International Criminal Tribunal for the Former Yugoslavia

Case No IT-95-14

  1. 1 Monday, 30th June 1997

    2 (10.30 am)

    3 (In open session)

    4 JUDGE JORDA: Please be seated. We ask the usher to have

    5 the accused brought in, please.

    6 (Accused enters court)

    7 JUDGE JORDA: I would first like to know -- actually first

    8 I would like to say good morning to everybody on my own

    9 behalf and on behalf of my colleagues. I would like to

    10 know whether everybody hears properly. I know there

    11 was a test done a few minutes ago so there shouldn't be

    12 any problems. Do my colleagues hear me? Is the

    13 Prosecution hearing? Does the Defence hear?

    14 Mr. Blaskic, do you hear in your own language?

    15 GENERAL BLASKIC: Good morning, your Honour. I hear you

    16 fine.

    17 JUDGE JORDA: I am the one who didn't hear. Of course I

    18 didn't hear. I didn't have my headset on. Now we

    19 will resume our work, picking up where we left off last

    20 week. I can turn to the Prosecutor and give you the

    21 floor.

    22 MR. HARMON: Good morning, Mr. President and your Honours.

    23 We will proceed. Mr. Cayley will examine the next

    24 witness.

    25 MR. CAYLEY: Good morning, Mr. President, your Honours,

  2. 1 learned counsel. The next witness that the Prosecutor

    2 would like to call, with your permission, and if the

    3 Defence has no procedural objections, is Dr. Zoran Pajic.

    4 JUDGE JORDA: The Defence has no objection. The judges

    5 have no objection.

    6 (Witness enters court)

    7 JUDGE JORDA: Good morning, sir. Do you hear me?

    8 A. Yes, I do.

    9 JUDGE JORDA: I think first you have to take the solemn

    10 declaration that was given to you, or at least I hope it

    11 was given to you by the usher. Will you read it?

    12 Dr. Zoran Pajic (sworn)

    13 Examined by Mr. Cayley

    14 JUDGE JORDA: Thank you. You are a prosecution witness

    15 and it is the Prosecutor who will be asking you

    16 questions. I give you the floor.

    17 MR. CAYLEY: Thank you, Mr. President. Could you please

    18 give the court your full name?

    19 A. My name is Zoran Pajic. I'm sorry. I will speak in

    20 my own language. (In interpretation): My name is

    21 Zoran Pajic.

    22 Q. Could you please give the court firstly your academic

    23 qualifications?

    24 A. I graduated from the Faculty of Law. I took a Master's

    25 Degree in Law, then acquired a Doctorate of Law, and

  3. 1 additionally I have a special degree in psychology and

    2 pedagogy in higher education.

    3 Q. Could you please give the court some background about

    4 yourself, professional experience, employment,

    5 professional consultancy work, university teaching and

    6 public service positions?

    7 A. I started my academic career in 1972, when I was

    8 admitted as assistant lecturer at the Law Faculty of

    9 Sarajevo, and later on, as was usual at university, I

    10 acquired the title of Professor of International Public

    11 Law at the Law Faculty in Sarajevo.

    12 In addition to teaching and scientific work that I

    13 have engaged in during the years I spent at the Sarajevo

    14 University, I was a tutor for a number of students at

    15 post-graduate level. I was also a consultant for

    16 doctoral thesis. In addition to international public

    17 law I taught related subjects such as international

    18 relations, comparative constitutional law, later on

    19 European law and European institutions.

    20 My academic career, therefore, was mainly focused

    21 on the Sarajevo University, or rather the Faculty of Law

    22 of that University, but my scope of interest led me to

    23 have contacts with all the universities in the former

    24 Yugoslavia, and also in Europe and the United States of

    25 America.

  4. 1 In addition to teaching and research work at the

    2 University from the beginning one might say I was

    3 involved in public affairs, particularly in

    4 international law and public law in general, so that

    5 quite early on I joined in various forms of

    6 consultations in the area of law, but to leave out a

    7 period which may not be of relevance for my testimony

    8 today, I would say that my first encounter with the

    9 constitutional legal aspects of the establishment of a

    10 State and new legal orders was when I was appointed

    11 United Nations expert for South Africa. I served from

    12 1990 until 1995 as a member of a group of experts of the

    13 United Nations for South Africa, consisting of six

    14 experts appointed in their personal capacity, and we had

    15 missions in the south of Africa, and we studied in

    16 particular violations of human rights related to

    17 apartheid and we reported on our findings to the General

    18 Assembly and the Human Rights Commission on a regular

    19 basis.

    20 On that occasion already I engaged in various

    21 analytical projects regarding constitutional amendments

    22 in the South African Republic, changes in the

    23 legislation and the introduction of new elements in the

    24 structure of the legislation of South Africa towards the

    25 end of the apartheid regime. Because of the war in my

  5. 1 country I left Sarajevo at the end of July 1992 and

    2 until then, that is just before leaving

    3 Bosnia-Herzegovina, I kept my chair at the Faculty of

    4 Law, of course, but I was the eye witness of those

    5 turbulent events in Bosnia-Herzegovina, because I was

    6 appointed -- I think that was at the very end of 1990 or

    7 the very beginning of 1991 -- when I was appointed

    8 member of the Constitutional Commission of the

    9 Parliament of Bosnia-Herzegovina. That was a

    10 commission for constitutional matters consisting of

    11 representatives of political parties, represented in

    12 Parliament, but a number of seats in that commission was

    13 reserved for independent experts so that four or five of

    14 us were appointed in that capacity to the Commission for

    15 Constitutional Affairs.

    16 I spent more than a year working in that

    17 commission, that is from the end of 1990/beginning of

    18 1991 until actually the beginning of the war, because

    19 when the war began, the conditions in Sarajevo were such

    20 that that commission hardly met, and it was there that I

    21 acquired direct experience regarding the dramatic

    22 changes in the constitution and the adoption of new laws

    23 in Bosnia-Herzegovina.

    24 I said that I left my country at the end of July

    25 1992, and I came to Great Britain, where I was offered a

  6. 1 guest lectureship at the Essex University, where I spent

    2 two years teaching at post-graduate level of the School

    3 of Law in Essex a number of subjects, such as

    4 international humanitarian law, human rights, the theory

    5 and practice, European institutions and at the time

    6 already I began to study very intensively the events in

    7 the lands emerging from the former Yugoslavia, the

    8 constitutional and legal development in those countries,

    9 the new laws that were being passed in the newly

    10 independent states that emerged from the break-up of the

    11 former Yugoslavia.

    12 At the time, of course, I took part in a large

    13 number of conferences from 1992 to the present and I'm

    14 still doing that actually, and in view of this activity

    15 of mine, and I assume also in view of my experience and

    16 my expert knowledge, I was engaged as a consultant on

    17 the part of the High Representative for

    18 Bosnia-Herzegovina, Mr. Karl Bilt, who was head of that

    19 office until recently. I was engaged on a number of

    20 occasions to express my views regarding new draft laws

    21 of Bosnia-Herzegovina. Specifically I participated in

    22 the drafting of the rules of procedure for the joint

    23 bodies of Bosnia-Herzegovina, the Parliamentary

    24 assembly, the presidency and the counsel of ministers.

    25 I was also consulted on a number of occasions by the

  7. 1 High Representative in connection with legal problems

    2 that emerged in the application of the Dayton accords.

    3 Due to my interests as a professional I began

    4 studying the Dayton accords even before they were

    5 adopted, and I wrote a number of papers and held a large

    6 number of lectures at which I submitted the Dayton

    7 accords to a legal and, I might even say, a political

    8 analysis.

    9 I'm still in touch with the office of the High

    10 Representative for Bosnia-Herzegovina and I'm still

    11 collaborating with them. The most recent project in

    12 this area had to do with the well-known point of the

    13 Dayton accords regarding parallel relations with

    14 neighbouring states.

    15 Earlier on I was invited to brief officials at the

    16 international conference on the former Yugoslavia, which

    17 was chaired first by Messrs. Vance and Owen, and

    18 Stoltenberg and Owen. That conference met in Geneva

    19 and on several occasions I had occasion to express my

    20 views and provide consultation to the participants at

    21 this conference.

    22 A further point I should like to mention in

    23 connection with my co-operation with the High Office was

    24 a revision of the translations of the Dayton

    25 Constitution of Bosnia-Herzegovina in all three

  8. 1 languages: Bosnian, Croatian and Serbian, and that

    2 publication has been officially published by the office

    3 of the High Representative a couple of months ago.

    4 As I said, I have published a number of papers

    5 linked to the Dayton accords, to the situation in the

    6 former Yugoslavia, and especially the situation in

    7 Bosnia-Herzegovina. Of course, I would avoid listing

    8 all those titles, but the article I recently completed

    9 and is about to be published in two very distinguished

    10 journals, one has to do with the provisions on human

    11 rights in the Dayton constitution of Bosnia-Herzegovina,

    12 which will be published in the Human Rights Quarterly,

    13 which is a leading journal, world journal for human

    14 rights published in the United States, of course, in

    15 English, and in Croatian. This article will be

    16 published in the Collector of the Faculty of Law in

    17 Zagreb. I have just been informed that it has been

    18 admitted for publication.

