipality of Srebrenica.

It has just been said that the actual number of citizens in the mentioned document was increased up to 45.000, so the difference between that number and the number of refugees registered by the International Committee of the Red Cross 99

Prof. Milan Blagojevic, PhD was the basis for the statement of 8.000 missing, i.e. killed Bosniaks.

How the lists of the missing persons after the events in Srebrenica were made, can be understood from the words of professor Milivoje Ivanisevic provided below: „Everyone was allowed to add a missing person to the list, without even the elementary check of the person doing it. The International Committee of the Red Cross should not be criticized for that. The reports of missing persons were often made by individuals who, without any evidence, presented themselves as members of the family, colleagues, fellow-soldiers, neighbours.

This list, with no further procedures or checks, was published and turned into the list of victims of Srebrenica, and later into the list of massacred Muslim civilians.”

(Milivoje Ivanisevic: Srebrenica jul 1995: u traganju za istinom, Belgrade, Hriscanska misao, second edition, 2010, p. 76-78) Hereby, professor Ivanisevic points out that this list contains (my italics): „... many who committed crimes in this area and in whose interest it was to consider them “missing”. They changed 100

Political anatomy of one judgment their names and under different identity resumed with their lies in [Bosna and Herzegovina] or abroad as refugees.“ (Milivoj Ivanisevic: Ibidem) Unfortunately, the exact number of persons from the column who died during the fights with the Army of the Republic of Srpska has not been determined until today, which also allows manipulations in this regard. As this number has not been determined after so many years, it is almost certain that it will not be done in the future, and that leaves the space for the maneuver to treat those who died in this way as missing, which finally results in the statement that they were executed.

However, there are proofs that state on thousands of members of the Muslim military column who died during the break in the fights with the Army of the Republic of Srpska. Thus, the General of the Army of BiH Enver Hadzihasanovic during his testimony in the case against the General Radislav Krstic said that “…it could be claimed with certainty that 2.628 of soldiers and officers, who were members of the 28th Division, died”.

(Available on the Internet portal of the Hague Tribunal, at http://www.icty.org/x/cases/krstic/trans/en/010406ed.htm. Приступ од 01.02.2016. године).

At the trial of Ratko Mladic, the defence expert witness Dusan Pavlovic stated that during the breakout from 101

Prof. Milan Blagojevic, PhD Srebrenica, at least, 4.000 to 5.000 members of the column were killed. (http://www.glassrpske.com/novosti/vijesti_dana/ Vjestak-U-proboju-iz-Srebrenice-poginulo-4000-do-5000pripadnika-ABiH/202031.html. Accessed on 1st February 2016).

Carl Bildt in his book Misija Mira also states that around 4.000 members of the Muslim column died in these fights.

(Carl Bildt: Misija mira, Kragujevac, 1998, p. 103).

The daily newspaper Vecernje novosti of 21st July 2015 provided the statement of one of the survivors from the Muslim column. It was Nuriz Selimovic, clerk for Operations and Training Command of the 28th Brigade. After the Muslim column succeeded to break towards Tuzla he gave a statement to the Command of the 28th Division on 26th July 1995 in Tuzla on which occasion he said: „A great number of people came and crossed the road during the day, they told me that the number of people who were moving cut from the column was between 2.000 and 3.000. It was only then that I found out that bad and disastrous things were happening to our people, that the brigade commander Ibro Duda surrendered, that a few people committed suicide. People gathered in a group of 20 around 102

Political anatomy of one judgment the bomb, and embracing each other committed suicides together… We continued to move examining on our way Krizevacke njive all the way to Parlog. Since then the people in the background started committing massive suicides, showing signs of mental disorders, killing each other… I believe that we lost 4.000 – 5.000 of military-capable men”.

The same newspaper article offered another interesting information. Namely, the article mentioned that the defence expert witness in the proceedings against the Hague indictees in the case of Srebrenica, the Admiral Bosko Antic, “… pointed out to the key role of Muhamed Zilic, Security Chief of the Second Corps of the Army of Bosnia and Herzegovina, in hiding the truth about the accidents in Srebrenica. In fact, all relevant documents of the Second Corps of July 1995 disappeared and were not available to the investigators of war crimes. Why the court officials were not decisive in requesting these documents like they were when they asked for all documents of the Army of the Republic of Srpska from Banja Luka and Belgrade, will remain forever unanswered question.”

(Quoted according to the same newspaper source, available at: //www.novosti.rs/dodatni_sadrzaj/clanci.119. html:558644-Prolaz-kroz-devet-krugova-pakla. Accessed on 1st February 2016)

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Prof. Milan Blagojevic, PhD Finally, regarding the number of members of the Muslim battle column who died during the fights with the Army of the Republic of Srpska it is necessary to emphasize something indicated to by Stephen Karganovic. Namely, this author, referring to the column breakout map of Andy Wilcoxson, in the article entitled Sluzbene tajne Srebrenice indicated: „Most of the alleged ‘secondary’ graves are placed only a kilometer or two from the breakout line. The geographical proximity between the line of breakout and nearby mass graves is obvious. Those burial places were falsely represented as secondary graves to make it possible to add the remains buried in them to the number of the killed victims.

