Case No IT-95-14
1 Wednesday, 2nd July 1997
2 (10.00 am)
3 Dr. Zoran Pajic (continued)
4 Examined by Mr. Cayley
5 JUDGE JORDA: Please be seated. Please have the accused
6 brought in, Registrar.
7 (Accused enters court)
8 JUDGE JORDA: Does everybody hear? Does the Prosecution
9 hear? Does the Defence hear? Mr. Nobilo? Mr. Hayman?
10 Mr. Blaskic, do you hear me?
11 GENERAL BLASKIC: Good morning, your Honours. I hear you
12 well.
13 JUDGE JORDA: Mr. Cayley, do you hear?
14 MR.. CAYLEY: Yes, your Honour.
15 JUDGE JORDA: Good morning. Before I give you the floor,
16 Mr. Cayley, I would like to make a comment about a point
17 which is of great concern to this Trial Chamber, more
18 specifically to the presiding judge speaking to you.
19 I am referring to the translation problem.
20 I understand the difficulties experienced by the
21 translation service and can share their concerns as
22 well. Nonetheless the French language is one of the
23 working languages of this Tribunal. I do know that it
24 would be an absolutely Utopian situation if they only
25 had English, but unfortunately French is one of the
1 working languages at this Tribunal, and I am doing a lot
2 of work in English and making progress thanks to you.
3 Still, to speak more seriously about this issue, I think
4 that we must try to solve this problem. I know for you
5 this is a very difficult issue. For instance I can
6 point out to you that I have still not received a
7 translation into French. I still do not have a French
8 translation of one of the protective measures for the
9 witnesses that one of the parties suggested last week.
10 It is not a very long document, perhaps a page and a
11 half. I was able to read it thanks to the help from my
12 colleagues. I believe beyond the point of
13 understanding it myself I think it would be proper for
14 all documents to be translated into French. That is
15 the first point.
16 The second has to do with all of the documents.
17 I think that there is a significant amount of work, and
18 I'm convinced that we have to find an agreement.
19 I believe that thanks to the help of my colleagues I can
20 say to you there is a way of reaching an agreement.
21 Nonetheless this cannot be done without extra people
22 working in the French section in the translation service
23 at this Tribunal. I do not want to say anything else
24 about it, because we do have a trial here, but it is
25 part of the trial that the documents are communicated
1 properly. Perhaps we do not have to translate
2 everything, but once again I have to tell you we have to
3 come to an agreement. I want to find one. I ask you to
4 speak with the translation service and its chiefs so
5 next week we can have a small meeting in order to find
6 out a way to solve this problem and find out what can be
7 done, both in principle. There are certain things
8 which must be done as regards the principle beyond the
9 understanding of this judge, because the trials we are
10 conducting here are for history. In 20, 30 or 40 years
11 people have to be able to go back to the traces of the
12 Tadic, Blaskic or Celebici trial in both of the official
13 languages of this Tribunal. This has to do with moving
14 legal knowledge forward.
15 Also what is involved are the facts within this
16 trial that come out and the three judges must be able to
17 operate normally and starting with the very person
18 speaking to you, who is handicapped by being French but
19 can do nothing about it, and therefore must work in his
20 own language. Therefore, after having made this little
21 joke, I would like to take up things more seriously once
22 again. I can give you back the floor, Mr. Cayley, so
23 I think you can have once again Professor Pajic brought
24 in. Thank you.
25 MR.. CAYLEY: Mr. President, your Honours, learned counsel,
1 good morning. The Office of the Prosecutor,
2 Mr. President, fully appreciates your wishes in respect
3 of translations and indeed, as you say, they do have
4 historic and important consequences. Specifically in
5 request of the five items yesterday that were not fully
6 translated into the French language, I spoke with
7 Monsieur Gilbert of the translation unit. He is working
8 on those at the moment and hopefully you will have them
9 within a short period of time. I will, as you have
10 requested, make arrangements for a meeting so that these
11 problems can be solved. Lastly, I would like to
12 publicly say thank you to the translation unit for all
13 of the work they have done on these particular
14 documents. It has been a very difficult task, as the
15 language is highly technical. They have done an
16 extraordinarily good job. I would just like to take
17 this opportunity to thank him for that work.
18 The second matter, Mr. President, is another matter
19 of procedure, and that concerns exhibits. I would like
20 to now formally request before the witness is brought in
21 that certain items be admitted into evidence that the
22 Prosecutor did not request during the proceedings. If
23 there are no objections from the Defence, I can number
24 those items off, and I think the Registrar's officer is
25 aware of the documents I'm speaking of.
1 I would like admitted into evidence documents 36
2 A, B, C and D. Those are the original versions of the
3 Narodni lists. Item 38, A, B and C, which are
4 respectively the Serbo-Croat, the Croatian extract of
5 the documents selected by Dr. Pajic; the French extract
6 and the English extract.
7 JUDGE JORDA: Does the Defence agree?
8 MR.. HAYMAN: No objection, your Honour.
9 JUDGE JORDA: Very well. Therefore, we ask the Registrar
10 to have these documents numbered as requested by
11 Mr. Cayley. I give you have the floor again,
12 Mr. Cayley.
13 MR. CAYLEY: Thank you, Mr. President. One last matter.
14 The witness, Dr. Pajic, is expecting to leave this
15 evening. Now, the Office of the Prosecutor fully
16 respects my learned friend's right to cross-examine the
17 witness, as indeed is General Blaskic's right under the
18 Statute, but in that sense he wished me personally to
19 communicate that to you, that he would be expecting to
20 leave the Tribunal this evening for business in
21 London. With that, your Honour, and with your
22 permission, could I call the witness, please?
23 JUDGE JORDA: As regards the last point, I believe that the
24 Tribunal cannot make any commitments, because the
25 cross-examination will take place under whatever
1 conditions that the Defence wants. You were able to
2 ask as many questions as you like, and the Defence must
3 be able to do the same. We all hope that this will
4 allow Professor Pajic to leave this evening, but if he
5 cannot, I do not think we will do what we did for
6 another witness, who didn't begin, but this time I think
7 we have to conclude. That's the only thing I can say
8 as things stand now. Please have the Professor brought
9 in.
10 MR. CAYLEY: Thank you, Mr. President.
11 (Witness enters court)
12 JUDGE JORDA: Good morning, Professor. Do you hear me?
13 Have you rested up a bit and everything all right?
14 Fine. Then this morning you have a few more comments
15 to which you are being asked to respond, comments from
16 the Prosecution, and then the Defence will ask you some
17 questions. Mr. Cayley?
18 MR. CAYLEY: Thank you, Mr. President.
19 Dr. Pajic, we left off yesterday at the end of
20 yesterday's session with you discussing the final
21 documents in the extract which concern the decision of
22 the Constitutional Court in Sarajevo, and I stated
23 yesterday that you wished to make some concluding
24 remarks as a finish to your examination-in-chief. If
25 you could now go ahead and make your concluding remarks,
1 viewing all of the documents as a whole and employing
2 your expertise to explain to the judges as fully as you
3 can your overall view of these documents. Thank you,
4 Dr. Pajic?
5 A. (In interpretation): since my analysis covered a large
6 number of documents published in the Official Gazette
7 and a few documents that were not in that publication,
8 perhaps it might be useful for me to summarise my expert
9 opinion.
10 Regarding the methodology of this summary, let me
11 say that I shall try to be brief, and, secondly, I have
12 divided my conclusions into two parts. I will first
13 make four individual conclusions and end up with the
14 general conclusion regarding the normative activities of
15 the Croatian Community of Herceg-Bosna, which later
16 became the Croatian Republic of Herceg-Bosna.
17 My first conclusion of an individual nature is as
18 follows. A community of municipalities was formed
19 known as the Croatian Community of Herceg-Bosna and
20 gradually by its normative activities it acquired the
21 attributes of statehood. From the very beginning all
22 the documents of the HZ H-B insist on territorial
23 integrity and the Defence of territorial integrity as
24 one of the main attributes of statehood. All the
25 municipalities of HZ H-B are municipalities within the
1 territory of the sovereign Republic of
2 Bosnia-Herzegovina. However, The Republic of Bosnia
3 and Herzegovina in the course of the emergence of the
4 Croatian Community is systematically ignored as a
5 State. Its competencies are marginalised. Its
6 constitutional system is ignored, and the legislation of
7 the Republic of Bosnia-Herzegovina violated. In fact,
8 autonomous bodies of authority are established and an
9 independent legal order is built up of the Croatian
10 Community of Herceg-Bosna.
11 What is more, the Croatian Community of
12 Herceg-Bosna took over part of the frontier of
13 Bosnia-Herzegovina and regulated independently the
14 frontier regime which in formal and legal terms belongs
15 to the Republic of Bosnia and Herzegovina.
16 My second conclusion is as follows. Through all
17 the documents that I have analysed, like a thread one
18 notices the omnipresent role of the HVO, the Croatian
19 Defence Council, in all state affairs. May I recall
20 that the HVO was set up as the supreme body of defence
21 of the Croatian Community, but already in the first
22 document it acquired a decisive role in the Presidency
23 of the Croatian Community, which was defined as the
24 legislative body of the Croatian Community.
25 In this connection one immediately notices the
1 unity of functions held by one individual, that is the
2 President of the Croatian Community, who is at the same
3 time the President of the Croatian Defence Council.
4 The Croatian Defence Council is constituted as a supreme
5 executive and administrative authority, with the
6 characteristics of a government. The HVO covers the
7 departments of Defence, the Interior, the Economy,
8 Finance, Social Affairs, Justice an Administration
9 through appropriate departments headed by appointed
10 chiefs. Gradually the Croatian Defence Council
11 encompasses control over the functioning of the system
12 of the judiciary, primarily the Prosecutor's Offices and
13 the courts, the regular courts. It appoints and
14 relieves judges within that judicial system.
15 In brief, the Croatian Defence Council is
16 concentrating within its control the legislative,
17 administrative and executive powers. At the same time
18 the Croatian Defence Council preserves all the
19 prerogatives of a supreme defence body, and it is based
20 on a principle of subordination at the national level,
21 without any right of the municipalities to set up their
22 own bodies at municipal level.
23 My third conclusion is that the Defence of the
24 Croatian Community of Herceg-Bosna from the beginning
25 was entrusted to the Croatian Defence Council. The
1 Defence of the Croatian Community of Herceg-Bosna was
2 organised on the basis of the principle of the
3 participation of all citizens in defence. In the
4 decision that is I described over the past few days, a
5 system was elaborated whereby each citizen of the
6 Croatian community of Herceg-Bosna knows or can know
7 what his obligations are with respect to defence either
8 as a conscript, or if he comes under the obligation to
9 work, or if he has to contribute in financial or
10 material resources to the activities of defence. The
11 HVO is the absolute supervisor and holder and proprietor
12 of all the acquired material goods.
13 In this connection the entire production for the
14 needs of the military comes under the control of the
15 HVO, which also supervises the work of public
16 enterprises. The armed forces of the Croatian
17 Community are gradually set up through the documents
18 I have referred to as a legally founded structure, with
19 emphasis on the unity of command and subordination and
20 disciplinary responsibility, which is accompanied by a
21 system of military courts.
22 My fourth conclusion of this nature is that the
23 Croatian Community of Herceg-Bosna was established as a
24 national entity aspiring to round off a certain
25 territory, whether legitimately or not -- which I'm not
1 entering into because that is not my field of expertise
2 -- a territory that would correspond to the interests
3 of the Croatian people in this area.