    19 Q. Thank you, Dr. Pajic. I think you have established your

    20 expertise before the Tribunal. Your career and your

    21 academic qualifications and your publication are more

    22 fully set out in a curriculum vitae that you provided to

    23 me prepared in your own hand. I do not propose to

    24 admit it as an exhibit, Mr. President, but if it's of

    25 assistance to the court I will distribute copies

  9. 1 (Handed).

    2 Professor Pajic, the Prosecutor approached you

    3 earlier this year specifically in respect of your

    4 constitutional legal expertise, and we gave you a brief

    5 on what we required of you, and I would like you to

    6 explain to the Tribunal the nature of that brief, the

    7 purpose behind it, in effect specifically what you have

    8 been asked to do and to testify to speak to before the

    9 Tribunal today?

    10 A. Before answering Mr. Cayley's question directly, allow me

    11 as a long-standing Professor of law to express my

    12 respect for all the judges of this Tribunal for the

    13 historic mission they have been entrusted with. Ever

    14 since the Tribunal has founded I have been following

    15 with great attention and enthusiasm the work of this

    16 lofty institution of the United Nations. With the same

    17 respect and understanding I look upon the work of the

    18 Office of the Prosecutor and defence counsel, and I have

    19 deep appreciation for their contribution.

    20 Finally, I'm proud to have been shown the trust to

    21 appear as an expert witness considering this Tribunal a

    22 turning point in the history of international law.

    23 Thank you.

    24 To come back to your question, Mr. Prosecutor, by

    25 the office of the prosecution I have been asked to

  10. 1 provide expert opinion regarding the following issues.

    2 The Prosecutor asked me to provide a detailed analysis

    3 of the legal documents of the Croatian Community of

    4 Herceg-Bosna, which later became the Croatian Republic

    5 of Herceg-Bosna, and the legal order that was

    6 established through those normative acts.

    7 Furthermore, my task was as far as possible to

    8 interpret the political goals which this legislative

    9 activity was based on to indicate the territorial

    10 aspirations that emerge from the legislation of the

    11 Croatian Community of Herceg-Bosna and specifically to

    12 explain the relations between The Republic of

    13 Bosnia-Herzegovina and the Croatian Community of

    14 Herceg-Bosna; furthermore, the relationship between the

    15 Croatian Community of Herceg-Bosna and The Republic of

    16 Croatia of course all this on the basis of documents and

    17 regulations placed at my disposal.

    18 I was also asked to provide a clear explanation of

    19 the institutional set-up of the bodies of authority from

    20 the legal and political standpoint, to explain the

    21 division of competency and the scope of jurisdiction

    22 regarding relations between the Presidency of

    23 Herceg-Bosna and the Croatian Defence Council.

    24 My task was also to explain the legal position of

    25 the armed forces of the Croatian Community of

  11. 1 Herceg-Bosna, the organisation of the judiciary, the

    2 organisation of the executive branch and, finally, to

    3 give an overall explanation of the evolution of a

    4 specific legal order that was being established within

    5 the framework of the Croatian Community of Herceg-Bosna.

    6 Q. Dr. Pajic, what did the Prosecutor provide to you in

    7 order to perform this task?

    8 A. From the Prosecutor I received several volumes -- I

    9 think four or five volumes -- of the Narodni List or

    10 Official Gazette of the Croatian Community of

    11 Herceg-Bosna, in which all the regulations passed in the

    12 period from 1992 until 1994 were published.

    13 Q. Dr. Pajic, for the sake of the procedure of the Tribunal,

    14 could you identify the documents in front of you? Are

    15 these the documents that were provided to you?

    16 A. Yes. Those are precisely the volumes I have just

    17 mentioned.

    18 Q. Now, Mr. President, I can move to have these admitted

    19 into evidence now or wait for the witness to discuss

    20 them and then move to have them admitted into evidence

    21 if my learned friend, Mr. Hayman, has any comments.

    22 JUDGE JORDA: Mr. Cayley, were these documents given to the

    23 Defence as part of disclosure of evidence or is it only

    24 today that they are being distributed.

    25 MR. CAYLEY: It is only today that they are being

  12. 1 distributed, your Honour, but they are public

    2 documents. They are publicly available. They were

    3 commercially purchased by the Tribunal. They are not

    4 special documents that we have received from any

    5 particular source.

    6 JUDGE JORDA: Mr. Hayman?

    7 MR. HAYMAN: Your Honour, we do not anticipate any

    8 difficulty but if we could perhaps during a break just

    9 have the opportunity to look at them to satisfy

    10 ourselves that they are authentic copies.

    11 JUDGE JORDA: Yes, that's fine. Therefore, during the

    12 break today or at another time you'll have the time to

    13 glance through them. Will they be admitted as

    14 evidence?

    15 MR. CAYLEY: Please, Mr. President. In fact, Mr. President,

    16 I can put my learned friend's mind immediately at

    17 rest. I can provide them with a copy now and also a

    18 copy to the judges and indeed English translations for

    19 the use of Mr. Hayman of extracts that have been made.

    20 I can do that now, if you wish.

    21 JUDGE JORDA: Yes. I think that would be a good part of

    22 our proceedings with both parties here. You can give

    23 these to the Tribunal and they will be put in as

    24 evidence.

    25 MR. CAYLEY: Thank you, Mr. President.

  13. 1 JUDGE JORDA: As regards the Tribunal, for the time just

    2 give us one copy only. We do not need three. One is

    3 enough. Would you go on, please? Mr. Cayley?

    4 MR. CAYLEY: Dr. Pajic, can you explain to the court the

    5 documents now in front of the judges and the Defence?

    6 Can you explain exactly what these documents are? Could

    7 you try and equate them to a similar item in another

    8 jurisdiction in order to allow the court to make an

    9 analogy, and could you also confirm to the court with

    10 foundation that they are public documents?

    11 A. The Official Gazette placed at my disposal is as a

    12 publication based on the European continental tradition

    13 where legislation and regulations were always published

    14 in official gazettes. As far as I'm aware, virtually

    15 every European state has a publication of this kind

    16 carrying laws and enactments, and the former Yugoslavia,

    17 too, accepted this tradition, so that we had an official

    18 -- a federal Official Gazette. All the Yugoslav

    19 republics had their own Official Gazettes. If we would

    20 make further comparisons with other countries, I think

    21 the Narodni List, or People's Paper, Gazette, would

    22 compare with those in other European states, like the

    23 Journal Officiel de la Republique Francaise, or the BGPL

    24 of Germany, or as far as I'm aware in the United States

    25 there is the Congressional Record of the United

  14. 1 States. In Great Britain this publication is called

    2 Hansard and so on.

    3 So, to sum up, this is a publication which was

    4 accessible to the public and in a number of issues of

    5 this gazette you can find orders for subscriptions, an

    6 order form, giving explanations where it is published,

    7 in how many copies, who is the publisher, and in one of

    8 the issues there is a special page with Christmas

    9 greetings to all readers.

    10 Q. If I could now put that document before the court, I'll

    11 first of all show it to Dr. Pajic.

    12 JUDGE JORDA: Excuse me. Together with my colleagues, the

    13 official journal that I was given -- this is the

    14 official journal. Was it a federal one or from one of

    15 the republics or one of the entities?

    16 A. This is the Official Gazette of the newly-founded entity

    17 within the framework of the Republic of

    18 Bosnia-Herzegovina, which was called the Croatian

    19 Community of Herceg-Bosna.

    20 JUDGE JORDA: Thank you for the clarification.

    21 MR. CAYLEY: The document that has just been placed before

    22 you, Dr. Pajic, is that the subscription document that

    23 you were referring to?

    24 A. Yes. It is what I just mentioned.

    25 Q. This indeed supports your view that these were public

  15. 1 documents?

    2 A. Yes. Quite specifically this is an invitation to

    3 subscribers to subscribe to the Official Gazette of the

    4 Croatian Community of Herceg-Bosna so that sufficient

    5 copies may be published and orders can be addressed to

    6 the offices in Mostar, and there's a telephone and fax

    7 number.

    8 Q. Thank you. If that document could be admitted into

    9 evidence, I think that's document 36A-C. No.

    10 THE REGISTRAR: It's 37.

    11 MR. CAYLEY: Thank you. Now, Dr. Pajic, in the course of

    12 your research for the Office of the Prosecutor you

    13 selected certain parts of this legislation to support

    14 your testimony. First of all, I would like to actually

    15 show you the extracts, if you can just recognise them

    16 for the purposes of production of the evidence before

    17 the court, and then if you could explain how you came to

    18 make that particular selection of documents. Dr. Pajic,

    19 if you could wait one moment while I hand out copies to

    20 the --

    21 JUDGE JORDA: Just a moment, please. (Pause.) Mr. Cayley,

    22 in order to speed up the distribution of these different

    23 documents, I would like to have the opinion of everybody

    24 actually, wouldn't it first be better if we were to have

    25 the witness identify the document? It is your

  16. 1 witness. You can have the document identified. Then

    2 it's given to the Registry for numbering and then I

    3 would like to see whether it is evidence or not. I

    4 think that would be a way of speeding things you. Do

    5 you agree?