Beside the statements given by the witness-associate Momir Nikolic, who agreed with the Prosecutor’s Office to adjust his statement in return for a more lenient sentence, there is no other material evidence on the alleged digging of the primary graves and their relocation. There is no single satellite image of the activities that allegedly lasted for several days, used heavy equipment and many vehicles, involving more dozens of people. The map also shows that the graves actually related to the places of executions are in the expected positions, near the execution site, and rather far from the road the column was going. All the information entered into the map were taken from the evidence material that the Prosecutor’s Office was using in different cases of the ICTY.” 104

Political anatomy of one judgment (Stephen Karganovic: Sluzbene tajne Srebrenice, quoted from http://www.balkanmagazin.net/novosti-ipolitika/ cid128-68337/sluzbene-tajne-srebrenice. Accessed on 31st January 2016) Similarly, when it comes to the number of the Muslim soldiers who managed to break through the column and reach the territory controlled by the Muslim forces, it will not be possible to determine that number with certainty since the same has not been done in the Hague Tribunal so far. However, it can be indirectly concluded that there were thousands of those people, as seen in the following example. The above mentioned book by Vinko Pandurevic Zivot se brani istinom (p. 468) indicates that the Judge O-Gon Kwon in the pronouncement of sentence in the case of Vinko Pandurevic said the following (my italics): „Pandurevic’ decision to, contrary to the orders of his superiors, open the corridor (for the Muslim battle column that fought its way to Tuzla – my remark) in Baljkovica and thus enables the passage for the column, saved lives of thousands Bosnian Muslims. Even under normal circumstances of the combat operations, such an action would be considered unusual.”

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Prof. Milan Blagojevic, PhD Therefore, the Tribunal itself admits here that there were thousands of soldiers, which reliably indicates not only that but also the lack of the genocide, since such crime implies that its perpetrators have no mercy on any member of the protected group, especially not on those members of the group that use weapons to fight them. Still, none of these is taken into consideration by the Hague Tribunal, not even in the judgment against Dr Karadzic.

Finally, there is only an issue related to the work of the mentioned International Commission on Missing Persons, on whose findings rely the Hague Tribunal in its indictments and judgments concerning the number of executed Muslim soldiers. What commission is this and what has it (been doing) done so far? To answer these questions it is necessary to remind the reader of the fact that the Hague Tribunal in the period 1996-2001 had control over the exhumation of the remains from various graves related to the events around Srebrenica in July 1995, which was confirmed in the Paragraph 5523 of the judgment of the Trial Camber in the case against Dr Radovan Karadzic. At the same time the forensic analysis, as indicated by Stephen Karganovic, provided the following results: „- Only in the case of 442 exhumed persons we can say with certainty that they were the execution victims, since they were blindfolded and with their hands tied up; 106

Political anatomy of one judgment - 627 had injuries caused by the fragments of bullets or metal, which could result from the execution, but also from the fights; - 505 bodies had injuries made by the bullets, which could be the result of execution, but also of the fights; - for 411 bodies we cannot determine the cause of death; - 1583 ‘of the cases’ are only parts of the body, and for 92,4% of them the forensic experts of the ICTY concluded that it was not possible to determine the cause of death.“ (Stephen Karganovic, Aleksandar Pavic: Srebrenica 1995 – 2015, Belgrade, June 2015, p. 16) Leaving aside 1583 of the so-called cases that are actually only parts of the body for which, in 92,4% of them, it is not possible to determine the cause of death, the remaining number contains a small number of those who were executed (442). This was confirmed by the expert witness Dusan Dunjic during his testimony in the case against Dr Karadzic, when he determined that there were between 400 and 500 bodies found with ligatures, which is why those people could be considered the execution victims (Paragraph 5552 of the judgment).

The given results are also confirmed by the research conducted by Dr Ljubisa Simic, presented in its paper entitled “Analiza autopsijskih izvestaja masovnih grobnica 107

Prof. Milan Blagojevic, PhD Srebrenice”, published in the Proceedings of the International Scientific Conference held at the Russian Academy of Sciences in Moscow on 22nd and 23rd April 2009. I chose a lenghty excerpt from this paper, prior to which I need to say that the subject of Dr Simic’s research were the results of forensic reports of the experts of the Hague Tribunal composed after those experts in the period 1995-2002 in the area of Podrinje had digged and processed more hundreds of human remains which are assumed to be related to the events that happened in Srebrenica. So, Dr Simic in regard to this presents the following results of his research in the final part of his paper (my italics): „The reviewed material, including the entire fund of post-mortem reports that were at the disposal of the Hague Tribunal in 2008, contains in total 3.568 reports, each of which had been processed for this analysis. There is a reason why we use a notion “3.568 reports” and not “3.568 bodies”.

The reason is obvious: one report does not imply one body.

As it could be observed during the previous presentation, there are more or less complete bodies, incomplete bodies, fragments of the bodies, and 44,4 % of the overall reports refers to only one part of the body, which sometimes includes only one bone. The remains to which a high percentage of these reports refers to do not allow any conclusions to be made regarding the way and cause of death, which makes 108

Political anatomy of one judgment them unusable for determining any forensic facts. If we consider that human body consists of more than 200 bones, it is clear why there cannot be a parallel drawn between one forensic report and one body. This certainly points to the fact that the number of bodies, i.e. killed persons, is far less than the number of reports. ‌On the basis of the analyzed autopsy findings and performed classification of their content, it would be possible to professionally responsible make the following conclusions regarding the destiny of persons whom this material refers to.