4 In addition to all the institutions of the
5 Croatian Community of Herceg-Bosna, which later became
6 the Croatian Republic of Herceg-Bosna, the attribute of
7 "Croatian" is emphasised. Though at the moment it was
8 formed the Croatian Community of Herceg-Bosna in all the
9 30 municipalities enumerated in the first decision on
10 its establishment, there are members of other ethnic
11 groups, with the exception of four municipalities:
12 Posusje, Siroki Brijeg, Grude and Citluk, where
13 representatives of other ethnic groups are very few, in
14 all the other, that is in the 26 out of the 30
15 municipalities, there are inhabitants belonging to other
16 ethnic groups, Muslims and Serbs, or Muslims or Serbs,
17 and their share in the population varies. According to
18 the 1991 census, it varies from 72-82 per cent depending
19 on the municipalities.
20 However, in spite of this, all the regulations in
21 their wording, as well as in the rhetoric used,
22 implicitly exclude the non-Croat population from the
23 political life of the Croatian Community. The
24 institutions of the system of authority are constituted
25 in such a way that only representatives of the Croatian
1 people are represented. I must say in addition to all
2 this that the Croatian Community of Herceg-Bosna and
3 later the Croatian Republic of Herceg-Bosna did not pass
4 a single legal regulation that would guarantee the
5 rights of minorities in accordance with international
6 standards, and especially not of national religious and
7 ethnic and linguistic minorities. This is no
8 coincidence, because in some documents a general
9 readiness is expressed to accept and observe the Geneva
10 conventions and General international law.
11 Finally allow me to make a very general conclusion
12 in a few words. I have read and analysed a large number
13 of documents. I think that I had in total either at
14 home and in my offices both ten and 12 kilograms of
15 documents to study. I must say that, as a lawyer,
16 I immediately noticed one characteristic. These
17 documents, with very few exceptions, are the product of
18 highly skilled legal qualities. One immediately
19 notices a number of principles. First, the gradual
20 character of the normative activities; secondly, the
21 continuity in that normative activity; then also the
22 systematic nature of the regulations and decisions,
23 their consistency. I have indicated on several
24 occasions a few minor points where one notices any
25 contradictions. In brief, one clearly notices the
1 tendency to expand state prerogatives during 1992 and
2 1993, and something that impresses me in particular in
3 view of the fact that I know the conditions under which
4 the Croatian Community of Herceg-Bosna emerged, that is
5 conditions of more or less wartime environment,
6 depending on the time, is the comprehensiveness of these
7 normative activities.
8 I was frequently surprised to come across
9 documents of the following contents. Let me cite a few
10 as an illustration. For example, the adoption of the
11 decree on founding a Motoring Club of the Croatian
12 Community; a decree confirming the Statute of the
13 Motoring Club and on the appointment of the
14 secretary-general of the Motoring Club. These were all
15 published in the Official Gazette number 5 of 1992
16 signed by the President of the HVO. Then the decree on
17 the establishment and work of the University in Mostar,
18 which was also published in the Official Gazette number
19 6 of 1992, with a provision saying that the Chancellor
20 is responsible to the HVO.
21 Then in Official Gazette number 7 of 1992 a
22 decision on the appointment of the Deans of various
23 departments of the Mostar University. Then in the
24 Official Gazette number 8 of 1992 a decree on games, on
25 lotteries. Then on the foundation of the fire
1 brigades, again in the Official Gazette of 1993. Then
2 a decree on the foundation of the Geophysical Institute
3 in the Official Gazette Number 6 of 1993. I could list
4 many more examples, which are all illustrative of the
5 comprehensiveness of those normative activities and the
6 intention of the legislator to cover also social affairs
7 by specific legal regulations of the Croatian Community
8 of Herceg-Bosna.
9 Thank you, Mr. President, for your attention.
10 With that I complete my analysis.
11 JUDGE JORDA: Mr. Cayley, have you any other questions
12 before we give the floor to Mr. Hayman?
13 MR. CAYLEY: I have no further questions, your Honour. We
14 can offer the witness for cross-examination
15 continuity.
16 MR. HAYMAN: May I inform the court how we intend to
17 proceed?
18 JUDGE JORDA: Yes, of course.
19 MR. HAYMAN: Mr. Nobilo will commence the
20 cross-examination. I will also have a smaller number
21 of questions. I wanted to assure the Tribunal in
22 advance we will exercise the greatest care not to
23 duplicate questions, but for reasons of both linguistics
24 and subject matter, we feel it is important that we both
25 have the opportunity to ask questions.
1 Cross-examination by Mr. Nobilo.
2 JUDGE JORDA: Thank you, Mr. Hayman. The Tribunal has no
3 problem with that. Both of you represent the Defence
4 and you organise General Blaskic's defence as you intend
5 to do, as you like,, but of course, respecting the
6 conditions set by the Tribunal. Mr. Nobilo, the floor
7 is yours.
8 MR. NOBILO: Thank you, Mr. President, your Honours, learned
9 counsel. Dr. Pajic, my name is Anto Nobilo, defence
10 counsel of General Blaskic, and I would like to ask you
11 a few questions. Let us go back to the beginning of
12 your statement. We won't take so long, of course, but
13 your first assertion which I noticed was that for the
14 states of the European tradition and the former
15 Yugoslavia, it was characteristic to issue official
16 gazettes in which laws and other regulations are
17 published, and that that is one of the indications of
18 the statehood of Herceg-Bosna. Have I remembered well
19 your submission?
20 A. Basically yes.
21 Q. I should like to remind you, do you not recall that even
22 today and in the former Yugoslavia cities and
23 municipalities also had their official gazettes, where
24 city councils published their decisions and regulations
25 governing life in the towns; is that correct?
1 A. Yes.
2 Q. Therefore in view of this one could not claim that only
3 states had official gazettes?
4 A. That is true, but I was actually concentrating on the
5 contents of the legal regulations.
6 Q. Yes, but you spoke of the form, the existence of an
7 Official Gazette as a publication for official
8 documents, and I am now referring to this form, the
9 method of publication of regulations, and saying that
10 cities also have some forms, that is such official
11 gazettes?
12 A. Yes, that is correct.
13 Q. Let us go on. Then you said that the first decision on
14 the establishment of Herceg-Bosna was passed on 18th
15 December 1991, but that the war in Bosnia-Herzegovina
16 had still not started at the time?
17 A. Yes, that is correct.
18 Q. I should like to remind you that between 18th and 20th
19 September 1992, 10,000 reservists from Serbia and
20 Montenegro came to Bosnia-Herzegovina in the area of
21 Stoliz, Heliodom. They didn't enter the barracks, but
22 immediately took up positions in the field in the
23 direction of Neum and western Herzegovina, and those
24 were the first foreign troops in the beginning of the
25 invasion. Do you agree with that?
1 A. As far as my memory serves me, because we are now
2 talking about facts --
3 Q. Yes, but it was important to know what was the
4 environment within which certain documents were passed?
5 A. If I remember correctly, let me say the following.
6 First of all, I do not deny that even in that period
7 there was a certain pre-war psychosis in
8 Bosnia-Herzegovina.
9 Q. I myself was a witness of that.
10 A. And in Croatia it was already war.
11 MR. CAYLEY: Your Honour, Mr. President, could I make an
12 objection please? The witness must be given time to
13 actually answer the question, and at the moment Dr. Pajic
14 is trying to answer and as soon as he is, Mr. Nobilo is
15 actually talking over him.
16 JUDGE JORDA: I find this objection is well founded. Ask
17 your questions, take as long as you like to ask the
18 question, but then allow the witness to answer.
19 A. There was a war psychosis in Bosnia-Herzegovina even in
20 this period we are referring to now. On the other
21 hand, I'm not quite sure that I could agree with your
22 description of foreign troops, because at that time the
23 Yugoslav People's Army still existed in the territory of
24 the Republic of Bosnia-Herzegovina and as far as
25 I remember there was a regional command in Sarajevo of
1 the JNA at the time. I'm not going to enter into
2 discussions as to what they were preparing, but they
3 were co-operating with the legal authorities of the
4 Government of Bosnia-Herzegovina.
5 Q. But do you agree that it was visible that the war was in
6 the offing in Bosnia-Herzegovina?
7 A. I would agree with that. I myself made a public
8 statement somewhere in January 1992, saying that
9 I feared there would be war in Bosnia-Herzegovina, but
10 for various reasons and looking to the international
11 community too, we had hoped that the war would be
12 prevented.
13 Q. Do you perhaps remember that on 20th September 1991 the
14 village of Ravna was razed to the ground? Do you
15 remember that?
16 A. Yes. That was linked to the operations near Dubrovnik.
17 Q. But in the territory of Bosnia-Herzegovina?
18 A. Yes, the territory of Trebinje.
19 Q. I should like to ask is it for you normal somebody
20 should prepare for defence before war breaks out, or is
21 it better and more normal for them to prepare for
22 defence when the war actually begins?
23 A. I can only say if only we had prepared in time.
24 Q. So can we view this document as one of the ways -- I'm
25 not saying the only one -- to prepare for defence
1 against the aggressor?
2 A. No, I would not agree with you, because the decision to
3 establish the Croatian Community of Herceg-Bosna only
4 partially speaks of the need for defending the Croatian
5 Community. It doesn't explicitly say that an
6 aggression is being prepared or a war against The
7 Republic of Bosnia-Herzegovina.
8 Q. That is my problem. May I then draw your attention to
9 point two of the Prosecutor's file? Perhaps you could
10 look up those documents. It will be easier. Exhibit
11 38. I point to page 2. It is the decision
12 establishing the Croatian Community of Herceg-Bosna in
13 1991.
14 A. You are talking about the revised text?
15 Q. Yes.
16 A. The second one then.
17 Q. Perhaps if we follow the same numbers, it will be
18 easier. So when you were talking about this decision,
19 I think that you did not exactly indicate the reasons
20 for the establishment. Here they are explicitly
21 stated. I should like to read them to you and to hear
22 your comments. The reasons for the establishment of the
23 Croatian Community of Herceg-Bosna and it says:
24 "Faced with the ruthless aggression of the
25 Yugoslav Army and Chetniks against The Republic of
1 Bosnia-Herzegovina and The Republic of Croatia, with a
2 tremendous number of lives lost, with the suffering and
3 pain, with the fact that age-old Croatian territories
4 and goods are being coveted, with the destruction of the
5 Republic of Bosnia-Herzegovina and its legally elected
6 bodies, the Croatian people of Bosnia-Herzegovina in
7 these difficult moments of their history, etc., are
8 establishing the Croatian Community of Herceg-Bosna".
9 Can you comment on this? Do you accept that these
10 were the main reasons that are put here as the reasons
11 for the establishment of the Croatian Community?
12 A. Mr. Nobilo, you have read to me the preamble of a
13 decision that was passed on 3rd July 1992, when the war
14 in Bosnia-Herzegovina was well underway, but the
15 decision on the establishment of the Croatian Community
16 of Herceg-Bosna is stated 18th November 1991, and to it
17 is attached a short preamble, too, which differs in many
18 respects from the preamble that you will find in the
19 revised text. Maybe we can read it and we can again
20 see the reasons for the establishment of the community,
21 if you agree.
22 I'm talking about this sentence that you
23 emphasised. If we read this decision, noting the date,
24 3rd July 1992, then I quite agree with you that this
25 preamble is acceptable, that is faced with the ruthless
1 aggression of the Yugoslav army and Chetniks against The
2 Republic of Bosnia-Herzegovina and The Republic of
3 Croatia. However, the preamble corresponding to the text
4 of 18th, there is no reference to the ruthless
5 aggression to the Yugoslav Army.