    6 MR. CAYLEY: Yes, your Honour, I think that would.

    7 JUDGE JORDA: Mr. Hayman?

    8 MR. HAYMAN: That's fine so long as we are given a copy at

    9 the time the witness is given a copy, your Honour.

    10 JUDGE JORDA: So we give the document first to the witness,

    11 who identifies it, since it's his, and you worked with

    12 the Prosecution. Then immediately it is identified by

    13 the Registrar and at the same time is given as evidence

    14 to the Defence and that is how the Tribunal will work in

    15 the future, which will not only speed things up with

    16 Professor Pajic but with the witnesses in the future.

    17 Please continue.

    18 MR. CAYLEY: If I could give copies to the Defence now,

    19 Mr. President. (Handed) Dr. Pajic, are these the

    20 documents you extracted from the purposes of your

    21 research?

    22 A. Yes, this is a selection of the documents that I made.

    23 Q. If I could just very briefly explain to the court, these

    24 extracted documents have been translated into English

    25 and French. The English version of the file has a grey

  17. 1 cover and the French version has a pink cover, and the

    2 original version has a blue cover.

    3 JUDGE JORDA: Go ahead.

    4 MR. CAYLEY: If I could just very briefly explain the

    5 indexing system in these files, when I refer to

    6 particular documents by number, it will be the number

    7 corresponding to the grey index down the side of the

    8 spine of the file. In document two there are a number

    9 of pages of documents and in that particular area of

    10 Dr. Pajic's testimony I will be referring to the

    11 particular page number rather than the document

    12 number.

    13 The French version is slightly longer by eight

    14 pages than the English version, so, Mr. President, I will

    15 have to give you at times a separate page number.

    16 If we can continue, Dr. Pajic, if I could refer you

    17 to the first document in the bundle, which is document 1

    18 in everybody's file, could you explain to the court what

    19 this document purports to do?

    20 A. Allow me in a few words to inform you of the criteria I

    21 was guided by when making this selection of documents.

    22 Clearly a selection of any documents which has been

    23 reduced to maybe a quarter of the total amount of

    24 documents I had at my disposal and I was guided by the

    25 brief assigned to me by the Prosecution regarding the

  18. 1 kind of expert opinion I would be asked to give. That

    2 is why I felt that numerous documents having to do with

    3 certain technical matters, regulating certain detailed

    4 things such as transportation, technical standards and

    5 so on, were not relevant for my testimony, and that is

    6 why I focused on these extracts that are contained in

    7 this binder.

    8 To come back to your question, the first document

    9 is the decision on establishing the Croatian Community

    10 of Herceg-Bosna, which was passed on 18th November

    11 1991. It is a very brief document which has a highly

    12 concise preamble saying:

    13 "On the basis of the freely expressed will of the

    14 Croat people in Bosnia-Herzegovina, their democratically

    15 elected representatives at a meeting held in Grude

    16 reached the decision to establish the Croatian Community

    17 of Herceg-Bosna".

    18 Q. Could I refer you to Article 1 of this decision and ask

    19 you to explain the meaning of that particular decision?

    20 A. Article 1 of this decision says that:

    21 "The Croatian Community of Herceg-Bosna shall be

    22 established as a", and I underline, "political,

    23 cultural, economic and territorial whole or

    24 integrity".

    25 The meaning of this first article in my view is to

  19. 1 round off a part of the territory of Bosnia-Herzegovina

    2 into a whole, which would have certain qualities of a

    3 State.

    4 Q. If I could refer you to Article 2 of the decision, and

    5 if you could read that to the court?

    6 A. Article 2 of this decision reads:

    7 "The Croatian Community of Herceg-Bosna shall be

    8 composed of the following municipalities: Jajce,

    9 Kresevo, Busovaca, Vitez, Novi Travnik, Travnik,

    10 Kiseljak, Fojnica, Skender Vakuf (Dobratici), Kakanj,

    11 Vares, Kotor Varos, Tomislavgrad, Livno, Kupres,

    12 Bugojno, Gorni Vakuf, Prozor, Konjic, Jablanica,

    13 Posusje, Mostar, Siroki Brijeg, Grude, Ljubuski, Citluk,

    14 Capljina, Neum, Stolic and Trebinje (Ravno)".

    15 This, therefore, is a list of the municipalities

    16 which compose this territorial whole of the Croatian

    17 Community of Herceg-Bosna.

    18 Q. I wonder if the witness could be shown Exhibit 22, which

    19 has already been admitted into evidence. If that could

    20 be place placed on the ELMO, please. Professor Pajic,

    21 if I could look at the screen in front of you, there's a

    22 map displayed which I know you have already seen. Does

    23 that accurately represent the municipalities expressly

    24 covered by Article 2 of the decision?

    25 A. Yes, yes, this is a map illustrating what I just read

  20. 1 out from Article 2.

    2 Q. And indeed this is part of Bosnia-Herzegovina?

    3 A. Yes. This is part of the central southern part of the

    4 territory of Bosnia-Herzegovina.

    5 Q. If I could now refer you to Article 4 of this decision,

    6 I wondered if you could explain that to the court?

    7 A. Article 4 leaves the possibility of having other

    8 municipalities of Bosnia and Herzegovina accede to the

    9 creation community of Herceg-Bosna provided that there

    10 is approval of the original founders of Herceg-Bosna.

    11 After familiarising you with Articles 1, 2, 3, 4 of the

    12 decision establishing the Croatian Community of

    13 Herceg-Bosna, I wish to draw your attention to a few

    14 interesting legal aspects. First of all, I wish to say

    15 that this way of joining together municipalities which

    16 contains within itself certain elements of statehood,

    17 that is aspirations to form a State, such as political,

    18 cultural, economic and territorial whole is or rather

    19 was in contrast, in contradiction to the constitution of

    20 Republic of Bosnia-Herzegovina, which text was published

    21 in March 1993 in the Official Gazette of the Republic of

    22 Bosnia-Herzegovina Number 5. So this is the authentic

    23 text of the constitution which was in force at the time

    24 this decision was passed, of course, given the

    25 subsequent amendments, too.

  21. 1 The constitution of the Republic of

    2 Bosnia-Herzegovina did not envisage this kind of joining

    3 together of municipalities; that is to say

    4 municipalities were not supposed to join together in

    5 order to set up independent authority in such

    6 communities, and there's another thing I wish to draw

    7 your attention to, that actually we are talking about a

    8 unilateral separation of a few municipalities into a

    9 special community. That is to say without approval or

    10 without a debate on this in the authorities of

    11 Bosnia-Herzegovina stipulated by the constitution in

    12 charge of that.

    13 Now I wish to draw on my legal expertise and also

    14 my Bosnian-Herzegovina background, if I may say so.

    15 I wish to say that this composition of municipalities

    16 stipulated in Article 2 is quite unclear from the point

    17 of view of national interests too, because it is a total

    18 of 30 municipalities of Bosnia-Herzegovina. However,

    19 out of these 30, in 11 of the mentioned municipalities

    20 the Croat people did not even have a relative

    21 majority. So this puzzles me, I must admit, in this

    22 decision, even more so because if you look at the list

    23 of municipalities listed in Article 2, Banja Luka was

    24 left out and about one-third of the Croatian population

    25 lived there. Sarajevo was left out and I'm not sure

  22. 1 about the exact percentages but I imagine that this

    2 could be found in documents that are accessible. About

    3 17 or 18 of the Croat population lived in Sarajevo. So

    4 these municipalities, or rather these cities, were not

    5 part of Herceg-Bosna. So I believe that there is a

    6 certain contradiction involved here between the ethnic

    7 criterion and the territorial criterion as far as this

    8 entity of the Croatian Community of Herceg-Bosna is

    9 concerned.

    10 Q. Now Article 7 of this decision sets out the supreme

    11 authority or the government of this entity, this

    12 community. Could you explain that Article to the

    13 court?

    14 A. Article 7 is very short and it truly does not give a

    15 very clear picture as to how the government in the

    16 community will be organised. It says that:

    17 "The supreme authority of the community shall be

    18 the presidency, comprising the most senior

    19 representatives of the Croatian people and the

    20 municipality authority or President of the Croatian

    21 Democratic Union municipal boards".

    22 The only thing that is clear is that the

    23 Presidency of the Croatian Community includes only

    24 representatives of the Croatian people, that is to say

    25 only the representatives of one political party, the

  23. 1 Croatian Democratic Union. That implies that the other

    2 nations from these municipalities were excluded from the

    3 right to political representation in the Croatian

    4 Community of Herceg-Bosna.

    5 Q. By whom is the document signed?

    6 A. This document was signed by the participants of the

    7 meeting in Grude, as the introduction, preamble to this

    8 decision says, and here are the signatures of all the

    9 participants.

    10 Q. Thank you, Dr. Pajic. If you could very briefly refer

    11 to the final paragraphs which are in the form of

    12 preamble or paragraphs or recitals and just make a few

    13 comments to the court on those paragraphs?