1. The first group consisted of 442 bodies that were blindfolded or had ligatures on their hands, which indicates that those persons were executed.

2. Injuries of bullets were found at 655 bodies and on the basis of only this fact it was not possible to specify if those persons were executed or they succumbed to injuries got during the combat, or they died due to some other reason, for example suicide.

3. For a certain number of victims (477) we can say, with a substantial degree of professional reliability, that they were not executed since the presence of shrapnels and other metal fragments that did not originate from a bullet and did not match the theory of execution was determined with them.

That pattern of injuries indicated death during the military

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Prof. Milan Blagojevic, PhD actions, and not the manner in which the execution was conducted.

4. For 411 bodies it was not possible to determine if they suffered the execution or not, because the bodies were incomplete and the cause of death could not have been determined. The bodies which showed no signs of missiles and thus lacked the cause of the violent death to be determined, also belonged to this group.

5. A significant percentage of reports, total of 1.583 (out of 3.568 reports, whereby the difference of 1.985 represented the sum of the previously mentioned numbers 442, 655, 477 and 411 – my remark) contained only a few bones. Once we know that a human body has more than 200 bones, then it is clear that such reports could not have been used as a reliable basis for any conclusions. This is confirmed by the fact that, officially, the forensic experts of the Tribunal did not determine the cause of death in 92,4% of the cases. “ (Ljubisa Simic: Analiza autopsijskih izvestaja masovnih grobnica Srebrenice, published in the Proceedings under the title Delatnost Medjunarodnog tribunala za bivsu Jugoslaviju: Sadrzaj, rezultati, efikasnost, by the Fund “Istorijski projekat Srebrenica”, Belgrade – Moscow, 2010, p. 276-277. It is the Proceedings of the International Scientific Conference held at the Russian Academy of Sciences in Moscow on 22nd and 23rd April 2009.)

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Political anatomy of one judgment The provided results obtained by the forensic experts of the Hague Tribunal, known even before they were disclosed in a way Dr Ljubisa Simic did it, can be used to explain not only why the International Commission on Missing Persons was established, but also why it worked the way it did.

Namely, when the previously quoted results are taken into consideration it becomes clear that they could not be used to reach the projected number of more than 8.000 allegedly executed Bosniaks from Srebrenica. However, since the projected number must have been reached by all means, the mentioned Commission had been established. This was done, not accidentally, at the initiative of the then USA President Bill Clinton. Stephen Karganovic realized the essence of this enterprise, which is why I will provide below the corresponding excerpts from his explanation of this problem (my italics): “The poor results of the forensic experts of the Prosecutor’s Office between 1996 and 2001 threatened to seriously violate the credibility of Srebrenica’s narrative, but with the help of the witness-associate Momir Nikolic the puzzle of the missing victims of the execution was finally being resolved.

The Missing Persons Institute of BiH and the International Commission on Missing Persons in Tuzla, also known as ICMP, started working hard to document 111

Prof. Milan Blagojevic, PhD statements given by Nikolic. Both organizations firmly hold to the official line. The Institute is under the control of Amor Masovic, a clerk-veteran of the Sarajevo Government of Alija Izetbegovic from the time of the war. ICMP was established in 1996 at the initiative of the President of the USA, and its director is allocated by the State Department.

According to the London daily newspaper The Financial Times of 11th December 2007, 93% of ICMP staff consists of clerks of Bosniak nationality.

The result of the operative symbiosis of these two “neutral” teams was to move the focus of further exhumations from the processed places related to the execution to other places with rich findings of human remains. That was the route of the column consisting of 12.000 to 15.000 members of the 28th Division and civilians who armed walked through 60 km of the Serbian territory towards Tuzla, after the fall of Srebrenica in July 1995. No one informed the public that the area, where those teams worked, was the site of bitter fights between the armed military from “demilitarized” Srebrenica and the units of the Army of the Republic of Srpska. Nor did anyone mention serious human losses on both sides…

Mass abuse and false presentation of the remains exhumed in the area of military actions is one of the biggest moral scandals and key component of the Srebrenica deception. No one is allowed to present the burial procedures in the Memorial Centre in Potocari, under the excuse that 112

Political anatomy of one judgment these are the religious rituals which exclude all non-Muslims.

Parts of human bodies from the graves that are not related to the execution are used as a source of material for mass burials that are performed each year in July. …

In addition, the Islamic laws prescribe that a body cannot be buried under the religious ceremony unless it consists of, at least, three-quarters. Are these laws followed in Potocari or the most of coffins contain only a few bones? The right answer to this question will probably never be known…

The vultures’ harvest of the human limbs along the motion road of the 28th Division column allows another impressive illusion of Srebrenica. Those remains are allegedly ‘identified’ in an inaccessbile laboratory of ICMP in Tuzla….

However, so far the public has seen nothing but the number of around 6.000 allegedly identified victims, without any list with individual names. Supported by the Hague Tribunal, the laboratory refers to the right of the deceased and their relatives to privacy and therefore refuses to submit to the defense the samples without which it is impossible to verify the results of the alleged identifications.”