6 Q. As I was saying the, Yugoslav army in Bosnia-Herzegovina
7 still existed, but if you look at the preamble of the
8 first document, you will see in the first sentence:
9 "At moments when the last Communist army in Europe
10 together with the Chetniks is threatening the survival
11 of the Croatian State and Croatian people",
12 which implies also the Croats in
13 Bosnia-Herzegovina. The Communist army is the JNA and
14 the Chetniks are the Chetniks. Does this also not
15 indicate the reason, only later on it is much clearer,
16 of course?
17 A. That is a matter of interpretation. I think your
18 interpretation is rather extensive, rather broad,
19 because if we are talking about threats to the survival
20 of the Croatian state and the Croatian people,
21 Bosnia-Herzegovina is not mentioned in that context.
22 It is later.
23 Q. But it says:
24 "We, the elected representatives of the Croatian
25 people in Bosnia and Herzegovina".
1 Not to dwell on this matter, do you agree or
2 disagree with me that the reason for the establishment
3 of this entity or whatever you like to call it, that the
4 main reason was the danger of war, the need to organise
5 defence of the territory which the Croats of
6 Bosnia-Herzegovina feel they are entitled to where they
7 live. Do you agree that that was the main reason?
8 A. I would agree, yes, to organise and prepare defence.
9 Q. Yes. So we have come to an agreement. I should now
10 like to ask you to recall what the Federal Government at
11 the end of 1991 -- when I say the Federal Government, I
12 am thinking of the Government of Bosnia-Herzegovina --
13 what did it do to prepare for defence? Did the Federal
14 Government protect its citizens, the citizens of
15 Bosnia-Herzegovina, against aggression?
16 A. You are asking me a question which I cannot answer on
17 the basis of these documents, you see. We could engage
18 in a discussion which would be reminiscent of
19 memoirs. This is a period five years ago, and I could
20 talk to you on the basis of my own memory. I was not a
21 member of the government of the Bosnia-Herzegovina.
22 MR. CAYLEY: I'm sorry to object again, Mr. President.
23 JUDGE JORDA: Mr. Cayley?
24 MR. CAYLEY: As you can see, Mr. Nobilo is covering
25 wide-ranging areas well outside the essence of the
1 testimony of the witness. Dr. Pajic came here to
2 testify upon the basis of the documents that are before
3 learned counsel for the Defence, that are before
4 yourselves. He was not brought here to testify on
5 these huge political events that were going on
6 Bosnia-Herzegovina at the time, and I would request that
7 Mr. Nobilo's cross-examination is limited to the
8 documents and nothing else.
9 JUDGE JORDA: Mr. Hayman, do you want to add something?
10 MR. HAYMAN: Your Honour, the direct examination at various
11 times went outside the documents and the context for
12 these events, to the extent this witness has personal
13 knowledge, and please recall this witness left Sarajevo
14 in 1992. He has some personal knowledge. I do not
15 believe there is going to be extensive questioning here
16 but some questioning, I submit, should be allowed.
17 JUDGE JORDA: I would like to consult with my colleagues
18 for a moment. (Pause) We are overruling the objection,
19 but we request that the Defence remain concise and to
20 focus more on the documents themselves. Thank you.
21 You may continue.
22 A. You do not have to repeat the question. I can answer.
23 On the reservation that I'm speaking truly only on
24 the basis of personal impressions, that I do not have in
25 my possession any documents from this domain of my
1 statement, I can say that the Defence of the Republic of
2 Bosnia and Herzegovina at the time when the war fully
3 broke out was highly impeded. The State territory was
4 fragmentised to a large extent. The communications
5 were broken off all over throughout The Republic of
6 Bosnia-Herzegovina, and then to the best of my knowledge
7 then in Sarajevo people started being involved in
8 self-organisations. Some areas were defended better
9 and some worse. I can only speak from my personal
10 experience in Sarajevo, which defended itself from
11 invasion. Whether this was done by the well-organised,
12 prepared-in-advance army of Bosnia-Herzegovina I do not
13 know, but it is for sure had there not been an organised
14 defence, Sarajevo would have fallen into the hands of
15 the Yugoslav People's Army or later the units that took
16 over the JNA armaments and equipment and held Sarajevo
17 to siege. One should not forget before the war broke
18 out -- whenever I speak of the beginning of the war,
19 please understand me; I mean April 1992 -- one should
20 not forget that considerably before that date in
21 Bosnia-Herzegovina the units of the United Nations armed
22 forces were deployed, UNPROFOR, and rightfully so or
23 less rightfully so a lot of people were hoping that
24 UNPROFOR would stop war breaking out in
25 Bosnia-Herzegovina and contribute to the preservation of
1 peace. Unfortunately all our hopes were in vain and
2 all circumstances point to the fact that it's difficult
3 to speak of a comprehensive defence of
4 Bosnia-Herzegovina. It was fragmentised. In some
5 places it was more successful, like in Tuzla, and in
6 some places less successful like in Western Herzegovina,
7 etc.
8 THE INTERPRETER: Microphone, please. Mr. Nobilo's
9 microphone is not on.
10 MR. NOBILO: I agree with you, but we should highlight one
11 thing. If it was necessary to have self-organisation,
12 is it not that a negation of a system of organisation of
13 the Federal Government or shortcomings in the Federal
14 Government itself. Would you agree with that?
15 A. Mr. Nobilo, if we are going to talk about the necessity
16 of defence only, we could agree on that, but I remind
17 you of Article 1 of the decision on establishing the
18 Croatian Community of Herceg-Bosna. No reference is
19 made to defence. It said that the Croatian Community
20 of Herceg-Bosna shall be established as a political,
21 cultural, economic and territorial integrity.
22 Q. But in the reasons for establishing it defence is truly
23 referred to, and you said later that the military acts
24 drawn up were very good from the legal point of view,
25 but let us go back to the fate of the man in the street
1 in Bosnia-Herzegovina and the defence claims that they
2 were not protected by the authorities and they should
3 have been protected by the authorities, your fate.
4 According to our information you have left Sarajevo some
5 time in mid-1992. Was that for reasons of security or
6 rather insecurity in terms of your life in Sarajevo?
7 A. I shared the fate of all the people of Sarajevo, so yes,
8 that is one of the reasons. Another reason is that my
9 activity by its very nature is that of a public figure,
10 an independent intellectual, and in Sarajevo I felt
11 rather isolated from the rest of the world.
12 Q. Exactly. So can we conclude on that basis that your
13 government did not give you enough security for your
14 work and communications?
15 A. Well, you know in conditions of war an individual should
16 not expect too much from his or her government.
17 Q. Everyone is the master of his fate. I agree with you
18 the Croatian people didn't expect that much and they
19 also took their destiny in their own hands. So let us
20 proceed.
21 The next assertion which I would like to dispute a
22 bit, that is that this organisation was not in keeping
23 with the constitution of Bosnia-Herzegovina, I would
24 agree with you on that, but could you explain at the
25 point in time when the Croatian Community of
1 Herceg-Bosna was established in November 1991 what the
2 constitution was still in force in Bosnia-Herzegovina?
3 A. That is a good question, because nearing the end of the
4 last regime in Bosnia-Herzegovina there was a confusion
5 in terms of the legal and constitutional situation. So
6 when it was certain that the former regime which was
7 headed by the former League of Communists of Yugoslavia
8 was losing the ground under its feet certain changes
9 were made, first of all in the constitutions of the
10 republics, and, of course, the constitution that was
11 valid then was the first constitution from 1974, both
12 the federal constitution and the republican
13 constitution. However, it was amended considerably in
14 1988 and 1989. I am speaking of the constitution of
15 The Republic of Bosnia-Herzegovina. Immediately upon
16 the establishment of the assembly of Bosnia-Herzegovina
17 after the first multi-party elections, work was done on
18 elaborating a new constitution. This took quite a bit
19 of time but at the beginning of 1991 numerous amendments
20 were adopted, and they legally sanctioned the existing
21 situation, namely a multi-party system, the composition
22 of the Parliament, the composition of the government and
23 also the composition of the Presidency as the collective
24 head of state.
25 So in response to your question I can say that the
1 old constitution from 1974 was in force with the
2 amendments from 1988, 1989, and 1991.
3 Q. I have understood that these amendments changed in a
4 sense -- touched upon the question of the multi-party
5 quality of the country, but in terms of Yugoslavia in
6 November 1991 Bosnia was still part of Yugoslavia a
7 federal unit of Yugoslavia?
8 A. I do not have a text of the constitution here but I am
9 almost certain that that was so for the simple reason
10 that The Republic of Bosnia-Herzegovina had not yet
11 become independent in an international legal sense of
12 the word. As you know, after the conclusions passed by
13 the Badinter Commission on behalf of the European
14 Community, then it was envisaged that the republics that
15 wished to attain independence on the territory of the
16 former Yugoslavia were supposed to carry out a
17 referendum on that. It is only after that referendum in
18 March 1992 that the first international recognitions of
19 Bosnia-Herzegovina started coming in as an independent
20 state.
21 Q. So we can conclude in terms of the first decision on
22 establishment in November 1991 and the second one in
23 July 1992 Bosnia was still within the framework of
24 Yugoslavia at least from the point of view of law and
25 constitution?
1 A. Not in July 1992.
2 Q. But in April? You said that Bosnia was internationally
3 recognised in the summer; right?
4 A. No. No. In the first week of April 1992 it was
5 recognised and it was -- it became a member of the
6 United Nations the same day as Croatia, on 22nd May
7 1992.
8 Q. What is the army according to this valid constitution --
9 was the army of Bosnia-Herzegovina and all other
10 republics of Yugoslavia legally, formally?
11 A. Legally, formally, the functioning army, so to speak,
12 was the Yugoslav people's army, with highlighted
13 elements of territorial defence because this was
14 important in the country.
15 Q. Who was in charge of the territorial defence in the case
16 of immediate threat of war or war?
17 A. In such cases JNA.
18 Q. Do we not have a constitutional paradox that the army of
19 the Republic of Bosnia-Herzegovina was in the state of
20 attacking Bosnia-Herzegovina as a State?
21 A. This question can only be understood in the context of
22 national divisions that --
23 Q. We are talking constitutionally and legally?
24 A. That came into being in Bosnia-Herzegovina, because
25 constitutionally and legally that was the status of the
1 JNA, as you have said. However, in fact, in the units
2 of the JNA a lot of the military started leaving the
3 units, those belonging to the Muslim and Croat ethnic
4 groups, as you know.
5 Q. Yes, that is true, but formally, legally, when the
6 fighting broke out in Bosnia-Herzegovina, the JNA was
7 the army of Bosnia-Herzegovina?
8 A. Right. Exactly.
9 Q. Do you not think that in such a constitutional paradox,
10 when an army attacks its own state, formally, legally
11 constitutionally -- we know what it was like in real
12 life -- one group of people or a group of
13 municipalities, whatever you wish, do you not think that
14 people or municipalities has the right on the basis of
15 self-defence to violate certain constitutional
16 provisions when we have such an anti-constitutional
17 situation. What is more important there, formal
18 violation of the constitution or the right to
19 self-defence?
20 MR. CAYLEY: Mr. President --
21 JUDGE JORDA: Mr. Nobilo, ask your question and then allow
22 the witness to answer, because you keep adding one
23 question to the next before the witness can answer. Is
24 your question different from mine, Mr. Cayley?
25 MR. CAYLEY: No, from President. I would simply echo what
1 you are saying. Mr. Nobilo must have respect for the
2 witness and allow him to answer the questions, otherwise
3 the process becomes ridiculous.
4 JUDGE JORDA: There is a technical complication here. You
5 are speaking very quickly. Interpreters are going as
6 best they can, but at some point while you are
7 concluding your question, the witness is answering, and
8 it is not really very convenient. I think it would be
9 simpler in order to help the work of the judges and the
10 work of the interpreters to ask your question, allow the
11 witness to answer, and then continue asking further
12 questions.