    14 A. In addition to this document there is an explication,

    15 reasons why this decision was passed. What I wish to

    16 emphasise here is that in November 1991

    17 Bosnia-Herzegovina was not involved in war yet; that is

    18 to say in the Republic of Bosnia-Herzegovina war had not

    19 broken out yet, and it seems to me according to the

    20 spirit of this explanation that this is a reaction to

    21 the dramatic events taking place in Croatia, in the

    22 Republic of Croatia, rather than the jeopardy of the

    23 Croatian people in the Republic of Bosnia-Herzegovina,

    24 because in this preamble they say there are divisions

    25 and grabs for other people's territories and that the

  24. 1 Serbs were creating a so-called soukina, that they were

    2 demolishing Bosnia-Herzegovina, etc. I underline once

    3 again the fact this is November 1991, when in

    4 Bosnia-Herzegovina there were no war operations yet.

    5 Q. November of 1991 was when this decision was made?

    6 A. The 18th November 1991.

    7 Q. Thank you, Dr. Pajic. If I can now move on to document

    8 2, and if I could bring the court's attention --

    9 JUDGE JORDA: Excuse me. Judge Shahabuddeen would like to

    10 ask a question.

    11 JUDGE SHAHABUDDEEN: Dr. Pajic, the decision recorded in

    12 document number 1 was taken on 18th November 1991.

    13 When was it published in this Official Gazette?

    14 A. Thank you, your Honour. May I?

    15 MR. CAYLEY: Please.

    16 A. This document, document number 1, the decision on

    17 establishing the Croatian Community of Herceg-Bosna, was

    18 not published in Narodni list, the Official Gazette,

    19 that is to say an official publication, because the

    20 Official Gazette was published only later. It started

    21 only later. What was published in Narodni List, the

    22 Official Gazette, is the amended text of the decision

    23 that I have just explained now.

    24 JUDGE SHAHABUDDEEN: When was that published?

    25 A. The amended and definite text was published as document

  25. 1 number 1 in the Official Gazette of the Croatian

    2 Community of Herceg-Bosna. It was adopted on

    3 possession of 3rd July 1992 and it was published in

    4 number 1 of the Official Gazette on 3rd July 1992.

    5 JUDGE SHAHABUDDEEN: One last question. I understood you

    6 to be saying that the decision represented in this

    7 document was inconsistent with the constitution of

    8 Bosnia-Herzegovina of March 1993, that is a later

    9 document. How would you explain the inconsistency of a

    10 former document with an overriding later document?

    11 A. When I mentioned the constitution of the Republic of

    12 Bosnia-Herzegovina I mentioned that the definite text of

    13 this constitution was published in 1993, but this

    14 decision was in contradiction to the then valid

    15 constitution of Bosnia-Herzegovina, which was valid in

    16 1991, but it was not published for a long time, I

    17 imagine because of the war situation. So I have a copy

    18 of the Official Gazette of the Republic of

    19 Bosnia-Herzegovina from 1993, when this previous

    20 constitution was published together with all the

    21 amendments that ensued, but the provisions I mentioned

    22 were valid provisions from the old constitution of 1989

    23 amended in 1990, adopted in 1991.

    24 JUDGE JORDA: Allez-y, Monsieur Procurateur.

    25 MR. CAYLEY: Thank you, Mr. President. If I can take you to

  26. 1 the next document, which is document 2 in the files

    2 before your Honours and the Defence and the document

    3 page number in the top right-hand corner is page 2.

    4 Dr. Pajic, as you have already explained, there are a

    5 great number of similarities between the previous

    6 document and this document. I wonder if you could

    7 explain to the court the significant differences between

    8 these two documents?

    9 A. The first difference that one can see is that the

    10 preamble is far more detailed of this decision or rather

    11 the definite text of this decision and this says that

    12 the Republic of Bosnia-Herzegovina was a community of

    13 three constituent nations, the Muslims, Croats and

    14 Serbs, and pursuant to the general accepted principles

    15 the Croatian people established the Croatian Community

    16 of Herceg-Bosna. That is the first difference.

    17 However, from a nominative point of view the difference

    18 that seems significant to me definitely, the most

    19 significant difference, is in Article 7 of this

    20 decision. I already said that in the first decision

    21 that this was not specified in great detail what the

    22 supreme authority was. However, this Article 7 shows

    23 exactly what the structure of the government is. It

    24 says that supreme authority of the Croatian Community of

    25 Herceg-Bosna shall be vested in the following: the

  27. 1 President of the Croatian Community of Herceg-Bosna.

    2 So the post of President, the office of President, is

    3 established. Number 2, the presidency of the Croatian

    4 Community of Herceg-Bosna, that's to say a collective

    5 authority, a collective organ, which now consists of the

    6 representatives of the Croat people in the municipal

    7 bodies of authority, and that the senior official there

    8 or the Presidents of the municipal Croatian Defence

    9 Council are also members. So the Croatian Democratic

    10 Union is no longer mentioned, that is to say a political

    11 party, but the Croatian Defence Council. We will see

    12 from later documents what kind of a body we are speaking

    13 of.

    14 What is very important is point two of Article

    15 7. The presidency was given legislative function. It

    16 says explicitly that:

    17 "The presidency shall be the legislative body of

    18 the Croatian Community of Herceg-Bosna".

    19 Q. Could you -- the date of this document, Dr. Pajic, is

    20 18th November of 1991 and yet the decision was actually

    21 made, the amendments were made on 3rd July 1992. So

    22 this document has been backdated, has it not?

    23 A. Yes, I agree with you. It was backdated, and it truly

    24 shows continuity with the original decision, which was

    25 adopted on 18th November 1991.

  28. 1 Q. And I think another significant difference in this

    2 document compared to the previous document is that it is

    3 signed by one individual; is that correct?

    4 A. Yes, as opposed to the previous document, where all the

    5 participants in the meeting signed the document as

    6 mentioned, this document was signed by one person

    7 holding the office of President of the Croatian

    8 Community of Herceg-Bosna. It was signed by Mr. Mate

    9 Boban.

    10 Q. Very briefly, Dr. Pajic, the preambular language, the

    11 prefatory paragraphs in this decision, would you say

    12 they are strongly secessionist in comparison to the

    13 previous decision of November 1991?

    14 A. Yes, the preamble is a further step in that direction,

    15 namely in having the Croatian Community of Herceg-Bosna

    16 leave the Republic of Bosnia-Herzegovina and there are

    17 less elements showing that this is an entity which is

    18 still within the Republic of Herceg-Bosna. With your

    19 permission again I would like to draw your attention to

    20 Article 7, which does show an autonomous government and

    21 authority, what seems characteristic of Article 7 to my

    22 mind, speaking of supreme authority of the Croatian

    23 Community of Herceg-Bosna. We see here how legislative

    24 and executive powers are brought together within the

    25 same authority, the same organ.

  29. 1 I'm saying that because the Croatian Defence

    2 Council, which was a defence structure, now becomes part

    3 of legislative body of the Croatian Community of

    4 Herceg-Bosna. What is not sufficiently clear from

    5 Article 7 is that this relationship between the

    6 President as a one-man organ and the Presidency as a

    7 collective organ, one does not see whether at the same

    8 time the President is the President of the Presidency

    9 too.

    10 Q. Thank you. If I could now move you ahead to page 4,

    11 which is the decision on the creation of the Croatian

    12 Defence Council, I wonder if you could make your

    13 comments on that particular document?

    14 A. This is a very short document, an introductory paragraph

    15 which has the characteristics of a preamble. It says

    16 that:

    17 "The Presidency of the Croatian Community of

    18 Herceg-Bosna, faced with aggression in the territories

    19 of the Croatian Community of Herceg-Bosna, and the fact

    20 that the Croatian people have been left unprotected".

    21 There is no reference in this preamble whatsoever

    22 to the Republic of Bosnia-Herzegovina. Now we are

    23 talking about April 1992 and it was certainly faced with

    24 aggression throughout its territory. As far as the

    25 specific provisions of this decision are concerned, I

  30. 1 wish to say that Article 1 establishes the Croatian

    2 Defence Council as the supreme defence body of the

    3 Croatian people and the Croatian Community of

    4 Herceg-Bosna and the tasks of the Croatian Defence

    5 Council are spelled out in Article 2:

    6 "To take care of the sovereign place of the

    7 Croatian Community of Herceg-Bosna and to protect the

    8 Croatian people".

    9 In one opinion one already sees here clear

    10 elements of a wish for a territorial sovereignty and

    11 protecting territorial sovereignty, and I do not have to

    12 particularly emphasise the fact that this is one of the

    13 main characteristics of statehood in international law.

    14 Q. One last point, Dr. Pajic: comparing Article 7 of the

    15 previous decision on page 3 and this decision, am I

    16 right in saying that the HVO, what you have said

    17 effectively was a defensive body, becomes part of the

    18 legislature of the Croatian Community of Herceg-Bosna?

    19 A. Yes, quite explicitly. The Presidents of the municipal

    20 Croatian Defence Councils are ex officio members of the

    21 Presidency of the Croatian Community of Herceg-Bosna,

    22 which is the legislature of the Croatian Community of

    23 Herceg-Bosna.

    24 Q. Thank you. If I could now proceed on to page 5 of the

    25 documents before you, which is the statutory decision on

  31. 1 the temporary organisation of executive authority and

    2 administration in the Croatian Community of

    3 Herceg-Bosna, what was the effect of this decision and

    4 what type of entity was being created as a result of

    5 this decree?