(Stephen Karganovic: Sluzbene tajne Srebrenice, quoted from http://www.balkanmagazin.net/novosti-ipolitika/ cid128-68337/sluzbene-tajne-srebrenice. Accessed on 31st January 2016)

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Prof. Milan Blagojevic, PhD So, the work of this Commission is rather secret, and it cannot be examined by anyone. That is not allowed even for the purpose of defending the persons accused before the Hague Tribunal. To make it more absurd, not even the Tribunal is allowed an insight into its work, nor does the Tribunal control what the Commission presents to it. Regarding this, it is specifically indicative that the Tribunal, although aware that there is no valid legal foundation for such a thing, makes its conclusions on the number of the executed (including in the case against Dr Karadzic) persistently repeating, for a common man attractive terms, such as the term “based on the DNA analysis”. The Trial Chamber did this in the Paragraphs 5558 – 5568 of the judgment. Thus the Tribunal, after the introductory explanations on the establishment of this Commission, in the Paragraph 5562 of the judgment informs us on the manner of pairing DNA profiles taken from skeletal remains with the DNA profiles taken from the family members.

As the judgment further explains, in order to obtain positive result of pairing the matching of DNA profiles must reach at least 99,95%. After descriptions similar to the previously given ones, the Trial Chamber in the judgment (Paragraph 5568) states that this Commission is “…reputable, impartial and reliable institution…” and that the Chamber is satisfied with the propriety and reliability of its methodology, and the reliability of its DNA analyses.

The finding of the Prosecution expert witness Dusan Janc relies on the material of this Commission, which is stated in 114

Political anatomy of one judgment the Paragraphs 5583 – 5599 of the Trial Chamber judgment, the finding of which is used as the basis by the Trial Chamber to “determine” the total number of the executed people (Paragraph 5590 of the judgment). It is noticeable from this part of the judgment that the expert witness Janc used the DNA results of the exhumed remains obtained by the mentioned Commission (which the Defense of any of the accused nor any organ of the Republic of Srpska could not have had the insight into) to arrive at “…5.977 as the total number of individuals identified in Srebrenica-related gravesites…” (Paragraph 5589 of the judgment). The Defense rightfully pointed out that Janc in his report incorrectly considered that all exhumed bodies were victims of the execution (Paragraph 5591 of the judgment). The Defense also rightfully emphasized that the gravesites contain remains of the persons who died or were killed in events before the events that happened in Srebrenica in July 1995, as well as the bodies of the soldiers who died in the combat, but that objection of the Defense, confirmed by the report of the expert witness Dusan Dunjic, the Trial Chamber also unfoundedly rejected.

All this, and above all, the findings of the aforementioned Commission which the expert witnesses of the Prosecution relied on, should have served to the Trial Chamber to primarily present its statement on the thousands of allegedly executed Muslim soldiers, from which later emerged the statement on the alleged genocide. Still, since the Trial Chamber cannot prove something that Dr Radovan Karadzic did not do, 115

Prof. Milan Blagojevic, PhD the Chamber must use speculations. So, for example, the Paragraph 5811 of the statement reads: „5811. The Chamber also finds that the Accused adopted and embraced the expansion of the plan to entail the killing the Bosnian Muslim men and boys in Srebrenica during his conversation with Deronjić on the evening of 13 July. Given the Accused’s position as RS President and Supreme Commander, as well as the evidence demonstrating the continuous flow of information he was seeking and receiving from the ground from many different sources the Chamber considers that the Accused must have known about the killing aspect of the plan to eliminate at some point prior to his conversation with Deronjić in the evening of 13 July.“ Therefore, the Trial Chamber admits that it finds (without any explanation how) that Dr Karadzic during his conversation with Miroslav Deronjic (civilian commissioner for Srebrenica) adopted the alleged plan, but it does not provide any explanation (nor evidence) for the way in which it was adopted, and the plan, according to the Trial Chamber, resulted in killing Muslim men. As we can see, these are plain assertions that have not been explained nor supported by any legally valid evidence in the judgment. Or, in the quoted part of the judgment the Trial Chamber says that it considers that Dr Karadzic must have known about the killing plan, 116

Political anatomy of one judgment given his position as the President of the Republic of Srpska and Supreme Commander, as well as the evidence (no explanation of the evidence) demonstrating the continuous flow of information (no explanation of the information or their content) he was receiving from many different sources (no explanation what sources). In other words, the Council in this regard misses to indicate what evidence Dr Karadzic could have used to find out about the behaviour of individuals at the site, and what information, or what content of the same, might have helped him discover that certain individuals at the site had decided to kill the war prisoners. I emphasize all this because of the dissenting opinion of the Judge Prisca Matimba Nyambe in the case against the General Zdravko Tolimir, on the basis of which it was clear that the killing of the Muslim war prisoners was performed by small groups of individuals who acted secretly, without anyone’s approval, which will be further discussed below.

But, before that, and in regard to the work of the International Commission on Missing Persons, there is one more thing that should be pointed out. Namely, the reference of the Hague Tribunal to the DNA findings of that Commission as the “evidence� of the thousands of allegedly executed Muslim soldiers is an irrationality which deserves no explanation, since even an amateur understands that taking DNA sample from the live person and its comparison to the DNA sample of the deceased person (and this is the mentioned analysis, the term of which is so often used by 117

Prof. Milan Blagojevic, PhD the Tribunal) can only help to identify the deceased person.