13 MR. NOBILO: Thank you, and I accept the objections that
14 were made. However, one thing I cannot accept, that
15 I do not show due respect to the expert witness.
16 I think that we're having a fine conversation.
17 You were in the process of replying, were you not?
18 A. Before I give a resolute answer to your question what is
19 the priority, I have to remind you of the context in
20 which all of this was happening. It is quite clear
21 that the peoples of Bosnia-Herzegovina are seeking ways
22 of defending themselves from aggression. However,
23 I wish to remind you that at the same time when we are
24 talking about this decision, one version and the other,
25 accelerated work is being done in the Government of
1 Bosnia-Herzegovina in Sarajevo on negotiations for the
2 JNA to leave Bosnia-Herzegovina. Active participation
3 is taken in these negotiations by Mr. Jerko Dojko,
4 Minister of Defence, who was nominated to this post as
5 the candidate of the political party of the Croatian
6 Democratic Union. I know him personally, and that is
7 why I have such detailed information. So preparations
8 are underway for the evacuation of the JNA, that is the
9 terminology that was used then, from the territory of
10 Bosnia-Herzegovina, and that is the delicate point in
11 time when at the same time the army of Bosnia and
12 Herzegovina was in the process of being established, and
13 if you remember then, General Sebir -- I can't remember
14 his first name -- was appointed commander of the General
15 staff.
16 Q. Yes, but you didn't answer whether the violation of the
17 constitution or the right to self-defence are more
18 important. What is the basic right?
19 A. That is an academic question. I agree with you that
20 the right to self-defence is a basic right.
21 Q. I also wish to draw your attention to another thing.
22 You have spoken in detail about the decision on
23 establishing the Croatian Community of Herceg-Bosna.
24 That is page 2, point two, but perhaps you did not
25 emphasise Article 5 fully. I wish to draw your
1 attention to that and read it out to you:
2 "The community shall respect the democratically
3 elected bodies of authorities of the Republic of
4 Bosnia-Herzegovina so long as the state of
5 Bosnia-Herzegovina remains independent from the former
6 or any future Yugoslavia"?
7 A. Thank you for having reminded me of this provision.
8 I think it is important for interpreting the overall
9 aspirations of the Croatian Community of Herceg-Bosna.
10 This provision truly says that the community shall
11 respect the democratically elected Government of
12 Bosnia-Herzegovina as long as the State of
13 Bosnia-Herzegovina remains independent from the former
14 or any future Yugoslavia. This is a provision of a
15 conditional nature, I would say, conditional nature, but
16 a condition which was counted upon, but it was never
17 truly met, because you would agree with me that in the
18 dramatic events that followed, Bosnia and Herzegovina
19 got out of Yugoslavia and so far it has not entered a
20 future Yugoslavia.
21 Q. Exactly, and this territory is still in
22 Bosnia-Herzegovina until the present day?
23 A. Yes.
24 Q. Okay. So I go on. Also you asserted that the
25 decision on page 2, the definite text on the
1 establishment of the Croatian Community of Herceg-Bosna
2 in relation to the first decision on establishing the
3 Croatian Community of Herceg-Bosna goes a step further
4 in terms of emphasising elements of statehood. So
5 I ask you what was the situation like in the military
6 sense in September 1992 or July 1992? Although you
7 already replied to that in comparison to 1992, I am not
8 asking you for details. Worse or better?
9 A. It was worse.
10 Q. Now I wish to draw your attention to page 4 of point
11 two, evidence 38. We have a decision of the Croatian
12 Defence Council, an important decision I would agree
13 with you. So --
14 JUDGE JORDA: For the Tribunal, specifically point out
15 which document you are referring to.
16 MR. NOBILO: This is document number 2 of the Prosecutor's
17 evidence, page 4. Perhaps in the French translation it
18 is different, but in English and in Croatian it is
19 page 4.
20 JUDGE JORDA: Thank you.
21 MR. NOBILO: When speaking of that decision, I think that
22 you omitted the preamble, so I ask you for your comment
23 after I read it:
24 "Pursuant to Article 7 of the decision
25 establishing Croatian Community of Herceg-Bosna, the
1 Presidency of the Croatian Community of Herceg-Bosna" --
2 now this is what I wish to highlight -- "faced with
3 aggression in the territories of the Croatian
4 communities of Herceg-Bosna and the fact that the
5 Croatian people have been left unprotected, aware of the
6 impotence of the legal authorities of the Republic of
7 Bosnia-Herzegovina, in particular the disintegration of
8 its defence system, at its emergency session of
9 8th April 1992 issues the following ...", etc., etc.
10 Could you comment on that?
11 A. What is missing, lacking here in this preamble, if you
12 are asking me for my opinion, is the following.
13 I would expect from the point of view of the Croatian
14 Community of Herceg-Bosna to express the assessment that
15 this is aggression on the territory of all of
16 Bosnia-Herzegovina. As you know very well from the
17 census in 1991, the members of the Croatian people live
18 throughout the territory of Bosnia-Herzegovina, not only
19 the 30-odd municipalities included in the Croatian
20 Community of Herceg-Bosna. That is why I believe that
21 there is this shortcoming here.
22 Q. All right, but do you accept the rest, that these were
23 the main reasons why the HVO was established?
24 A. From the point of view of defence, yes.
25 Q. Now we are reaching a key point in your expert opinion,
1 and I think that we have to pay attention to that and
2 spend some more time on that. This Croatian defence
3 council which is established as the supreme defence body
4 of the Croatian people, is it of civilian or military
5 nature? Is it an army or is it a civilian
6 organisation? Can you define that according to this
7 document?
8 A. I think that it is still premature to establish such a
9 definition on the basis of this document only and one or
10 two or three Articles. However, it is important to
11 recall something that I've said probably over these last
12 few days, that in Article 2 it is not only said that the
13 Croatian people will be defended, but also the sovereign
14 space of the Croatian Community of Herceg-Bosna. In my
15 opinion, the sovereign space or territorial integrity is
16 a far more concrete notion as far as statehood is
17 concerned than the interests of a particular national or
18 ethnic group.
19 Q. I agree with you, but I also wish to draw your attention
20 to the fact that in Article 2 reference is not only made
21 to the protection of the Croatian people, but also other
22 peoples in the community who live on the territory of
23 the community. So it's not only protection of the
24 Croat people?
25 A. Yes. Yes. This definition is clear. This is the
1 protection of the sovereignty of the space of the
2 Croatian Community of Herceg-Bosna.
3 Q. I can agree to that but let us leave that aside. Can
4 you tell me whether this document is sufficient for you
5 or not to say whether this is an army, a military or a
6 civilian organ?
7 A. According to this decision, it is a civilian authority.
8 Q. Thank you. Let us go on. Our next page, page 5. We
9 come to the statutory decision on the temporary
10 organisation of executive authority and administration
11 in the territory of the Croatian Community of
12 Herceg-Bosna. You have said generally that the HVO as
13 a military structure comes to head the Croatian
14 Community of Herceg-Bosna and in a way this military
15 structure governs the Croatian Community of
16 Herceg-Bosna. Did I understand you correctly?
17 A. The Croatian Defence Council as a defence counsel.
18 Q. There is a difference involved. It is a defence
19 structure. Is it a military structure or can it be a
20 civilian defence structure?
21 A. It can be a civilian defence structure in view of the
22 fact how the units were established and the municipal
23 HVOs, how they were established. This was a military
24 organisation after all. You know that very well,
25 because this was the organisation of the defence of the
1 Croatian people on the Croatian Community of
2 Herceg-Bosna.
3 Q. So you believe that the establishment of the HVO in the
4 municipalities was basically a military structure and on
5 that basis you draw the conclusion that the HVO was a
6 military structure?
7 A. You see on the basis of these documents at the very
8 outset the HVO is clearly defined as a defence
9 structure, and it is said invariably that it is the
10 supreme body of the Defence of the Croat people of the
11 Croatian Community of Herceg-Bosna.
12 Q. I'm speaking about the first document, the supreme
13 defence body. However, you said according to that
14 document it was a civilian structure after all. Then
15 you said that the HVO in the municipalities was
16 basically a military structure?
17 A. Yes. I can tell you from my personal experience that in
18 certain municipalities in Sarajevo HVO units were
19 established where people in uniform appeared.
20 Q. Dr. Pajic, we who lived there are all aware of it, and we
21 know it, and even people on the outside have been
22 informed. Military units and the executive and
23 administrative authority of Herceg-Bosna used the same
24 name, but it is not the same thing, and you have
25 asserted a different thing here. I draw your attention
1 to the statutory decision of the municipal
2 authorities. You did not choose that document in your
3 compilation. I can have it translated later and
4 submitted as evidence. I can quote it to you now. In
5 your translations it is also there. With your
6 permission, you could have a look at it?
7 JUDGE JORDA: Has this already been submitted as evidence?
8 It is already part of the trial?
9 MR. NOBILO: Yes, it was submitted but it was not
10 translated.
11 JUDGE JORDA: Yes, all right.
12 MR. NOBILO: 36 E.
13 MR. HAYMAN: A. It is 36 A, page 9.
14 JUDGE JORDA: The Professor would like to make a comment.
15 A. Mr. President, I referred to this statutory decision that
16 Mr. Nobilo is referring to on municipal authorities.
17 I have it here in my volume, statutory decision on
18 municipal executive authorities and administrative
19 bodies. May 15th, 1992.
20 MR. NOBILO: I'm sorry. So it's page 9. Article 1.
21 Article 1 defines that executive authority, I repeat
22 executive authority, that falls within the rights and
23 obligations of the municipalities, and we know what the
24 municipalities and cities did, shall be exercised by the
25 municipal Croatian Defence Council. Therefore, isn't
1 the municipal Croatian Defence Council a civilian
2 structure, after all, because if you go on further you
3 can read the entire statutory decision on page 9. It
4 is obvious that this is a municipal executive body,
5 which simply has a different name. Do you agree with
6 that?
7 A. Yes, I agree with that.
8 Q. So it is a civilian structure?
9 A. Yes, it is a civilian structure.
10 Q. So from in point of view the HVO is a civilian
11 structure?
12 A. Yes, in a sense it is of a civilian structure.
13 JUDGE JORDA: Mr. Nobilo, I think this is the time you take
14 a break. For the sake of understanding, I insist we
15 must take into account the work of the interpreters.
16 You both speak the same language but I think for all of
17 us using the interpretation it is very complicated.
18 You have to make it clear what is the question and what
19 is the answer. I believe that we can now take a break
20 and we will resume in fifteen minutes at 11.30.
21 (11.15 am)
22 (Short break)
23 (11.30 am)
24 JUDGE JORDA: The hearing can now resume. Have the
25 accused brought in and have the witness brought in as
1 well, please.
2 (Accused re-enters court)
3 (Witness re-enters court)
4 JUDGE JORDA: Mr. Cayley?
5 MR. CAYLEY: Mr. President, it is a simple point and a matter
6 that has been raised by the translation unit. Because
7 Mr. Nobilo, and I'm sure it is not deliberate, is not
8 allowing the witness to always answer the question
9 before he begins with another question, the translation
10 is just running into itself and the transcript is not
11 very well. So they have asked if he could pause
12 between actually the witness answering the question and
13 him asking another question, because otherwise the whole
14 thing becomes uncontrollable.
15 JUDGE JORDA: Judge Riad, would like to make a commentary.
16 JUDGE RIAD: I follow the translation and it is difficult
17 to know, because it is the same voice, so sometimes we
18 think it is the continuation. So perhaps the
19 interpreter can say "question", "answer", so we know it
20 is the answer. It is the same voice and the same tone.
