Case No IT-95-14
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
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
22 MR. HARMON: Good morning, Mr. President and your Honours.
23 We will proceed. Mr. Cayley will examine the next
25 MR. CAYLEY: Good morning, Mr. President, your Honours,
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
25 MR. CAYLEY: Thank you, Mr. President.
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
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
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
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
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
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
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
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
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
25 The meaning of this first article in my view is to
1 round off a part of the territory of Bosnia-Herzegovina
2 into a whole, which would have certain qualities of a
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
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.
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
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
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
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
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
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
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
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
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
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
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.
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
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.
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
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
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
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
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
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
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
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:
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
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
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
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
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)
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
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
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
1 shall supervise the legality of the municipal HVO's
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
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.
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
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
24 May I specifically refer to a couple of articles?
25 Article 3 says that:
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
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
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
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
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
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,
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,
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
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
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
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
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
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".
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
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
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,
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
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
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
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,
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
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
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
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
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.
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,
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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)