Still, the DNA analysis cannot answer the question of the way in which the person died (in the combat, by being executed or in some other way), which is the key forensic question in this case. Considering the subject of this paper, below I pass the saying of Johnatan Rooper regarding the access to documents (evidence) of the mentioned Commission at the trial of Dr Karadzic. Johnatan Rooper said the following (my italics): “Despite the fact that the evidence based on DNA had a crucial role in confirming accusations at the trials related to Srebrenica before the International Criminal Tribunal for the former Yugoslavia, it has been confirmed now that the International Commission on Missing Persons had never submitted to that Tribunal any evidence based on the DNA that it allegedly had collected. The Defense of Radovan Karadzic was not allowed the access to this evidence based on the DNA, and the Prosecutor of the International Tribunal in Hague, Hildegard Uertz-Retzlaff, stated before the Tribunal that “the International Commission on Missing Persons has not submitted DNA to us either�. This is extremely important confession that the International Criminal Tribunal during its decision-making process has not seen nor examined the validity of evidence based on the DNA presented by the interested party, the International 118

Political anatomy of one judgment Commission on Missing Persons governed by the Bosnian Muslims.”

(Johnatan Rooper: Poigravanje brojkama, published in the monograph of the Fund “Istorijski projekat Srebrenica”: Masakr u Srebrenici, dokazi, kontekst, politika, edited by Edward S. Herman, Belgrade, 2011, p.119) These are serious violations of procedural rights, although the exercise of these rights is used to determine the truth about whether the genocide was conducted over the Muslim population in Srebrenica and if there was any joint enterprise of the state leadership of the Republic of Srpska in this regard. Unfortunately, the true answers on these questions were not given in the judgment of the Trial Chamber against Dr Radovan Karadzic.

However, although the truth could not have been found there, it is to be found in the dissenting opinion of the lady Judge Prisca Matimba Nyambe, who was a member of the Appeals Trial in the case against the General Zdravko Tolimir.

Even though her explanation refers to the case against the General Tolimir, the conclusions of the Judge Nyambe regarding the lack of genocide and a joint criminal enterprise may be mutatis mutandis applied in the case of Dr Radovan Karadzic as well. So, the Judge Prisca Matimba Nyambe in her dissenting opinion of 12th December 2012 in regard to the above key issues said the following (my italics): 119

Prof. Milan Blagojevic, PhD “85. Contrary to the Majority holdings, I dissent from the holding that a JCE to Forcibly Remove the Bosnian Muslim population existed among the Bosnian Serb Forces and RS leadership. I do not find that there was a common purpose for such criminal enterprise, rather, I find that the populations of the enclaves sought to leave and, with assistance of the ABiH and Zepa War Presidency, negotiated an evacuation of the people based on war-time necessity. Consequently, I cannot find that any “forcible transfer” contributed to a finding of genocide or conspiracy to commit genocide. Nor can I find, based on the totality of evidence on the record, that the Bosnian Muslim civilians of the Srebrenica and Zepa enclaves were persecuted by Bosnian Serb Forces with the requisite specific intent. As I have not found the underlying crime of Forcible Transfer or a JCE to Forcibly Remove the populations of the enclaves, I cannot find the Accused criminally responsible for these movements under any mode of liability.

86. .....I dissent to the Majority holding that a JCE to Murder was ‘a highly organized murder operation developed and shared among and between numerous high-ranking VRS officers and implemented by countless numbers of the Bosnian Serb Forces’. To my mind, the ‘spontaneity’ of that JCE, one that called upon the volunteers to carry forth the murders, also leads to the reasonable conclusion it arose out of a small group of individuals operating in an unauthorized and secreted manner.

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Political anatomy of one judgment 87. Moreover, I find there is neither a showing of a significant contribution to the JCE to Murder by the Accused nor the requisite intent of JCE I “to perpetrate a crime” with the shared intent of others. Therefore, I cannot find that the Accused was a member of the JCE to Murder, and therefore find that he is not liable for actions within the common purpose of the JCE to Murder. Since the Accused was not a member of the JCE to Murder, the question of his responsibility for crimes outside the common purpose of the JCE that were the natural and foreseeable consequences of it does not arise. In this regard, I do not find that the evidence supports that the Accused otherwise directly committed, planned, instigated, ordered, or otherwise aided and abetted in the planning, preparation and execution of these crimes.

88. With regard to Count I (genocide), I have found that the Accused did not have the requisite intent for genocide.

In addition, since I have found that the Accused was not responsible for murder and that forcible transfer from Srebrenica and Zepa and the associated ill-treatment of the civilian population did not take place, there is no basis for finding that the Accused did any of the underlying acts of Genocide as set forth in Article 4(2) of the Statute….

89. Since the Accused did not have the requisite intent for genocide, he cannot be found to be criminally responsible for conspiracy to commit genocide …

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Prof. Milan Blagojevic, PhD 90. The Accused is not responsible for murder under any mode of liability. It therefore follows that he should be acquitted of the charges of murder as a crime against humanity and as a violation of the laws or customs of war‌ . Since the Accused is not responsible for murder, he cannot be held responsible for extermination as a crime against humanity ‌ because extermination is murder on massive scale.�

The only thing to be added to the above quoted at the end of this part of monograph is the fact that here, in the judgment of the Trial Chamber, there is no valid evidence that Dr Radovan Karadzic (nor other members of the state leadership of the Republic of Srpska) committed, ordered or in any other way participated in the murder of any of the captured Muslim soldiers or to be, in any way, related to the murders of those war prisoners committed by, as the Judge Nyambe argumented, a small group of individuals operating in an unauthorized and secreted manner.