21 JUDGE JORDA: I will allow myself to intervene for a
22 second. In the French transcript frequently one says
23 "question", "answer". The difficulty that the
24 Prosecutor is pointing out and I did as well stems from
25 two facts. Mr. Nobilo or Mr. Hayman or Mr. Cayley himself
1 here talking about Serbo-Croat, there has to be a little
2 bit of time because theoretically even if we can
3 congratulate the great skill of our interpreters, there
4 is some time lag. Therefore, the distinction has to be
5 made between question and answer. They have tried very
6 hard this morning. The interpreters have put in
7 question and answer. Mr. Nobilo, please be careful to
8 be more disciplined. I know you are very much taken by
9 your subject. You have to show some discipline. The
10 question raised by the Prosecutor is a good one. The
11 transcript has to reflect the difference between the
12 questions and the answers. Based on that and the
13 indications given by Judge Riad, we can now go on.
14 Mr. Nobilo, I give you the floor once again.
15 MR. NOBILO: Thank you. Of course, it takes a little time
16 to adjust to this multi-lingual environment, but I'll do
17 my best.
18 Dr. Pajic, I think we ended with the conclusion --
19 please correct me if I'm wrong -- that the municipal
20 HVOs were actually civilian organs of authority?
21 A. In formal and legal terms yes, but in the context of the
22 overall defence preparations certainly the HVO later on
23 assumes certain functions. As we can see from the
24 documents, certain decisions at the national level are
25 signed by the President of the HVO relative to military
1 matters.
2 Q. That is correct, but you probably remember that in the
3 former Yugoslavia in the municipalities there were
4 defence secretariats. There was a Secretariat of the
5 Interior. Were these civilian or military or police
6 structures?
7 A. They were organs of the administration, therefore
8 civilian. Let me try and make a pause before providing
9 the answer. That division was not reflected in the
10 legal documents. We used the following terminology:
11 administrative organs of authority, military organs,
12 legislative organs. We did not have that kind of a
13 division in the legal documents.
14 Q. But when you say administrative bodies of authority,
15 that is not a military body?
16 A. That is correct, but in the context of the overall
17 organisation of the HVO I insist that the HVO did have
18 definite military competencies. I repeat, and I have
19 indicated repeatedly, that all decisions relative to the
20 defence of the country were signed by the President of
21 the HVO and later on the head of the Defence Department
22 of the HVO.
23 Q. I agree with you, but the question is: is he a civilian
24 or a military man, because, of course, the civilian
25 structure also has certain competencies with respect to
1 defence. We will come to that, but what is essential is
2 that a civilian structure or a military.
3 A. The persons I have mentioned, as far as I know, were
4 civilians.
5 Q. Dr. Pajic, let me try once again to take you back to page
6 5 of document number 2.
7 JUDGE JORDA: It is true that in the French interpretation
8 people -- the interpreter is saying "question",
9 "answer", but in the English interpretation we do not
10 hear the words "question", "answer". If the English
11 booth could make that extra effort, it would be very
12 much appreciated. Mr. Nobilo, take up again, please.
13 MR. NOBILO: I should like to take you back to exhibit 38,
14 item 3, page 5, the statutory decision on the temporary
15 organisation of executive authority. Article 1, is it
16 according to you a definition of the HVO?
17 A. Article 1 in my opinion defines the competencies of the
18 HVO in the area of the executive and administrative
19 competencies.
20 Q. Is that at the same time a definition of the HVO as a
21 body?
22 A. I would agree, yes, it is to a considerable extent.
23 Q. What does "to a considerable extent" mean? Is the HVO
24 something outside the executive and the administration?
25 A. Here is why I have some reservation. You will remember
1 from my analysis that the HVO participates in the
2 Presidency which is defined as a legislative body.
3 Then also you will see in later documents all documents
4 relative to the establishment of the armed forces, the
5 structure of the armed forces, were signed by the
6 President of the HVO and in that respect the authorities
7 of the HVO, the definition of the HVO is far broader
8 than simply to say that it is a body of executive
9 authority and administration in the territory of the
10 Croatian communities of Herceg-Bosna.
11 Q. I agree with you that the HVO has certain legislative
12 powers, but as far as military powers are concerned,
13 they emanate from Article 20, where the Defence
14 Department is established as a part of the executive
15 authority. Article 20 speaks about several departments
16 and is the Defence Department in this article still a
17 civilian or a military department?
18 A. The Defence Department is a civilian structure of the
19 executive and administrative authority.
20 Q. That is correct. Therefore, if we summarise all that
21 you have said now regarding the nature of the HVO, can
22 we conclude from that that the HVO, as well as the HVO
23 members who were within the Presidency of the Croatian
24 Community of Herceg-Bosna, represent the civilian
25 structure rather than the military, and that there was
1 also the army, an armed force, bearing the same name,
2 but which is not identical with the civilian HVO?
3 A. I'm afraid I do not understand your question. I think
4 it is of a rather speculative nature. We're trying to
5 do guesswork regarding what is civilian and what is
6 military.
7 Q. Maybe you didn't understand me. Let me repeat
8 myself. The HVO, as it is defined by the statutory
9 decision on the temporary composition of executive
10 authority, you agreed that it was a civilian body. You
11 also agreed that the municipal HVO was a civilian body,
12 and yesterday you asserted that the HVO was a military
13 body, and that the army through HVO representatives was
14 in the highest level leadership, that is in the
15 Presidency, of the Croatian Community of Herceg-Bosna.
16 These are two different conclusions on two different
17 days?
18 A. I think that the interpretation of what I said is too
19 broad. I did not say that the army was a component
20 part of the Presidency, and if you claim that I did,
21 then we'll have to look at the transcript.
22 MR. CAYLEY: Mr. President.
23 JUDGE JORDA: Mr. Cayley?
24 MR. CAYLEY: I'm sorry to interrupt again. I have made
25 this point to counsel, to Mr. Hayman. Mr. Nobilo is
1 representing matters that the witness has said, and yet
2 he doesn't refer to where in the transcript from
3 yesterday these statements were made. It may be that
4 there is a slight misrepresentation of what the witness
5 actually stated yesterday, and I think now Dr. Pajic is
6 actually indicating that. Mr. Nobilo must actually give
7 some foundation to what he is saying.
8 JUDGE JORDA: I agree. Mr. Nobilo, you are citing sources
9 of the witness himself. Cite them properly, please.
10 Yesterday, -- for example, you said that yesterday he
11 said at this or this point this or that.
12 MR. NOBILO: Mr. President, I agree, but I have made a
13 summary, something that emerges from his statement, so
14 it is rather difficult, and I asked him whether that was
15 correct, and only if he answers that it is, then I go
16 on. If he says it is not correct, then I accept it.
17 So I do not see any problem here. I'm not citing a
18 particular statement, but what emerges from several
19 pages of his statement. If he says that
20 I misunderstood him, then I accept and we can go on.
21 JUDGE JORDA: I understand what you are saying, but in
22 general terms you know you are particularly demanding,
23 as is your colleague. When a source is cited by the
24 Prosecutor, you always ask: "Where does the source come
25 from? How does it come to be here?" I also have a
1 comment to make. I do understand that in your manner
2 of asking questions you refer to what the witness said
3 and you expect the witness to say: "I did or didn't say
4 something". The witness did answer if -- so the
5 question has to do with interpretation. The Presiding
6 Judge tends to think that yes, you should be more
7 specific as to the place or places in yesterday's
8 statement which appear subject to interpretation, which
9 would be different to that from the witness. This is
10 what I would like to say. Now go on but keep these
11 observations in mind and be more specific.
12 MR. NOBILO: I agree, but when we refer to sources that are
13 not here, as opposed to sources that are here, who can
14 confirm or reject what we are saying, and that is where
15 the difference occurs, but I think as far as the nature
16 of the HVO, we have sufficiently elucidated the
17 question, and I'm satisfied. So I would now like you
18 to look at page 12 of this same document and to look at
19 the decree on the armed forces of the Croatian Community
20 of Herceg-Bosna.
21 Within the framework of that decree please examine
22 Article 61 on page 23. Page 23, Article 61, which
23 says:
24 "Members of the armed forces of the HZ H-B shall
25 be held responsible for criminal, property and petty
1 offences as stipulated by the regulations in force until
2 the relevant bodies of the HZ H-B decide otherwise".
3 On the basis of this Article I'm asking you the
4 following question: General Blaskic, as the commander
5 of the operative zone, on the basis of these
6 regulations, what authority did he have in relation to
7 his soldiers if that soldier commits a criminal offence.
8 JUDGE JORDA: Could you ask your question in more general
9 terms, please? I am sorry to intervene, but not at one
10 time yesterday was General Blaskic's responsibility
11 invoked. If we understand correctly, you are speaking
12 about the constitution, general, diplomatic, structural
13 problems related to the HVO. Suddenly for purposes
14 everybody understands you are bringing in the personal
15 situation of General Blaskic. Personally I think that
16 you must reformulate your question, ask it in more
17 general terms. What is the criminal and material
18 responsibility of those who are the leaders of the
19 structure in question. Thank you.
20 MR. NOBILO: I was doing this simply to make myself clear.
21 I was thinking of a military commander in the Croatian
22 Community of Herceg-Bosna. What authority did he have
23 with respect to the criminal proceedings against his
24 troops, because here it says that members of the armed
25 forces shall be held responsible for criminal, property
1 and other offences, as stipulated by regulations in
2 force. Those regulations are the criminal code of the
3 former SFRY and the criminal code of
4 Bosnia-Herzegovina. Therefore, if you are familiar
5 with these two codes, can you say what would be the
6 responsibility of any military commander according to
7 those regulations in force, if you can? This is in the
8 area of criminal law. I realise that?
9 A. The regulations you mention were not the subject of my
10 analysis.
11 Q. Thank you. I should like to draw your attention to
12 Article 23 of this same document. On page 17 of
13 document 2 of Exhibit 38. This Article says:
14 "Members of the armed forces shall observe in all
15 circumstances when conducting covert operations the
16 international laws of war on the humane treatment of the
17 wounded or captured enemy, on the protection of the
18 population and other provisions of these laws".
19 Yesterday or the day before you alleged that this
20 was typical of states. It seems to me that these are
21 instructions addressed to the fighters of a particular
22 military unit. Why would that have to be typical only
23 of states? Any military unit or formation surely is
24 obliged to respect international humanitarian law, and
25 therefore the legislator is also duty bound to make such
1 an obligation upon the military?
2 A. Could you please formulate the question?
3 Q. This obligation, is it the exclusive right of a state or
4 can it be stipulated by any armed formation regarding
5 its members?
6 A. It is one thing when an armed formation or the
7 leadership of that armed formation reminds its troops of
8 the general rules of international humanitarian law, and
9 it is quite another matter when an entity in its legal
10 documents provides a stipulation rather like a formal
11 statement saying that members of the armed forces shall
12 observe the international laws of war. This provision,
13 in my view, is a highly generalised one, and it is
14 customary, rather like a solemn declaration of a state.
15 Q. Can it not be interpreted as obliging the troops to
16 behave accordingly? Can it not be interpreted in that
17 way?
18 A. I can interpret your question as implying that the
19 Presidency of the Croatian Community of Herceg-Bosna
20 which passed this decree is assuming, on the one hand, a
21 commitment in relation to international law, and on the
22 other hand, internally it commits itself to the
23 observation of international humanitarian law by its
24 armed forces.