    6 A. Statutory decision on the temporary organisation of

    7 executive authority promotes the Croatian Defence

    8 Council from an exclusively defence organise into the

    9 highest, the supreme authority, executive and

    10 administrative in the territory of the Croatian

    11 Community of Herceg-Bosna. So this is truly a

    12 qualitative jump, was a defence body which was founded

    13 for protecting the territorial integrity of Herceg-Bosna

    14 is now being promoted to supreme executive and

    15 administrative body. I recall that the Presidency is

    16 composed also by representatives of the Croatian Defence

    17 Council, and this shows that -- this statutory decision

    18 shows the concentration of power now in the Presidency

    19 of the Croatian Community in terms of defence and

    20 executive and administrative functions.

    21 Q. So am I right in saying that at this stage both the

    22 executive and the legislature was controlled by the HVO?

    23 A. I think that that is an accurate assessment.

    24 Q. Thank you. If I could refer you to Article 14 of this

    25 decision, which is on page 6, could you explain that

  32. 1 Article to the court?

    2 A. Article 14 and Article 15 should be looked at together,

    3 I think, for a simple reason: because they carry out in

    4 practice the principle of subordination between the

    5 National Croatian Defence Council and, if you allow me,

    6 from now on I am going to use abbreviations, instead of

    7 saying the Croatian Defence Council, I shall be saying

    8 the HVO. So it is clear from Article 14 that now.

    9 HVO supervises the work of its departments and municipal

    10 HVOs. I am quoting Article 14 now, and "the HVO may

    11 use its supervisory power to annul or abolish individual

    12 legal acts passed at municipal level". So this is the

    13 right to supervision according to the principle of

    14 subordination.

    15 JUDGE JORDA: Can I have a clarification? You are talking

    16 about departments. Could you go back to number 7?

    17 What do "the chiefs of department" mean? I didn't

    18 really understand what was translated into French as

    19 "chefs du departments". I think it is 7. They talk

    20 about the composition of -- 7 says that it has

    21 "department heads". Since we are talking about that

    22 again in 14, it would be good to have clarification.

    23 A. This can be spelled out in precise terms, your Honour,

    24 if we include 20 of the statutory decision into the

    25 whole picture, because Article 20 says:

  33. 1 "That the HVO of the HZ H-B", the Croatian Defence

    2 Council of the Croatian Community of Herceg-Bosna,

    3 "shall have the following departments".

    4 They are listed in Article 20. So Article 7

    5 refers to the heads of those departments. May I

    6 continue, about your permission?

    7 This principle of subordination was heralded in

    8 Articles 14 and 15 respectively, and it says:

    9 "If for example, a municipal HVO violates the

    10 basic legal provisions of the HZ H-B, the national HVO

    11 at national level, the level of the Croat community, has

    12 the right and even duty to dissolve the said municipal

    13 HVO".

    14 Q. So by reason of that article, the HVO was taking under

    15 its wing the complete control of the municipal

    16 government as well as the central government; is that

    17 correct?

    18 A. Yes. This is this process of centralising power in the

    19 hands of the HVO. These are the final steps, the level

    20 of the Croatian Community of Herceg-Bosna. Since I have

    21 already referred to Article 20, let us be as economical

    22 as possible with our time. Let me say straightaway

    23 what this is all about. Article 20 actually

    24 establishes departments within the HVO which at first

    25 glance look like a cabinet, a government. At first

  34. 1 glance these departments are just like ministries.

    2 That is the function they have, because I shall

    3 enumerate them, and we are talking about the following

    4 fields: Defence, the Interior, Economic Affairs,

    5 Finance, Social Affairs and finally Justice and

    6 Administration. For all these fields special

    7 departments were set up of the HVO HB and so what

    8 Article 7 says does not refer to this.

    9 Q. So the HVO is part of the, or is the executive and is

    10 part of the legislature. To whom was the HVO

    11 answerable or responsible by reason of these documents?

    12 A. In the decision on establishing the Croatian Community

    13 of Herceg-Bosna it was said that the HVO was responsible

    14 to the Presidency of Herceg-Bosna, and it seems to me

    15 that here we can talk about a closed circle of

    16 responsibility. On the one hand, the HVO was part of

    17 the Presidency of Herceg-Bosna. The HVO is an

    18 independent, supreme organ of executive and legislative

    19 powers, and it is responsible to the Presidency of which

    20 it is part. So from this I can draw the conclusion

    21 that this is a centralisation of power in the hands of

    22 the HVO. I'm talking about legislative functions and

    23 administrative and executive organs and defence

    24 authority, and this is now brought into question.

    25 To put it simply, there's a strict hierarchy on

  35. 1 the basis of this decision, both of enactments and of

    2 authorities, in the Croat community of Herceg-Bosna, and

    3 I can already say within the legal order of the Croat

    4 community of Herceg-Bosna we see that the HVO is

    5 omnipresent in all fields of life of the Croatian

    6 Community. Then there is also a centralised structure

    7 of power from the beginning to the end, from the top to

    8 the bottom, to the municipal level, and I think that we

    9 can speak of a regime which is headed by a military

    10 organisation because, as I said at the very beginning,

    11 in the first decision the HVO was founded as a defence

    12 body. So military organisation with the prerogatives

    13 of authoritarian power.

    14 JUDGE JORDA: We can take a pause now. The interpreters

    15 have been working since early this morning. We will

    16 resume at noon.

    17 (11.45 am)

    18 (Short break)

    19 (12.10 pm)

    20 JUDGE JORDA: We can now resume. I would like to have the

    21 accused brought in, please.

    22 (Accused re-enters court)

    23 JUDGE JORDA: Registrar, perhaps we could have the witness

    24 that Mr. Cayley has called brought in.

    25 (Witness re-enters court)

  36. 1 JUDGE JORDA: We will now continue and we will continue

    2 until 1 o'clock. Mr. Cayley, as soon as the witness,

    3 who I hope has rested up a little bit, is seated, go

    4 ahead.

    5 MR. CAYLEY: Thank you, Mr. President. I just wish to make

    6 it clear for the record that in the process of my

    7 examination of Dr. Pajic I'm referring to exhibits 38A, B

    8 and C, A being the original Croatian version, B being

    9 the French version and C being the English

    10 translation.

    11 JUDGE JORDA: You are talking about the binders now? Is

    12 that what you are talking about?

    13 MR. CAYLEY: That is correct, Mr. President, yes.

    14 JUDGE JORDA: All right. Go ahead.

    15 MR. CAYLEY: Dr. Pajic, if I could take you to page 9 of the

    16 extract, which is the statutory decision on municipal

    17 executive authority and municipal administration, does

    18 this document show the subordination principle which you

    19 referred to earlier in your testimony?

    20 A. Yes. This statutory decision in my opinion represents

    21 the final stage of the vertical structure of state

    22 institutions in the Croatian Community of

    23 Herceg-Bosna. I will support this by citing Article 6,

    24 which says that:

    25 "The HVO of the Croatian Community of Herceg-Bosna

  37. 1 shall supervise the legality of the municipal HVO's

    2 work".

    3 And then also that:

    4 "It shall instruct the municipal HVO in the field

    5 of its competence".

    6 Therefore there is a permanent responsibility for

    7 supervision over the work of the municipal bodies.

    8 Article 7 is also illustrative of what I've just said,

    9 and that is that administrative affairs within the

    10 rights and duties of the municipality shall be conducted

    11 by administrative offices, and the administrative

    12 offices shall be established by decision of the

    13 municipal HVO, which is subordinated to the national

    14 structure of the HVO of Herceg-Bosna.

    15 Q. Now Article 7 of this decision excludes two particular

    16 offices from the municipal government and retains them

    17 within the central government. What are those two

    18 offices?

    19 A. Yes. Article 7 provides the possibility for the

    20 municipal HVO to establish its administrative offices

    21 with the exception of the Defence office and the office

    22 of the Interior. My conclusion from this would be that

    23 these areas, the area of defence and of internal

    24 affairs, have been retained within the competence of the

    25 central organ, that is the national HVO.

  38. 1 Q. If I could now take you to page 11, please, Dr. Pajic,

    2 this is a very short decision, but I wonder if you can

    3 briefly explain it to the court?

    4 A. By this decision the Official Gazette of the Croatian

    5 Community of Herceg-Bosna was established, known as the

    6 Narodni list of the Croatian Community of Herceg-Bosna,

    7 which I have already described.

    8 Q. Thank you. If you could now take you to page 12, which

    9 is the decree on the armed forces of the Croatian

    10 Community of Herceg-Bosna, if I could make some general

    11 conclusions about this particular decision?

    12 A. The court is aware that I'm not an expert for military

    13 matters, but I can certainly on the basis of the legal

    14 language used in this degree on the armed forces of the

    15 Croatian Community of Herceg-Bosna say that this is a

    16 fully consistent legal document, and I must also add --

    17 maybe this is the best time to say it -- that I am

    18 impressed by the clear legal language and the high level

    19 of normative activity which permeates all these

    20 documents of the Croatian Community of Herceg-Bosna, or

    21 rather those published in the Official Gazette. I have

    22 studied them all and one can note a high degree of

    23 consistency. Everything is done in clear-cut legal

    24 language and it is indicative of the integralness of the

    25 legal order as it was conceived by the legislator, if I

  39. 1 may call them that.