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V. Final word In this part of the monograph it is necessary to state the essence of the political background of the judgment against Dr Radovan Karadzic. To understand this background properly it is essential to say something about the manner in which the judgments, including the judgment that was subject to this paper, are used not only by the Hague Tribunal but also by the Court of BiH. Guided by an old Latin proverb Exemplis discimus (we learn by examples) to explain the above mentioned manner I will use an example, that is, unfortunately, quite frequent in the practice.

In the judgment of the Court of BiH, issued on 16th October 2009 in the case no. X-KR-07/386, by which a person of Serbian nationality was found guilty of a crime of the alleged genocide in Srebrenica, the Trial Chamber in providing “arguments� to prove their opinion that it was a crime committed in the specific case, had not used their own reasons. Instead, it stated the following:

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Prof. Milan Blagojevic, PhD “224. The International Court of Justice concluded that the acts committed by the members of the VRS after the fall of Srebrenica in July 1995 were committed with the specific intent to partially destroy a group of the Muslims of Bosnia and Herzegovina as such, and that therefore these acts are to be considered genocide conducted by the members of the VRS in and around Srebrenica in the period that started around 13th July 1995.

225. The Trial Chamber of the ICTY in the case Krstic found that ‘the intent to kill all military capable Bosnian Muslims in Srebrenica represented the intent to partially destroy the Bosnian Muslims as a group under Article 4, which is therefore to be defined as genocide’. The Trial Chamber understands that there was no military nor security reason for those murders and that [F]orces of Bosnian Serbs must have been aware of the catastrophic consequences of disappearing two or three generations of men needed for survival of the traditional patriarchal community… The Bosnian Serb Forces knew, when they decided to kill all military capable men, that those murders along with the forcible transfer of women, children and the old people, would inevitably cause the physical disappearance of the Bosnian Muslim population in Srebrenica.”

I quoted this part of the mentioned judgment for two reasons. First, it is easy to notice the absence of the critical 124

Political anatomy of one judgment approach of the Court of BiH towards anything provided by the Hague Tribunal, since the opinion of the Court of BiH on the legal qualification of the act in this specific case is not based on their own views, but on the views of the Hague Tribunal presented in this regard. That is an undeniable evidence of a specific indoctrination within the judicial system. It is true that the quoted judgment primarily calls upon the International Court of Justice, but it is forgotten that the Hague Tribunal was the first to discuss (decide on) this in the case against the General Radislav Krstic, after which the International Court of Justice only took over the unfounded conclusion of the Hague Tribunal, without any critical approach, in regard to both, number of the killed war prisoners and the legal qualification of the act.

Accepting the views of the Hague Tribunal as its own, the Court of BiH also uncritically accepted the conclusion of the Tribunal on the alleged intent of the Serbian Forces to “kill all military capable men”, although this is not true. Namely, there was no such intent nor did it happen as a consequence, which is the best confirmed by the arguments of the Judge Prisca Matimba Nyambe, as well as by the material evidence that were previously discussed.

As a result, the Court of BiH in its judgment unfoundedly accepts the “argument” of the Hague Tribunal, the intent of which is to suggest the alleged physical disappearance of the Muslim population in Srebrenica. How unfounded (in both, legal and moral sense) such treatment is, can be best 125

Prof. Milan Blagojevic, PhD confirmed by the facts which existed at the time of rendering the quoted judgment and still do, and which state that the Muslim population did not disappear from Srebrenica, nor will ever, for it still living and will continue to live there.

However, the Court of BiH does not want to accept the indisputable facts just because they were not accepted by the Hague Tribunal.

It is in the examples like this one where we can see the consequences that the Hague Tribunal has on a part of the local judiciary system, and which, as previously explained, are seen in specific indoctrination within the judiciary system by the views of the Hague Tribunal, even when they do not match the truth. The same applies to the practice of the Court of BiH regarding the incrimination of the crimes against humanity. Namely, in the work of that Court we can notice a long practice of unconstitutional retroactive implementation of the mentioned incrimination on the events that happened in the past war in BiH, despite the fact that crimes against humanity were not prescribed as criminal offense by the domestic legislation until 2003, when the High Representative imposed the Criminal Code of BiH and thus prescribed the mentioned criminal offense. However, in spite of the unconstitutionality of such a practice, it is used by the Prosecutor’s Office of BiH and the Court of BiH in the proceedings against the former members of the Ministry of Internal Affairs and the Army of the Republic of Srpska. The reason for this is to 126

Political anatomy of one judgment be found in the fact that only by using this incrimination it can be stated that a certain act (e.g. murder or beating) was committed within the alleged wide and systematic attack of the Police and the Army of the Republic of Srpska against the Muslim population, regardless of the fact that in this specific case the evidence does not confirm the existence of such attack. And such attack is easy to be incorporated into the indictments and judgments since it can be assigned to a state or some other organization which is at that time exercising the authority in a specific territory. So, when such formulations are used, it means that for them the Republic of Srpska is to be accused. Thus, all the trials and numerous judgments of the Court of BiH are turned not into the trial of individual persons, but into the trial against the Republic of Srpska which, to make things even worse, is not allowed in these proceedings to deny, through its representatives, the groundless of allegations given in the indictments of the Prosecutor’s Office of BiH. I pointed out all previously mentioned due to the fact that the same applies to the judgment against Dr Radovan Karadzic. Therefore, that judgment was not only the judgment against him, but also the judgment against the Serbian people and the Republic of Srpska, which talks about its political nature. Namely, having in mind everything stated in the previous parts of the monograph, the goal of that judgment is to perform a specific stigmatization of the Republic of Srpska and the Serbian people. This is done by proclaiming 127

Prof. Milan Blagojevic, PhD a legitimate aspiration of a constituent people to establish the Republic of Srpska and thus organize itself in the state and political sense, forced on by the other two peoples, as the alleged joint criminal enterprise in this and many other judgments of the Hague Tribunal.