25 Q. Will you please now look at page 29, point two of
1 Exhibit 38, which speaks about the enforcement of the
2 law on misdemeanours? Actually you asserted that this
3 was the beginning of the take-over of judicial powers; is
4 that correct?
5 A. That is what I said, and that is what I believe.
6 Q. I should like to remind you that in the former
7 Yugoslavia, as well as in Croatia and in
8 Bosnia-Herzegovina, misdemeanour magistrates were part
9 of the administrative authorities and not part of the
10 judiciary in the organisational sense, the method of
11 election and so on. Am I right?
12 A. Yes, as far as the former Yugoslavia is concerned you
13 are right.
14 Q. Were there any new regulations passed in Bosnia
15 regarding magistrates?
16 A. I'm not aware of it.
17 Q. Therefore, the magistrate judges were not part of the
18 judiciary?
19 A. I can only interpret your question as questioning my
20 allegation that this was the first step towards the
21 take-over of the judicial function. I was very precise
22 in what I said. I did not claim that the system of
23 magistrate courts was subordinated to the judiciary
24 generally speaking but there is no doubt that this is an
25 indication of the implementation for the responsibility
1 of misdemeanours by the Croatian Community and the
2 take-over of all the competence of the republican
3 magistrate judges.
4 Q. But you agree with me that the magistrate, including The
5 Republic and magistrates for misdemeanours, were part
6 not of the judiciary but of the administrative
7 authorities?
8 A. Yes, I agree with that.
9 Q. A further point I should like to draw your attention to
10 is the introduction of the Croatian Dinar in
11 Herceg-Bosna. I should like to ask you: at the
12 beginning of 1992 what currency was in use in
13 Bosnia-Herzegovina?
14 A. The currency in use at the time this decree was passed
15 and that is July 1992 in Bosnia-Herzegovina, the Dinar
16 was the currency in use, which all of us called the
17 Bosnian Dinar. True enough for your information no new
18 bank notes were issued, but the old Yugoslav Dinar bank
19 notes were used, which the authorities of the new
20 Republic of Bosnia-Herzegovina had restamped. Maybe
21 it's not easy to translate this. Anyway, they placed
22 on it a stamp, a seal of the government of the Republic
23 of Bosnia-Herzegovina for practical reasons, that it may
24 be used in payments in the Republic of
25 Bosnia-Herzegovina.
1 Q. From which month of 1992, if you know?
2 A. I really cannot recall.
3 Q. If the Yugoslav bank notes were essentially in use, it
4 was easy to carry out some sort of monetary blows
5 because war was imminent, and wasn't there a real danger
6 of that happening, and didn't that happen? Let us
7 remember the monetary incursions made during the
8 Government of Anto Markovic --
9 MR. CAYLEY: I am sorry to interrupt, but learned counsel is
10 making a speech. He's not asking a question.
11 JUDGE JORDA: Just a moment, please. I didn't catch the
12 interpretation here. Could we have the interpretation,
13 please? Would you shorten your questions, please, make
14 better summaries of what you have to say and then we'll
15 hear your question.
16 MR. NOBILO: Yes.
17 The events took place a long time ago and it takes
18 a little time to recall them. My question is were
19 there any monetary incursions by Serbia in relation to
20 the rest of Yugoslavia into the budget and was there
21 such a danger in evidence at the time?
22 A. You are asking me to present certain assumptions,
23 whether something could have happened in the area of
24 financial and monetary policies. My answer may be
25 positive or negative, but I have no grounds to claim one
1 or the other. In answer to your previous question,
2 after trying to recall those events, I can assure the
3 court that the new Dinar of Bosnia-Herzegovina, though
4 using the old bank notes, which was changed slightly
5 with this official seal of the Republic of
6 Bosnia-Herzegovina, was in circulation quite certainly
7 before this decree was passed in July 1992, because I
8 was in Sarajevo at the time and I was using that
9 currency, the so-called new Dinar.
10 Q. Thank you. May I draw your attention to page 53 of the
11 same document? At the same time I should like to ask
12 you to take a look at page 59 as well, namely if you can
13 recall, the decision regarding establishing the criteria
14 for defining confidential defence data on page 53 and
15 the rules on the military ID card on page 59, in
16 reference to these two documents, you said that they
17 represented evidence of the functioning of a system of
18 administration. Is that correct? Am I interpreting
19 you correctly?
20 A. Mr. President, I find it difficult to quote myself and to
21 answer with precision this question, what is probably
22 already -- can be found in the transcript.
23 JUDGE JORDA: We are not going to refer to the transcript
24 every time, otherwise we would never get to the end.
25 The Defence is simply asking you a question, having
1 first said: "Am I interpreting correctly and do you
2 agree?" If you do or you do not -- if you do agree with
3 the interpretation that was made, then you should
4 answer, and you can say: "I don't remember". You can
5 say what you like, but the question is clear.
6 A. I remember what I said. I remember what my conclusion
7 was, and I can repeat it on the basis of the documents
8 I have before me, because my position on this has not
9 changed, but whether the formulation of my assertion is
10 literally word by word what I said is not important,
11 I suppose.
12 My assessment is that the system is functioning in
13 practice, but the system of delegation of authority, or
14 rather the functioning of the HVO as a government, as a
15 cabinet with certain departments responsible for certain
16 areas, and I established this on the basis of the fact
17 that both of these documents you are referring to were
18 signed now not by the President of the HVO, the
19 President of the government, the "Prime Minister" but by
20 the head of the appropriate department, the Defence
21 Department in this case.
22 Q. This quantity of information or the facts that you have
23 at your disposal surely is not sufficient for you to
24 come to the conclusion that the system is functioning in
25 practice?
1 A. My conclusion is based on the fact that the head of the
2 Defence Department passes or signs -- has signed two
3 very important documents. These are not insignificant
4 documents. They are documents on the secrecy of
5 documents and on military ID cards. There is no need
6 to recall here in the court how important classified
7 information is in the armed forces, and how important a
8 military ID card is whereby one establishes the identity
9 of a member of the armed forces, and that is what my
10 opinion was based on.
11 Under other conditions, if we were talking about
12 minor decisions, then certainly your comment would be
13 justified.
14 Q. But do not you see a difference between the definition
15 that the system is functioning in practice and the fact
16 that the appropriate documents have been passed? The
17 fact that necessary documents were passed need not
18 necessarily mean that the system is being implemented in
19 practice. Would you agree with this way of thinking?
20 A. My allegation is that the system on which the HVO is
21 based as an organ of authority did function in
22 practice. It delegates authority not only on the basis
23 of Article 20 but also in the practical implementation
24 of that authority. This system of departmental
25 activity of the HVO is functioning in practice,
1 otherwise these documents would still be signed by the
2 President of the HVO.
3 Q. It is my submission that on the basis of the fact three,
4 four or ten documents have been passed signed by the
5 head of a department need not lead to the conclusion --
6 MR. CAYLEY: Mr. President, defence counsel is making
7 submissions to the court. He cannot make submissions
8 during the cross-examination of a witness.
9 JUDGE JORDA: Mr. Nobilo, I would like to tell you for the
10 last time, either you make rapid interpretations and ask
11 the questions, but you cannot argue here. You are
12 acting as if it was six months from now. At that time
13 you can have any interpretation or opinion you want.
14 Right now you must ask the question to the witness. He
15 will answer. If you say: "I think this and do you
16 agree", all right, but you cannot conduct yourself as
17 you are. I want to tell you now for the last time.
18 MR. NOBILO: I am just trying to initiate a discussion and
19 to obtain an answer. I'm not making any firm
20 submissions, but I can put the question differently.
21 Dr. Pajic, you are talking about a system
22 functioning in practice. Please look to see when the
23 key decisions were passed. On page 12 you find the
24 decree on the armed forces. When was it passed? What
25 date?
1 A. July 3rd, 1992.
2 Q. Very good. When was the decision on the establishment
3 of criteria for defining confidential data on page 53
4 through page 58 passed?
5 A. On 3rd July 1992. With reference -- allow me to add --
6 with reference to Article 10 of the previous decree on
7 the armed forces of HZ H-B.
8 Q. That is correct. When were the Rules on military ID
9 cards on page 59 passed?
10 A. Also on July 3rd, 1992.
11 Q. When was Bruno Stojic appointed head of the department?
12 You have that document on page 66. The person who
13 signed these documents, when was he appointed?
14 A. May 3rd, 1992 -- sorry, sorry. 3rd July 1992. July
15 3rd, 1992.
16 Q. Therefore, are you still claiming that the system was
17 functioning in practice and all these documents were
18 passed in the same day, maybe with a few minutes'
19 difference?
20 A. Yes, I do claim, and I repeat that a system of
21 delegation of authority was functioning in practice
22 within the framework of the HVO.
23 Q. Let us now go on to document 3 of Exhibit 38, page 3 of
24 that document, document 3 of exhibit number 38. We are
25 talking here about the District Military Prosecutors'
1 offices. Up to then, up to the adoption of this
2 document, the military prosecutors' offices were part of
3 which organisation? Which organisation did the District
4 Military Prosecutors' office belong to?
5 A. I did not examine earlier documents on the basis of
6 which I could answer this question, but I assume,
7 considering the overall organisation of the state, that
8 the District Military Prosecutors' offices were part
9 either of the secretariat of the Interior, the
10 secretariat of the Defence or the JNA.
11 Q. According to this decree, what was the nature of
12 Military Prosecutors' Offices in terms of the time-span
13 that they cover, and where is this indicated?
14 A. In the title it is stated that District Military
15 Prosecutors' offices in times of war or the immediate
16 threat of war.
17 Q. Who is the Military Prosecutor responsible to a military
18 or a civilian within the HZ H-B?
19 A. According to Article 4 the District Military Prosecutor
20 is responsible for his work to the Presidency of the HZ
21 H-B.
22 Q. The civilian or military structure?
23 A. By definition it is the legislative body of the Croatian
24 Community of Herceg-Bosna, but in answer to your
25 question, the Presidency is a civilian body. However,
1 this answer would have to be qualified by the
2 composition of the Presidency, which included the HVO,
3 which we have already discussed.
4 Q. Please look at document 4 of Exhibit 38, page 6, the
5 decision on border crossings. Before this decision,
6 that is 12th November 1992, do you know who controlled
7 the border crossings in effect, in reality?
8 A. I do not have personal knowledge, because at the time
9 I did not use any of the listed border crossings, but
10 being familiar with the competence of control of border
11 crossings, those border crossings were controlled on the
12 one side by the police of The Republic of Croatia and on
13 the other by the police of the Republic of
14 Bosnia-Herzegovina.
15 Q. In 1992, after the formation of the Croatian Community
16 of Herceg-Bosna?
17 A. I thought you were asking me of the period that preceded
18 this.
19 MR. CAYLEY: Please, Mr. President, the witness must be
20 allowed to answer the questions. Just because counsel
21 disagrees with what he is actually saying, he can't
22 simply keep saying. "No, no, no,".
23 JUDGE JORDA: Professor, would you please answer the
24 question?
25 A. According to, this the decision on border crossings with
1 The Republic of Croatia Article 3, it says that:
2 "The safety of goods and passengers at border
3 crossings shall be ensured by the police of the Ministry
4 of the Interior and the military police".
5 Q. I am asking you before this decree was passed and after
6 the establishment of the Croatian Community of
7 Herceg-Bosna, who actually had control of these border
8 crossings?
9 A. I can only assume that they were the appropriate bodies
10 of the Croatian Community of Herceg-Bosna.
11 Q. Do you know? Do you know whether the government in
12 Sarajevo or rather the bodies of Bosnia-Herzegovina, did
13 they control any single border crossing of
14 Bosnia-Herzegovina in 1992 and 1993?
15 A. They did, as far as their possibilities allowed.
16 Q. What does that mean?
17 A. It means that there was a war and that in view of that
18 it was difficult to maintain normal control of border
19 crossings at all times and at all places.