    2 To come back to the specific decree, it speaks

    3 mostly to the duties of citizens in the area of

    4 defence. The Defence of the independence and

    5 territorial integrity of the Croatian Community of

    6 Herceg-Bosna, and without entering the military

    7 terminology which permeates this text, the text of this

    8 decision, which is quite extensive -- it has 64 Articles

    9 -- I would just say that it is clear from this decision

    10 that all the citizens of the Croatian Community of

    11 Herceg-Bosna are in one way or another in the service of

    12 the armed forces of the Croatian Community of

    13 Herceg-Bosna. Every person according to this decree,

    14 both physical and legal entities, have their place

    15 within this system. It is clearly indicated what are

    16 the obligations and the duties, and in the end there is

    17 specific mention of legal entities, the system of

    18 command and control, mobilisation, replenishment and so

    19 on, and finally as the Crown of this whole system, there

    20 are punitive measures envisaged in the case of any

    21 violations of this decree. So this is indeed an

    22 integral document which fully covers this area of armed

    23 forces.

    24 May I specifically refer to a couple of articles?

    25 Article 3 says that:

  40. 1 "Every citizen of the HZ H-B shall have the duty

    2 to protect and defend the independence and territorial

    3 integrity of the Croatian Community".

    4 This is clearly reference to statehood elements

    5 such as independence and territorial integrity, and each

    6 citizen has a different system of serving through

    7 service in the army, compulsory work service,

    8 participation in civil defence, the obligation to

    9 participate in monitoring and reporting services, and

    10 finally in certain material and financial obligations

    11 that each individual has.

    12 Q. Dr. Pajic, if I can now specifically refer you to Article

    13 7, which concerns material obligations of citizens of

    14 Herceg-Bosna, I wonder if you could explain that

    15 particular provision to the court?

    16 A. Article 7 of this decree says that:

    17 "All citizens of HZ H-B have material obligations

    18 consisting of surrendering their vehicles, machinery and

    19 other designated equipment".

    20 When they talk about machinery and other

    21 equipment, they probably have in mind agricultural

    22 machinery, of which there must have been plenty within

    23 the area of the Croatian Community in the households in

    24 that area:

    25 "Also surrendering of equipment and livestock for

  41. 1 defence purposes, civil defence".

    2 It is also stated that legal entities have the

    3 same material obligation, which means that enterprises

    4 and corporations must also surrender part of their

    5 equipment and resources to meet the needs of the armed

    6 forces of the Croatian Community of Herceg-Bosna.

    7 Q. Sir, this is a unilateral --

    8 JUDGE JORDA: Mr. Cayley, Dr. Riad would like to ask a

    9 question.

    10 JUDGE RIAD: Dr. Pajic, the citizenship of the HZ HB is

    11 solely based on ethnic basis? When you say citizens of

    12 the HZ H-B, it means only Croats?

    13 A. I wouldn't go so far as to say that, your Honour. I

    14 cannot confirm that. Nowhere where citizens are

    15 referred to, citizens of HZ H-B, is it stated that they

    16 are exclusively Croats. My interpretation is that this

    17 refers to persons residing in the territory of the

    18 Croatian Community of Herceg-Bosna. In the preambles,

    19 if I may add, in the preambles of the documents on the

    20 establishment of the community, there is express

    21 emphasis on the ethnic element, because it -- reference

    22 is made to the interests of the Croatian people. I

    23 should like to remind you in view of the composition of

    24 the bodies of the Croatian Community of Herceg-Bosna,

    25 and particularly the composition of the Presidency, it

  42. 1 is clear that only citizens of the Croat ethnicity can

    2 be members of these bodies, but when talking in general

    3 terms about the question of citizenship of Herceg-Bosna,

    4 I cannot say that this implies only to people of

    5 Croatian ethnicity, but we will come back to that in

    6 some other documents that refer more specifically to

    7 citizenship.

    8 JUDGE JORDA: I would like to supplement the question that

    9 my colleague has asked. It means that any punishments

    10 would be applied to a citizen who had declared himself

    11 to be Croatian, since there were not only Croatians in

    12 that territory. When you are talking any kind of

    13 punishment that could be meted out to individuals or

    14 companies, they would be meted out according to what

    15 criteria? They would say: "You are Croatian. You have

    16 declared yourself as a Croat". Since my colleague has

    17 asked that question, that is why this one has come to my

    18 mind.

    19 A. The punitive provisions, certain disciplinary measures

    20 and so on, on the basis of these documents are

    21 applicable to all citizens of the Croatian Community of

    22 Herceg-Bosna. I am reiterating that citizens implies

    23 persons who have residence within this territory.

    24 JUDGE JORDA: Thank you. Mr. Cayley?

    25 MR. CAYLEY: Dr. Pajic, if I could just clarify Article 7,

  43. 1 would it be correct to say it is a unilateral

    2 appropriation of civilian property by the HVO? Is that

    3 the effect of Article 7?

    4 A. Yes. I think this is the procedure of requisitioning

    5 material assets by the HVO.

    6 Q. Thank you. If I could take you to Article 23 of this

    7 decision, and I would like you to read that decision, if

    8 you could read that decision and then explain its

    9 meaning to the court?

    10 A. Article 23, and I quote:

    11 "In all circumstances when conducting combat

    12 operations members of the armed forces shall observe the

    13 international laws of war on humane treatment of the

    14 wounded or captured enemy, on protection of the

    15 population and other provisions of these laws".

    16 I think that this is a welcome article in a

    17 document of this kind, but it indicates again that the

    18 Croatian Community of Herceg-Bosna is attributing to

    19 itself the properties of a legal state, because only an

    20 entity that has the status of a state in international

    21 law can make statements of this kind regarding respect

    22 of international laws. A non-state or non-state

    23 community in the sense of international law could not

    24 make a statement of this kind.

    25 Q. If I could now take you to Article 28 of this decision,

  44. 1 which is on page 18, it's a short sentence, but I would

    2 be grateful if you would read it to the court, Dr. Pajic?

    3 A. Article 28 says:

    4 "The Croatian language and the Latin script shall

    5 be used in the armed forces of the HZ H-B".

    6 Q. Thank you. Now I believe that Article 29 of this

    7 decision sets out the command and control of the armed

    8 forces, and I wondered if you could explain to the court

    9 who is designated as the supreme commander of the armed

    10 forces of the HZ H-B?

    11 A. According to Article 29, it is clearly stated that:

    12 "The Supreme Commander of the Armed Forces of HZ

    13 H-B is the President of the Presidency of

    14 Herceg-Bosna".

    15 If I may be allowed to add, however, I think this

    16 Article should be read in conjunction with Article 11 of

    17 the same degree, which says that for executing the

    18 affairs of defence, a supreme staff shall be established

    19 and the organisation of the staff shall be stipulated by

    20 the supreme commander. Therefore, the President of the

    21 Croatian Community of Herceg-Bosna, who will also

    22 appoint -- let me quote it:

    23 " ... who shall appoint keepers in the general

    24 staff. In the event of war a war cabinet shall be

    25 formed and the members of the war cabinet shall also be

  45. 1 appointed by the supreme Commander", which means the

    2 President of the Croatian Community. Therefore,

    3 Article 11 and Article 29 are a whole from which we can

    4 discern the system of command of the Croatian Community

    5 in times of war.

    6 Q. Dr. Pajic, taking you back to Article 29, line 7, could

    7 you please read that to the court?

    8 A. Point 7 of Article 29 reads:

    9 "That the supreme commander shall appoint and

    10 dismiss from duty military commanders in accordance with

    11 special provisions".

    12 Q. Could I now take you, Dr. Pajic, to Article 32, also on

    13 page 18?

    14 A. Uh-huh.

    15 Q. This is a very significant provision of this decision.

    16 I would like you to read it and then explain it to the

    17 court?

    18 A. Uh-huh. Let me read Article 32:

    19 "Command in the armed forces shall be founded on

    20 the following fundamental principles:

    21 (a) unity of command and the obligation to

    22 implement the decisions and carry out the command and

    23 orders of a superior commander;

    24 (b) the commanders of the armed forces shall be

    25 responsible to their superiors for their work, command

  46. 1 and control".

    2 I think that it clearly follows from this

    3 Article 32 that the principle of subordination has been

    4 strictly applied, as well as the command responsibility

    5 within the armed forces of the Croatian Community of

    6 Herceg-Bosna.

    7 Q. Thank you. If I could now refer you to Article 34,

    8 over the page, and if you could simply read the first

    9 three lines of that Article?

    10 A. Article 34 speaks about the rights to appoint and

    11 dismiss commanders in the armed forces and says that:

    12 "The commanders are appointed as follows. The

    13 President of the Croatian Community of Herceg-Bosna

    14 shall appoint and dismiss commanders of brigades and

    15 high-ranking officers".

    16 Then we go one step lower:

    17 "The Croatian Defence Council shall appoint and

    18 dismiss commanders of battalions and companies as well

    19 as other officers".