So, the observation of Milo Lompar regarding “the ideal example of a blame ideologization” can be applied to this case as well, whereby Lompar, in dealing with the issue of instrumentalization of Srebrenica, states the following: “Just like the Bosnian Muslims as a nation cannot be responsible for the crimes committed in the Serbian settlements around Srebrenica, in the same way the Serbian people cannot be held guilty of the crimes in Srebrenica, nor – if we put things up in the general parallel, being aware constantly of the important peculiarities of each case – can the Croatian people be found guilty of Jasenovac, just like the German people cannot be blamed for Auschwitz, nor the American for numerous crimes before and after 1945. No nation is to be blamed.”

(Milo Lompar: Duh samoporicanja, Prilog kritici srpske kulturne politike, U senci tudjinske vlasti, third amended edition, Novi Sad, 2012, p. 490-491)

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Political anatomy of one judgment Unfortunately, the judgments, like the one against Dr Radovan Karadzic, are completely different than the true observations of Milo Lompar. Such judgments contribute to achieving two goals. First of them is correctly noticed, although for other reasons, by Mirjana Vasovic referring to the regional hatred. In this regard she says: “To an objective observer, namely, it is simply striking to observe that the hatred, especially the one against the Serbian people, is getting stronger for twenty years, instead, as it would be expected and as it is natural, to gradually diminish. Moreover, new reasons are constantly found and ‘conclusions’ made that raise it up (like for example in Srebrenica where, once a year, the buried bodies are ritually multiplied). … In fact, the degree of animosity towards the Serbian people in the region reached the point after which we can be absolutely calm. There is no such crime – committed, assigned or intended – that may justify this kind and this level of hatred. Still, if we take a close look, it is not a metaphysical hatred. It has its specific prehistory (historical hatreds never get old), just like it has rather determined, current role and instrumentality. In short, it is used to consolidate the unfinished states, to homogenize the nations with insecure identities and to legitimize the shaken government.”

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Prof. Milan Blagojevic, PhD (Mirjana Vasovic: Regionalna mrznja, published on 27th August 2015 at http://www.politika.rs/rubrike/Komentari/ Regionalna-mrznja.sr.html) There are two things from the quoted that I will point out on this occasion. First refers to the fact that, unfortunately, the judgments, like the one against Dr Radovan Karadzic, only contribute to deepening the gap between the Serbs and the Muslims, which is a great tragedy considering their closeness that is rooted in the distant past. The second thing is related to the intent of such judgments, no matter if we admit it or not, to deconsolidate the Republic of Srpska, which is the essence of their political anatomy. This is intended to be done in a way which, although not related to the subject of this monograph, Milo Lompar calls the creation of the absolute opportunity logic. Lompar explains the essence of this process in the following way: „...instead of the logic of individuality and uniqueness, logic of loner in the spirit, sometimes in the world as well, opposing to what forcibly governs the public discourse, it is necessary to interiorize the logic of the absolute opportunity. On this path there are no any intellectual relations to the truth. This is a track in which the spirit denies itself. Hence in the foundation of the desirable cultural pattern lies the spirit of self-denial as the double spirit. It is the spirit that denies itself, because it 130

Political anatomy of one judgment denies the need of a spirit to review the public discourse.

Moreover, it is the spirit that by establishing the cultural pattern of a community, inevitably achieves its essential self-denial. That is the cultural pattern that arises within the positive myth according to which Europe has no alternative.�

(Milo Lompar: Ibidem, p. 19) Just a moment ago we saw how the Court of BiH uses this logic, when it uncritically takes over in its judgments everything said regarding certain issue by the Hague Tribunal. It takes only one step from such behaviour of institutions to the same behaviour of individuals in their every-day lives. And when the individuals start accepting certain views in an uncritical way just because the same are provided by specific institutions, then that will certainly take them to the indoctrination and self-denial, which the Serbian nation is particularly prone to. For such reasons it has been emphasized in the introductory part of this monograph that such judgments are intended to convince the population of the Republic of Srpska to alter its attitude towards its own state, in a way to delegitimize it in the masses, which is the essence of mental desubstantialization of any state. This is an attempt to make easy the work of the numerous forces (in BiH and abroad) that desire to destroy the Republic of Srpska by all means. In fact, they need judgments like this one to 131

Prof. Milan Blagojevic, PhD reach their final political goal, i.e. to refer to such judgments and thus obtain the disappearance of the Republic of Srpska in a peaceful manner, although they will not hesitate to use the force at a particular moment to achieve it, if they realize that the attempt of its mental desubstantialization is not successful. Therefore, by pointing out the untruths presented in the judgment against Dr Radovan Karadzic, I tried to use this monograph to explain how groundless it is to have the self-denying spirit in our nation or to turn our back on the Republic of Srpska, since it does not deserve it in any way or for any reason.