20 Q. I am insisting. Did the authorities of Bosnia and
21 Herzegovina and its government control a single border
22 crossing of Bosnia-Herzegovina at that time?
23 A. I must say again that you are asking me questions which
24 imply that I must answer from personal knowledge. I
25 had no personal knowledge regarding the work of the
1 government of the Republic of Bosnia-Herzegovina. I
2 was not a member or an employee of any state body.
3 Therefore, I can only speak on the basis of incidental
4 information that I heard from people who were travelling
5 at the time, or if I personally had had occasion to see
6 for myself what the situation was at the border
7 crossing.
8 On the basis of the documents that I had at my
9 disposal for this expert opinion, I cannot answer that
10 question.
11 Q. Well, that is fine. Let me now ask you some general
12 questions regarding these decisions that you have
13 analysed. Correct me again if I'm wrong so we do not
14 have to go back to the transcript again. You asserted
15 that in certain decisions, in certain decisions, the
16 name "Bosnia-Herzegovina" is included, namely the
17 Croatian Community of Herceg-Bosna is part of
18 Bosnia-Herzegovina. Is it in certain documents only or
19 all documents, those that you analysed?
20 A. When replying to this question I must make a distinction
21 between mentioning The Republic of Herceg-Bosna in the
22 preamble of a certain decision, which was very rare.
23 The Republic of Bosnia-Herzegovina in most decisions was
24 not mentioned in the preamble. However, in most
25 decisions the name of the Republic of Bosnia-Herzegovina
1 appears next to the signature of the decision in most
2 decisions in such a way as follows. First it says The
3 Republic of Bosnia-Herzegovina. Then in the copies
4 I have in the Croatian language, it is underlined. The
5 letters are highlighted "Croatian Community of
6 Herceg-Bosna" and underneath" Croatian Defence Council".
7 Q. The decisions that you studied, all of them, are they of
8 a permanent nature or of a temporary nature?
9 A. Some decisions are of a temporary nature and some of a
10 permanent nature, because by accident I have this file
11 opened to show the document decision on border crossings
12 with The Republic of Croatia. It does not include the
13 provision that this is of a temporary nature, so my
14 conclusion would be that this decision is of a permanent
15 nature.
16 Q. This decision, which is an exception, I draw your
17 attention to the preamble, where one speaks of the
18 temporary organisation of executive authority. Does
19 that also imply temporary validity of this document,
20 this decision, which was reached?
21 A. Mr. Nobilo, I presented my analysis and expertise on this
22 document on the basis of all the documents that were
23 made available to me. I did not read the documents one
24 by one and then reached a special decision on the basis
25 of each and every document. My conclusions are based
1 on continuity. If you look at the overall normative
2 activity of the Croatian Community of Herceg-Bosna and
3 later the Croatian Republic of Herceg-Bosna, you will
4 see that there is a tendency which moves from a
5 temporary organisation of executive authority towards
6 permanent organisation of executive authority.
7 Obviously there is a tendency moving from a Croatian
8 Community of Herceg-Bosna to a Croatian Republic of
9 Herceg-Bosna. In that way I believe that your
10 interpretation of this preamble, that because this is
11 the temporary organisation of executive authority that
12 all decisions are temporary too, is too broad an
13 interpretation.
14 Q. Thank you. At this point I'm concentrating only on the
15 decisions, and if we would move from one decision to
16 another, what is your opinion on this basis? Are most
17 of these decisions temporary or permanent, the decisions
18 as enactments?
19 A. By definition the decisions -- I repeat by definition
20 the decisions that are related to the war and the
21 immediate danger of war are of a temporary nature,
22 because, thank God, war does not go on forever. So
23 I do not want to confuse the two and draw a conclusion
24 on that basis, that all decisions are of a temporary
25 nature.
1 Q. Also I would like to put a general question, which is
2 not related to a specific decision, namely what was the
3 basis for the people who founded the Croatian Community
4 of Herceg-Bosna for passing this decision? We said the
5 reasons were the war. What was the law or the right
6 upon which they based the right to establish such a
7 community. I do not know if I've been clear?
8 A. You haven't been clear enough, but in response to your
9 question I can only quote Article 1 of the decision on
10 the establishment of the Croatian Community of
11 Herceg-Bosna. I quote:
12 "The Croatian Community of Herceg-Bosna is
13 established as the political, cultural, economic and
14 territorial integrity".
15 Q. Exactly?
16 A. So the reason was to establish a separate political,
17 cultural, economic and territorial entity.
18 Q. That is a fundamental provision but that is not a
19 reason. One of the reasons, if we quote this on page 2
20 of document 2 of Exhibit 38, we can find the
21 unacceptability of a unitary model in multi-national
22 communities, multi-ethnic communities, and proceeding
23 from the constitution of the Republic of
24 Bosnia-Herzegovina under which Bosnia-Herzegovina was
25 founded as a community of three constituent people:
1 Croats, Muslims and Serbs, is that perhaps a basis on
2 the basis of which they exercised the right to this kind
3 of establishment?
4 A. I do not understand your question, because you mentioned
5 two contradictory quotations from the preamble. One
6 says that The Republic of Bosnia and Herzegovina is a
7 unitary state. Tell me what line it is, please?
8 Q. 1, 2, 3, 4 ... unitary 6 model. In the first line
9 pursuant to the constitution of The Republic of
10 Bosnia-Herzegovina?
11 A. In my opinion these are two contradictory quotes from
12 the preamble, because if Bosnia-Herzegovina was
13 established as a community of three constituent, namely
14 equitable peoples, Croats, Muslims and Serbs, then the
15 other assertion is contradictory, that it was a unitary
16 state. Then it is the question of interpretation of
17 those who passed this decision.
18 Q. What is your opinion: the last constitution in force in
19 Bosnia-Herzegovina in 1991/1992, what was the model,
20 unitary, federal, within Bosnia-Herzegovina? ?
21 A. The model of organisation of the state of the Republic
22 of Bosnia-Herzegovina was the model of unitary
23 organisation, but I do not give this a pejorative
24 meaning. I wish to say that Bosnia-Herzegovina was not
25 a decentralised state in the sense of consisting of
1 constituent states so that it would be a federation, but
2 I wish to remind the court of another thing, that in
3 1991, after the elections in November 1990,
4 Bosnia-Herzegovina was given full legitimacy as the
5 state of three constituent peoples, whose national
6 political parties won a majority in the elections,
7 specifically the Croatian Democratic Union, the
8 political party of the Croat people in
9 Bosnia-Herzegovina; the Party of Democratic Action, the
10 party of the Muslim people in Bosnia-Herzegovina, and
11 the Serbian Democratic Party, the party of the Serbian
12 people in Bosnia-Herzegovina, and on the basis of these
13 elections at the end of 1990 a Coalition Government of
14 these three partners who won majority in Parliament was
15 established, that is to say that from the point of view
16 of internal law and constitutional law the equal rights
17 of the constituent peoples Bosnia-Herzegovina was
18 reiterated, and I wish to remind you of an amendment
19 from 1991. In the Parliament of Bosnia-Herzegovina a
20 special mechanism was set up for bringing into question
21 all those laws for which any ethnic group presented in
22 Parliament would claim that it jeopardises their
23 national interests.
24 Q. According to the Dayton constitution -- I imagine that,
25 of course, due to the nature of your work, you are
1 familiar with it -- is The Republic of
2 Bosnia-Herzegovina a unitary or federal state?
3 A. I do not want to initiate an academic debate on that
4 here, but according to the Dayton accords Bosnia and
5 Herzegovina denies definition, because it is a state
6 consisting of two entities. Bosnia and Herzegovina
7 itself is not called a republic any longer, because in
8 Article 1 of the Dayton agreement or the Dayton
9 constitution it is said that The Republic of
10 Bosnia-Herzegovina will continue its legal existence as
11 Bosnia-Herzegovina and that it shall consist of two
12 entries, out of which one is called Republika Srpska and
13 the other is called the Federation of
14 Bosnia-Herzegovina. Therefore, you have a very strange
15 legal situation whereby there is a state which consists
16 of one republic and of one federation. Again, I'm
17 sorry. I do not want to go into an academic debate
18 now, but I just want to show the extent to which this
19 notion has not been defined.
20 Q. At any rate it's not unitary. I wish to draw your
21 attention to document 7, page 7, too. So document 7,
22 page 7 speaks of the flag and the coat of arms. The
23 coat of arms and the flag. Let us define it
24 immediately. Is it a permanent or a temporary
25 document?
1 A. The decree is valid in times of war or immediate threat
2 of war.
3 Q. You highlighted this example as an example of elements
4 of statehood, and I ask you at that time whether Bosnia
5 and Herzegovina had a flag of its own, and does it have
6 a flag today, a federal flag?
7 A. In November 1992 -- accidentally this happens to be the
8 month when this decree was passed -- in November 1992
9 I attended a conference in New York and in front of the
10 UN building I saw the flag of Bosnia-Herzegovina flying.
11 Q. I'm asking you as a Professor of law whether the
12 constitution and law establish what the flag of
13 Bosnia-Herzegovina is then in 1992 or today?
14 A. The constitution of Bosnia and Herzegovina, the definite
15 text from 1993, stipulates the flag of
16 Bosnia-Herzegovina. This flag was decided upon
17 previously by the amendments to that constitution, but
18 I cannot tell you exactly when that was, but I emphasise
19 once again, because you are asking me, from the point of
20 view of international law, the flag of a state is that
21 state which is internationally recognised, and not to go
22 now into any kind of subjective discussion, that is the
23 flag that I found in front of the United Nations
24 building in New York.
25 Q. Is that flag accepted today, recognised today in a legal
1 and formal sense?
2 A. It is well-known that the Dayton agreement did not
3 decide on that, and negotiations are still being held
4 between the two entities or three peoples
5 Bosnia-Herzegovina on establishing a common flag.
6 Q. The flag and coat of arms is what you highlighted as a
7 characteristic of statehood. Do you think that this
8 right to a coat of arms and flag exclusively belongs to
9 a state, or can other organisations also have a coat of
10 arms and a flag?
11 A. Of course non-state entities can also have a flag, but,
12 as I explained yesterday or the day before yesterday in
13 one of the answers put to me by one of the honourable
14 judges, it is customary, and I believe in certain states
15 it is regulated by law, too, if a regional flag is flown
16 or a city flag or a provincial flag on official
17 occasions the State flag is always flown in addition to
18 that.
19 Q. Was there such a law in Bosnia-Herzegovina?
20 A. Bosnia-Herzegovina never recognised the flag of the
21 Croatian Community of Herceg-Bosna. I recall the
22 decision of the Constitutional Court of
23 Bosnia-Herzegovina from 1992, when all of these
24 regulations were declared anti-constitutional. So
25 Bosnia-Herzegovina never expressed its views on the flag
1 of the Croatian Community of Herceg-Bosna.
2 Q. Please move on to Document 8 of 38, pages 1 and 2, where
3 reference is made to military --
4 A. The page, please?
5 Q. The first page and the second page. That is already
6 Official Gazette number 2.
7 Military industry is referred to here, industry
8 for special purposes, as you mentioned before. Before
9 this decree was passed, from a formal, legal point of
10 view, who was the owner of the military industry?
11 A. The problem of ownership in the former Yugoslavia from
12 the point of view of modern legal terminology well-known
13 throughout the world is rather difficult to define.