    20 Finally:

    21 "Brigade commanders shall appoint and dismiss

    22 commanders of platoons, detachments and other

    23 non-commissioned officers".

    24 I think, if I may be allowed to add, that it

    25 follows from this Article 34 -- let me focus on this

  47. 1 highest level of appointments. The President of the

    2 Presidency of the Croatian Community certainly has

    3 direct insight into all personnel appointments at the

    4 level for which he is authorised, which means at the

    5 level of commanders of brigades and higher level

    6 officers. At this lower level it is the Croatian

    7 Defence Council that appoints and dismisses commanders

    8 of battalions and companies as well as other officers.

    9 Let me just recall that the same person in the Croatian

    10 Community is the President of the HVO and the President

    11 of the Presidency.

    12 Q. Thank you. Could I refer to you Article 37? If you

    13 would explain that provision to the court?

    14 A. It is a very brief provision saying that the

    15 mobilisation of the armed forces shall be ordered by the

    16 President of the Croatian Community of Herceg-Bosna.

    17 Therefore, the decision on mobilisation is within the

    18 hands of the President of this entity.

    19 Q. If I could now refer you to Articles 43 and 44, without

    20 reading them, so that we can move as quickly as

    21 possible, if you could just briefly explain those two

    22 Articles to the court?

    23 A. These articles are important because they clearly speak

    24 of the autonomous character of the creation community,

    25 because the units of the armed forces have their own

  48. 1 flag and coat of arms, which, as explained here, is

    2 described as the historic Croatian flag and it is

    3 described in detail in the Article.

    4 Q. If I could now take you to Article 63 of this decree,

    5 Dr. Pajic, this is a significant part of the decision and

    6 I wondered if you could explain that to the court,

    7 please.

    8 A. By this provision through Article 63 the provisions of

    9 the once valid law on All People's Defence are declared

    10 invalid. This was the law in the former Yugoslav

    11 Federation, the SFRY, as well as the provisions of the

    12 law on military service and that is those provisions

    13 which contravene this decree on the armed forces of the

    14 Croatian Community, which means that de jure as well the

    15 Croatian Community of Herceg-Bosna is breaking all ties

    16 with the former system of the Yugoslav People's Army.

    17 That is, I think, the substance of this Article, which

    18 was only to be expected in the transitional and final

    19 provisions of this degree.

    20 Q. Finally, Dr. Pajic, I know you have made clear that you

    21 are not a military expert, but your general impression

    22 of this document. Would you say this is a founding

    23 document of a well organised, well structured modern

    24 army? What is your views on this?

    25 MR. HAYMAN: The witness has stated he is not a military

  49. 1 expert and I submit --

    2 JUDGE JORDA: Excuse me, Mr. Hayman.

    3 MR. HAYMAN: I have an objection to the question.

    4 JUDGE JORDA: The witness has given an opinion. I think

    5 that it is the Prosecution that -- the Prosecution said

    6 that the witness was not an expert. You did say you

    7 were not a military expert, did you not?

    8 MR. CAYLEY: The witness said earlier, your Honour, that

    9 although he is an expert on constitutional matters, he

    10 is not specifically an expert on matters of armed

    11 forces. I'm simply asking him to give a general

    12 opinion on the structure of the document, whether it

    13 gives certain indices of organisation, control and

    14 command, which I feel he's perfectly entitled to do and

    15 is qualified to do.

    16 JUDGE JORDA: Yes. I cannot grant this -- accept this

    17 objection. The Prosecutor also repeats that the

    18 witness is not a military expert and simply feels that

    19 he is asking now -- he can give a general impression

    20 which is not a military expertise. Therefore I am

    21 going to overrule the objection.

    22 MR. CAYLEY: Please go ahead Dr. Pajic.

    23 A. I shall briefly repeat what I said in the introduction

    24 to the analysis of this decree. My impression from the

    25 legal terminology on which this decree is based is that

  50. 1 this is a consistent system of defence as conceived

    2 within the Croatian Community of Herceg-Bosna in all

    3 respects, in terms of the method of command, in terms of

    4 the clear principle of subordination within the armed

    5 force, in terms of responsibility, and, finally,

    6 something that may not be so noticeable at first glance

    7 is Article 62, which refers to the special rights of

    8 members of the armed forces of Croatian Community,

    9 saying that they are entitled to health care to

    10 retirement and disability insurance to child benefits

    11 and so on. Why do I consider this to be relevant?

    12 Because in the former Yugoslav people's army there was

    13 indeed a system which ensured a privileged position for

    14 the armed forces in the former Yugoslavia in the sense

    15 that members of the armed forces had their own

    16 separately organised health care service, special

    17 pensions that were calculated in a different way from

    18 those for the civilian population.

    19 Q. Thank you, Dr. Pajic. If I could now refer you to page

    20 24, which is the next decision, which is page 26 in the

    21 French translation, this is the decree on the taking

    22 over of material of the Yugoslav People' Army and the

    23 SSNO in the territory of Herceg-Bosna. Dr. Pajic, what

    24 exactly is this document and what is its purpose?

    25 A. The purpose of this decree is what happens frequently in

  51. 1 armed conflicts and was to be expected, that the

    2 Croatian Community would pass a decree of this kind

    3 early on, namely it appropriates the material of the JNA

    4 and the Federal Secretariat of National Defence of the

    5 former Yugoslavia, and I think the real word would be

    6 the expropriation of the property of the JNA and the

    7 Federal Secretariat of National Defence. I have no

    8 difficulty with such a decree in principle, but what is

    9 evident at first glance is that the Republic of

    10 Bosnia-Herzegovina has been excluded as a beneficiary of

    11 the resources of the JNA and the Federal Secretariat of

    12 National Defence. The Republic of Bosnia-Herzegovina

    13 is not mentioned at all as the only legitimate successor

    14 of the resources of the JNA. Therefore, this is direct

    15 expropriation of JNA material by the Croatian Community

    16 of Herceg-Bosna, bypassing entirely the legitimacy of

    17 Bosnia-Herzegovina as one of the Yugoslav republics that

    18 participated in the formation of that same JNA.

    19 Q. Is this an exercise of a State prerogative, this

    20 document or a State like prerogative?

    21 A. Yes, that is what it appears to be.

    22 Q. If I could now refer you to page 26 in the Croatian and

    23 English versions and page 28 in the French version, this

    24 is the decree on confiscation of property of the

    25 occupier. This is a very similar document, I believe,

  52. 1 to the last document that you have referred to. I

    2 wonder can you explain this document to the court?

    3 A. There is a certain degree of analogy between these two

    4 documents, but in this latter one it is the confiscation

    5 of the property of persons residing in countries which

    6 are defined as "occupiers" in relation to the Croatian

    7 community of Herceg-Bosna. It is stated explicitly

    8 here that:

    9 "Property will be confiscated of organisations and

    10 bodies of the former Federation", implying the Yugoslav

    11 Federation, "the property of enterprises and other legal

    12 entities located in Serbia and Montenegro".

    13 Then private persons, the physical entities who

    14 have the citizenship of Serbia and Montenegro and

    15 finally all those people who are nationals of

    16 Bosnia-Herzegovina but who sided with what is called

    17 "the occupier" in enemy activities. So this is a

    18 wide-ranging move of a state-like nature in which

    19 private property, because this is mostly private

    20 property of private persons, is being simply confiscated

    21 and, as the Article says, becomes the property of the

    22 Croatian Community of Herceg-Bosna.

    23 Q. Thank you. If I could refer you to page 27, which is

    24 page 29 in the French version of the translation, this

    25 is a decree on public enterprises in the Croatian

  53. 1 Community of Herceg-Bosna. Can you explain the purpose

    2 of this document and what its effect would have been?

    3 A. For those familiar with the latter day history of the

    4 economic system of the former Yugoslavia, it would be

    5 clear if I were to say that this decree is actually the

    6 ethisation of social property. I know it is difficult

    7 to explain these terms using international legal

    8 terminology, but what used to be social property, that

    9 is these public enterprises that existed in the former

    10 Yugoslavia, in this case in the Republic of

    11 Bosnia-Herzegovina, is now by decreeing about the State

    12 property of the Croatian Community of Herceg-Bosna, and

    13 this is being done -- let me cite a part of the Article:

    14 " ... in the interest of the economic and social

    15 development and the protection of the environment and

    16 natural resources of the Croatian and other peoples in

    17 the Croatian community of Herceg-Bosna".

    18 Why did I cite this? Because this is one of the

    19 few decrees among the documents that were placed at my

    20 disposal that makes no reference to war or the threat of

    21 war. So this is a State act of a peace time nature.

    22 By this act public enterprises have actually changed

    23 hands and become the property of the State. Of course

    24 "state" in quotation marks, but in any event an entity

    25 that calls itself the Croatian Community of

  54. 1 Herceg-Bosna, and, what is more, in Article 3 reference

    2 is made to the mode of management of public enterprises,

    3 and it says that:

    4 "Public enterprises shall be managed by a

    5 management board appointed by the Croatian Defence

    6 Council".

    7 Therefore another element that we recognise in

    8 this decree testifying to an absolute centralisation and

    9 monopoly over powers, not only political powers but also

    10 economic powers within the hands of the Croatian Defence

    11 Council.

    12 Let me also refer to the areas in which this

    13 ethnisation of social enterprises was done. The

    14 production, transmission and supply of electricity,

    15 water management, forestry, mining, post, telephone and

    16 telegraph services, the railways, road traffic, areas --

    17 information section, radio and television and special

    18 purpose industry, which traditionally in our language

    19 implies industry for wartime needs.