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BIBLIOGRAPHY

Books and articles (The list is made in accordance with the order in which the literature has been used in the monograph) 1. Prof. dr Dragomir Keserovic, Ranko Todic, Momcilo Tepic: Vojna situacija u Bosanskoj Krajini – 1990 – 1995 analiza situacije – opstina Prijedor, Studija Prijedor, Banja Luka, February – March 2014. The Study has not been published yet and can be found in the archive of the Republic Center for Research of War, War Crimes and Missing Persons of the Republic of Srpska.

2. Dejan Vanjek: Predstavnici i pripadnici konstitutivnih naroda – pitanje konstitutivnosti i legitimiteta, http://www. idpi.ba/konstitutivnost-legitimitet/ 3. Ivo Andric: Pismo iz 1920. godine, Beoknjiga, Beograd, 2013.

4. Dobrica Cosic: Bosanski rat, JP “Sluzbeni glasnik”, Beograd, 2012.

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Prof. Milan Blagojevic, PhD 6. Zeljko Vujadinovic: Medjunarodni krivicni sud za bivsu Jugoslaviju kao izraz svog vremena, Politeia, scientific journal of the Faculty of Political Science in Banja Luka, no. 1, Banja Luka, 2011.

7. Matthew Parish: Sudska politika i ratovi na Balkanu, journal Strani pravni zivot, no. 2/2013, Belgrade, 2013.

8. Milivoje Ivanisevic: Knjiga mrtvih Srebrenice i Birca 1992 – 1995. (Available at the Internet address http://www.serbvictims.org/).

9. Raphael Lemkin: Axis Rule in Occupied Europe Laws of Occupation, Analysis of Government, Proposals for Redress, Washington, Carnegie Endowment for World Peace, 1944.

10. George Bogdanich: Uvod u osvajanje Srebrenice. Published in the monograph Masakr u Srebrenici, dokazi, kontekst, politika, prepared by Edward S. Herman, publisher Foundation “Istorijski projekat Srebrenica” Holland, Belgrade, 2011.

11. Kjell Magnusson: Pojam genocida u pravu i nauci: Jaz koji se siri?, http://www.ius.bg.ac.rs/crimenjournal/articles/Crimen_001-2013/Broj%201-2013%20-%2003%20 Kjell%20Magnusson.pdf.

12. Stephen Karganovic, Ljubisa Simic: Srebrenica: Dekonstrukcija jednog virtuelnog zlocina, second edition, Belgrade, 2011.

13. Dr Nikola Viskovic: Teorija drzave i prava, Zagreb, 2001.

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Political anatomy of one judgment 14. Dr Milos Babic, Dr Ivanka Markovic: Krivicno pravo, Posebni dio, first edition, Banja Luka, 2005.

15. Komentari krivicnih/kaznenih zakona u Bosni i Hercegovini, book I, Sarajevo, 2005.

16. Vinko Pandurevic: Zivot se brani istinom, Hague 2011 – Belgrade 2015.

17. Milivoje Ivanisevic: Srebrenica jul 1995: u traganju za istinom, Belgrade, Hriscanska misao, second edition, 2010.

18. Carl Bildt: Misija mira, Kragujevac, 1998.

19. Stephen Karganovic: Sluzbene tajne Srebrenice, http:// www.balkanmagazin.net/novosti-ipolitika/cid128-68337/ sluzbene-tajne-srebrenice.

20. Stephen Karganovic, Aleksandar Pavic: Srebrenica 1995 – 2015, Belgrade, June 2015.

21. Ljubisa Simic: Analiza autopsijskih izvestaja masovnih grobnica Srebrenice, published in the Proceedings under the title Delatnost Medjunarodnog tribunala za bivsu Jugoslaviju: Sadrzaj, rezultati, efikasnost, publisher Foundation “Istorijski projekat Srebrenica”, Belgrade – Moscow, 2010.

22. Johnatan Rooper: Poigravanje brojkama, published in the monograph of Foundation “Istorijski projekat Srebrenica: Masakr u Srebrenici, dokazi, kontekst, politika,” edited by Edward S. Herman, Belgrade, 2011.

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Prof. Milan Blagojevic, PhD 23. Milo Lompar: Duh samoporicanja, Prilog kritici srpske kutlurne politike, U senci tudjinske vlasti, third amended edition, Novi Sad, 2012.

24. Mirjana Vasovic: Regionalna mrznja, http://www.politika.rs/rubrike/Komentari/Regionalna-mrznja.sr.html.

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CIP - Каталогизација у публикацији Народна и универзитетска библиотека Републике Српске, Бања Лука 343.4(497.6) 341.48/.49 БЛАГОЈЕВИЋ, Милан, 1965Политичка анатомија једне пресуде : (Ментална десупстанцијализација Републике Српске) / Милан Благојевић; [превод на енглески Лидија Дангубић]. - Бања Лука : Републички центар за истраживање рата, ратних злочина и тражење несталих лица, 2016 (Бања Лука: ЈУ Службени гласник Републике Српске). - 276 стр.; 21 cm Насл. стр. приштампаног превода: Political Anatomy of one Judgment (Mental desubstantialization of the Republic of Srpska). Тираж 300. - Библиографија: стр. 137-140.

ISBN 978-99955-622-6-7 COBISS.RS-ID 5843224

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