14 You know that there was always this contradiction
15 between social ownership, private ownership. Social
16 ownership from a legal point of view was very difficult
17 to compare to any category of ownership and property
18 existing in a democratic system. Therefore, it is hard
19 for me to answer your question.
20 Q. I shall re-word it, re-phrase it. Who managed the
21 military industry?
22 A. The military industry was managed by the administrative
23 organs in charge of defence.
24 Q. Of the republic or the federation?
25 A. This is not a subject matter in which I'm an expert, so
1 I do not want to go into that.
2 Q. Please let us move on to document 9 of Exhibit 38, and
3 I wish to draw your attention to page 2, the decree on
4 the application of the law and regular courts. So page
5 2, document 9. As usual, I ask the question: is this
6 a temporary or permanent decree -- sorry. I'm hurrying
7 again?
8 A. The decree was passed to be valid in times of immediate
9 threat of war or in wartime.
10 Q. The next question. If you are aware of this, in 1992,
11 1993 and 1994 how were judges elected in the territory
12 of Bosnia-Herzegovina, if you are familiar with that?
13 A. I'm not familiar with that.
14 Q. This decree, does it basically speak of anything else
15 except the appointment of judges?
16 A. This decree is characteristic for me, because it speaks
17 of the right of the Presidency of the Croatian Community
18 of Herceg-Bosna to establish and abolish courts; also
19 that the Croatian Defence Council decides on the number
20 of judges and lay judges, and finally, that the
21 Presidency of the HZ H-B elects and recalls judges and
22 lay judges.
23 Q. Please let us move on to document 10 of Exhibit 38, page
24 6. That is the decree on border crossing. If you
25 allow me --
1 MR. HAYMAN: May we have a moment, your Honour.
2 JUDGE JORDA: Excuse me?
3 MR. HAYMAN: We have a translation problem with respect to
4 the pagination, and I would like to make Mr. Nobilo aware
5 of it so perhaps the English translation is consistent
6 with the pagination of the documents.
7 JUDGE JORDA: Registrar, I was on 10, the decree of 26th
8 February 1993, having to do with border crossing. Is
9 that what you are talking about, Mr. Hayman?
10 MR. HAYMAN: Yes. It is just that the English translation
11 is resulting on pages that are beyond the length of the
12 document. So there's some misunderstanding or
13 miscommunication between Mr. Nobilo and the translator,
14 and I would like to alert him to it.
15 MR. CAYLEY: Your Honour, the reason for the confusion is
16 actually because Mr. Nobilo is actually referring to the
17 volume number rather than the page number, but frankly
18 it doesn't really make any difference because he is also
19 referring to the number of the document, which is quite
20 clear. For example, on this document, he refers to
21 page 6. It is, in fact, page 122, but it really makes
22 no difference, apart from the clarity, which I perfectly
23 accept.
24 JUDGE JORDA: Yes, that's right. Yes, I agree with the
25 Prosecutor. I have been getting along this way for
1 quite a while now, because I think there is a certain
2 degree of ambiguity, but I'm getting along even that
3 much better because it is a decree that wasn't even
4 translated into French. So ask your question.
5 MR. NOBILO: I do not have that number of pages. I have
6 the original page, so I'm trying to identify the page
7 concerned in each exhibit. So now we are on document
8 10, original page 6, the decree on border crossing. In
9 this context I would like to read Article 2 and would
10 you kindly comment on that? I do not think you
11 commented on that and I think it is important. So
12 Article 2:
13 "The border area shall consist of a part of the
14 territory of the Republic of Bosnia-Herzegovina
15 hereinafter referred to as "HB H" within the Croatian
16 Community of Herceg-Bosna, hereinafter referred to as HZ
17 H-B, including the mainland, river, lakes and seas along
18 the borderline, that is a 100 metre wide belt".
19 Can you put that in the context of your comment?
20 A. My comment was that this decree actually referring to
21 the border between The Republic of Bosnia-Herzegovina --
22 the border between The Republic of Bosnia-Herzegovina
23 and The Republic of Croatia is the area that is actually
24 being referred to here -- is taken over by the Croatian
25 Community of Herceg-Bosna, because Article 7 says
1 clearly:
2 "The HVO HZ H-B shall designate the international
3 border crossings and the local border crossings".
4 So in that context it seemed to me that this
5 Article, too, was there actually pro forma in this
6 decree, and that effectively in terms of establishing
7 the true border crossing regime, all the competence
8 falls within the jurisdiction of the HVO of the HZ H-B.
9 Q. I agree as far as jurisdiction is concerned, but why
10 don't you interpret it bona fide? The border of the HZ
11 H-B towards Croatia, isn't that at the same time the
12 border towards The Republic of Croatia and
13 Bosnia-Herzegovina?
14 A. That is so.
15 Q. Thank you. Article 12 was also extensively discussed on
16 the next page. I would like to read it out:
17 "A citizen in the Republic of Bosnia-Herzegovina
18 carrying weapons and ammunition into or out of the HZ
19 H-B shall report the weapons and ammunition to the
20 border police or the military police at the state
21 border".
22 I will immediately read Article 13, too, where it
23 says:
24 "Foreign citizens shall report the weapons and
25 ammunition they carry with them to the border police or
1 military police upon crossing of the border. Foreign
2 citizens may bring into the HZ H-B side weapons and
3 ammunition for these weapons provided they have an
4 authorisation for them from the relevant organs of the
5 state whose citizens they are".
6 Kindly interpret these two articles. Who is a
7 foreigner and who is a citizen of the Republic of
8 Bosnia-Herzegovina?
9 A. You mean the HZ H-B?
10 Q. No. I mean who is a foreigner when crossing a border?
11 For example, in the Croatian Community of Herceg-Bosna,
12 who is treated as a foreigner and who is treated as a
13 citizen of the Republic of Bosnia-Herzegovina, because
14 we only have two categories. We don't have any
15 citizens of HZ H-B. So how do you interpret Articles
16 12 and 13 in relation to the existence of a citizen of
17 the Republic of Bosnia-Herzegovina and the category of
18 foreigner?
19 A. I explained yesterday that this provision implicitly --
20 I repeat this provision implicitly says that a citizen
21 of the Republic of Bosnia-Herzegovina on the territory
22 of the Croatian Community of Herceg-Bosna is treated as
23 a foreigner. Although this is not explicitly said,
24 this is implicitly said. Why? Because paragraph 2 of
25 Article 12 requires for persons from paragraph 1 too,
1 that is a citizen of the Republic of Bosnia-Herzegovina,
2 approval of the competent body of HVO HZ H-B. So from
3 the point of view of authorisation, a foreigner and a
4 citizen of The Republic of Bosnia-Herzegovina have to
5 have authorisation for carrying such a weapon across the
6 border.
7 Q. Isn't that only natural, because we are talking about
8 weapons, not a normal border crossing? That is one
9 question. The second question is: do you not notice
10 that there is not a third category, for example citizens
11 of the HZ H-B; only two categories, the citizen of
12 Bosnia-Herzegovina and a foreigner. One excludes the
13 other. How can you say --
14 MR. CAYLEY: Mr. President, I'm sorry to intervene again, but
15 learned counsel is asking one question after another.
16 The witness is not allowed to answer. He may wish to
17 establish a point. He may be hearing answers he
18 doesn't like, but he must allow the witness to actually
19 answer the question.
20 JUDGE JORDA: You must be concerned by the fact that time
21 is moving along quickly. First, ask the first
22 question. Sometimes you even answer instead of the
23 witness, which is, of course, your right, but do allow
24 him to answer as well. This gives me the opportunity
25 to set the schedule for the rest of the
1 cross-examination. Ask your first question first and
2 then your second.
3 MR. NOBILO: I try to move as fast as possible and to put
4 together two interrelated questions, but we can proceed
5 in that way, too, although we'll require a lot more time
6 that way. Well, how do you interpret the fact that
7 there are only two categories of citizens, foreigners
8 and citizens of the Republic of Bosnia-Herzegovina.
9 JUDGE JORDA: Professor, answer the question, please.
10 A. At this point in time it is clear that here, and I
11 didn't even imply that -- one cannot speak of
12 citizenship of the HZ HB. It is true that this
13 provision speaks of citizens of the Republic of
14 Bosnia-Herzegovina, but I emphasise that this wording
15 implicitly says that a citizen of the Republic of
16 Bosnia-Herzegovina has a somewhat different status when
17 crossing the border or when on the territory of the
18 Croatian Community of Herceg-Bosna. That was my point.
19 With your permission, I would like to link this to
20 Article 18 of the same decree, where it says:
21 "Citizens of the Republic of Bosnia-Herzegovina
22 may move and sojourn in the border area only if they
23 have an appropriate permit".
24 Why do citizens of the Republic of
25 Bosnia-Herzegovina have to have a permit in order to
1 move in the border area on the territory of the Croatian
2 Community of Herceg-Bosna?
3 Q. Wasn't there the same kind of regulation in Yugoslavia
4 on the special status of the border area where those who
5 do not live in the border area could not move quite
6 freely? Are you familiar with these regulations?
7 A. I'm not familiar with these regulations. I have often
8 travelled throughout Yugoslavia and I did not encounter
9 such status.
10 Q. One thing is a border crossing. Another thing is a
11 border area near the border but without a border
12 crossing. It has a special status. Do you remember
13 these regulations?
14 A. I do not remember these regulations, but I find your
15 terminology clear.
16 Q. Do you accept what I said?
17 A. That there can be a difference? I cannot refer to a
18 concrete regulation or rule in this sense.
19 MR. HAYMAN: One moment.
20 JUDGE JORDA: Yes, Mr. Hayman? The time has come to adjourn
21 our hearing. We will resume tomorrow morning.
22 I suppose that causes some problems for Professor Pajic,
23 as you said, but unfortunately I'm not quite sure what
24 we can do to change it. First, turning to the Defence,
25 next morning, which is the last of the week, do you
1 think that you will be able to complete your questions
2 tomorrow? I know that you ask several at the same time
3 in order to speed things up, but for the Presiding Judge
4 you have to try to summarise things somewhat. Do you
5 think that tomorrow morning would be enough for you,
6 Mr. Nobilo, and Mr. Hayman, to complete your
7 cross-examination? Mr. Hayman?
8 MR. NOBILO: We will certainly finish tomorrow, sir.
9 JUDGE JORDA: Thank you. Now I am turning to the
10 Prosecutor before speaking to the witness. Mr. Cayley,
11 what do you suggest to us, in agreement with the
12 witness, who may have to remain.
13 MR. CAYLEY: The witness will remain tomorrow,
14 Mr. President. As you are aware, the rules of procedure
15 allow for a re-examination by the Prosecutor after
16 cross-examination by the Defence. I believe that will
17 be a short and concise process, but I would imagine if
18 the Defence finish within two hours tomorrow, one and a
19 half hours, we would be able to finish with Dr. Pajic
20 tomorrow.
21 JUDGE JORDA: What I first would like to suggest -- let me
22 thank Professor Pajic. We know that you have commitments
23 and you have accepted -- you have agreed to stay, as
24 I asked you and my colleagues asked you. We thank for
25 that. Tomorrow morning, therefore. So we will
1 complete this tomorrow morning. If you agree, I would
2 like to apologise with the interpreters, we could start
3 at 9.30 tomorrow, so we would have some margin knowing
4 we might be over at 1 o'clock. I am asking the Defence
5 and the Prosecutor to complete tomorrow -- what you have
6 to do tomorrow morning. This is a friendly but firm
7 request. If you can't, you can't, but I really do ask
8 you for the conduct of the proceedings to do your
9 best. We will start tomorrow at 9.30. Thank you,
10 Professor.
11 (1.00 pm)
12 (Hearing adjourned until 9.30 tomorrow morning)
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