    20 Q. So is it correct to say, Dr. Pajic, that the HVO by this

    21 decision was beginning to control every realm of life

    22 within the territory it claimed?

    23 A. Certainly. This was a further step in terms of taking

    24 up this remaining territory which was not under the

    25 monopoly, so to speak, of the HVO.

  55. 1 Q. If I could now refer you to page 29, which is page 31 in

    2 the French version, this is a decree on the law of

    3 misdemeanours. We are now dealing with specifically

    4 judicial matters, matters of the court structure. Can

    5 you explain the effects of this decision to the court,

    6 please?

    7 A. When I was speaking until now about the HVO taking over

    8 the prerogatives of the legislative, administrative and

    9 even economic authority in the sense of authority in the

    10 economic sphere of life, I did not talk about the

    11 judicial reach. This, in my opinion, is the first

    12 document, the first decree, which shows that the

    13 judiciary function was taken over by the HVO too within

    14 the HZ H-B. It says clearly in Article 4 that the

    15 misdemeanours Chamber shall exercise all powers and

    16 duties of the Republic Magistrate Court, that is the

    17 Magistrate Court of the Republic of

    18 Bosnia-Herzegovina. So an autonomous system was being

    19 set up now of misdemeanours -- for misdemeanours in the

    20 Croatian Community of Herceg-Bosna.

    21 Q. Can I refer you to Article 6 of this decree? This deals

    22 with judicial appointments. Can you explain that

    23 Article to the court?

    24 A. This Article is interesting because for the first time

    25 decisions or rather enactments of appointment were not

  56. 1 passed by the HVO but rather the Presiding Judge and the

    2 judges in the misdemeanours Chamber shall, and I quote:

    3 " ... be appointed and relieved of duty by the

    4 head of the Defence department at the proposal of the

    5 head of justice and administrative department of the HZ

    6 H-B".

    7 This leads me to the conclusion that the various

    8 ministries or departments, so to speak, of the HVO which

    9 I pointed out I think in Article 20 of the decision on

    10 the establishment of the HVO as the supreme executive

    11 authority -- these lead to the conclusion that this

    12 system of responsibility in different fields by the HVO

    13 really worked in practice. So now a department or, if

    14 you wish, under quotation marks, a "Ministry",

    15 autonomously decides on appointing presiding judges and

    16 judges in the misdemeanours chamber in conjunction with

    17 the justice and administration department of the HZ

    18 H-B. So one can now really see that the HVO is working

    19 as a government, as a cabinet, and the various

    20 "ministries" discharge their duties within such a

    21 cabinet.

    22 Q. And both of the departments that you have referred to

    23 were controlled by the HVO; is that correct?

    24 A. Yes. They were actually parts. They are actually

    25 parts of the HVO as the supreme executive authority.

  57. 1 Q. So the HVO were appointing the judiciary within this

    2 entry, within the Croatian Community?

    3 A. Yes. Of course, these appointments go under the name of

    4 the HVO, but concrete decisions are actually passed by

    5 the head of a certain department of the HVO as part of

    6 the executive authority.

    7 Q. Can I refer you to Article 11 of this decision, please?

    8 Could you read that to the court?

    9 A. "The dinar amount prescribed by the law in misdemeanours

    10 shall be converted into Croatian Dinars to the same

    11 nominal amount".

    12 Q. So the fining system within this court structure was

    13 specifically referring to Croatian currency; is that

    14 correct?

    15 A. The fining system is related to a currency which is the

    16 national currency of the Republic of Croatia.

    17 Q. If I could now refer you to page 31 of your volume,

    18 that's page 31 in the English and in the Croatian

    19 version and page 33 in the French, this is a decree on

    20 the treatment of persons captured in armed fighting,

    21 could you explain this decision to the court?

    22 A. Again from the point of view of international

    23 humanitarian law formally and legally this is a welcome

    24 provision, because it speaks of the fact that:

    25 "Members of the JNA and the JNA Reserve Forces and

  58. 1 other persons captured in armed fighting against the

    2 Croatian Community of Herceg-Bosna shall be treated in

    3 accordance with the provisions of the Geneva Convention

    4 on the treatment of prisoners of war dated 12th August

    5 1949".

    6 Q. What is the effect of Article 2 of this decision?

    7 A. Article 2 of this decree implies actually that on the

    8 territory of the HZ H-B special locations where

    9 prisoners shall be kept would be set up. Special

    10 locations or centres where in accordance with the

    11 provisions of the Geneva conventions prisoners would be

    12 kept.

    13 Q. Does this decree make it clear who is in charge of these

    14 detention facilities or prisons?

    15 A. These prisons, as you say, are -- rather, responsibility

    16 for them is in the hands of the department for justice

    17 and administration, again in co-operation with the

    18 Defence department and the Department of the Interior.

    19 So to the best of my understanding three persons would

    20 have concurrent responsibility, that is the head of the

    21 Justice and Administration Department, the head of the

    22 Defence Department and the head of the Department of the

    23 Interior.

    24 Q. If I can refer you to Article 3, which I think goes as

    25 to control of these facilities, if you could explain

  59. 1 that provision to the court?

    2 A. This Article is quite clear. It consists of a few

    3 words only. It says that:

    4 "The Defence Department shall be in charge of the

    5 facilities stipulated in Article 2 of this decree".

    6 So the Defence Department, a special department of

    7 the HVO for defence matters, is responsible for the

    8 facilities where prisoners of war are being kept.

    9 Q. Thank you. If I could now refer you to page 32, that

    10 is page 32 in the Croatian and English versions and page

    11 34 in the French, if you could very briefly explain this

    12 decision to the court, and give your impressions and

    13 conclusions that you drew from this decision?

    14 A. In general terms I can say that this decision, together

    15 with the previous decision, or rather decree on armed

    16 forces of the HZ H-B, clearly speaks of a completed,

    17 surrounded system of armed forces, and members of these

    18 armed forces. This decision speaks of salaries and

    19 other remuneration for members of the armed forces. A

    20 certain scale is provided here in Croatian Dinars and

    21 also there are elements for paying out special benefits

    22 in the case of being wounded or in case members of the

    23 armed forces killed in action. So this is a detailed

    24 system which provides guarantees to the members of the

    25 armed forces that they would be paid for their service

  60. 1 in the armed forces, that they will have certain

    2 security in respect of being wounded, and that their

    3 family in case of their death would be entitled to a

    4 family pension, etc.

    5 Q. What degree of internal organisation does this indicate

    6 to you?

    7 A. Such a decision -- again I'm speaking on the basis of

    8 the principles involved -- this could only be passed in

    9 a consistent system of organisation, firm system of

    10 organisation.

    11 Q. If I could now refer you to page 34, and again if you

    12 could just give of a brief overview of this document and

    13 the conclusions which you drew from it, this is the

    14 decision on ranks, the awarding of ranks and promotion

    15 to higher rank. This is page 36 in the French version

    16 and page 34 in the Croatian and English version.

    17 A. Analogous to the previous decision this decision is also

    18 impressive in terms of its clarity. The elaboration of

    19 ranks, promotions, the system of promotions, the

    20 procedure according to which this is carried out in the

    21 armed forces of the HZ H-B.

    22 Q. Referring you specifically to Article 3, does it equate

    23 ranks in the old JNA to the new rank system in the HVO?

    24 A. Article 3 has a special function. It is supposed to

    25 make it possible to persons who had certain rank in the

  61. 1 Yugoslav people's army to keep the ranks they had in the

    2 armed forces of the HZ H-B. That is why this provision

    3 was adopted. This is a conversion table really. I

    4 think that that is the right English word for what we

    5 find in Article 3.

    6 Q. If I could now refer you to Article 7 of this decree, if

    7 you could just briefly explain particularly the first

    8 sentence of that Article to the court?

    9 A. The first sentence of Article 7 gives the right or

    10 authority to the President of the HZ H-B to award the

    11 rank of active or reserve officer in the armed forces at

    12 the proposal of the head of the Defence Department. In

    13 my opinion, as I already mentioned, I think, in

    14 connection with the previous decision, this shows that

    15 the President of the HZ H-B did have insight and

    16 probably had the opportunity of having continuous

    17 insight as far as appointments in the armed forces were

    18 concerned related to the officers corps of the HZ H-B.

    19 Q. Mr. President, we have come to the end of a document now

    20 and I wondered if you felt it was a convenient time to

    21 pause.

    22 JUDGE JORDA: Yes. I think this is a good time. We will

    23 complete our work right now. We only meet in the

    24 mornings this week up to and including Thursday. The

    25 courtroom is being used for another trial. We will

  62. 1 start tomorrow again at 10 o'clock in the morning. The

    2 hearing is adjourned.

    3 (1.00 pm)

    4 (Hearing adjourned until 10 o'clock tomorrow morning)

    5 --ooOoo--