1 Monday, 14th December, 1998

2 (Open session)

3 --- Upon commencing at 10.40 a.m.

4 JUDGE JORDA: Please be seated. Have the

5 accused brought in.

6 (The accused entered court)

7 JUDGE JORDA: Good morning to the

8 interpreters. Be sure that they can hear me. Also

9 good morning to the Prosecution. Judge Shahabuddeen.

10 JUDGE SHAHABUDDEEN: Gentlemen, I would like

11 to offer to you both my very sincere apologies for my

12 tardiness in arriving this morning. I think I must

13 have been misled by the usual rhythm of our proceedings

14 of a Monday. Thank you very much.

15 JUDGE JORDA: Thank you very much, Judge

16 Shahabuddeen. All of us run into some problems

17 occasionally, and, of course, it's natural for

18 everybody to apologise for what he is guilty of, but

19 I'm particularly sensitive to the fact that Judge

20 Shahabuddeen said what he just said.

21 We can now proceed on the basis of the

22 decision that was rendered on Friday. We are to hear

23 the testimony of Vladimir-Djuro Degan, this morning; is

24 that correct?

25 MR. HAYMAN: That's correct, Mr. President.

1 JUDGE JORDA: I want to thank you for the

2 more detailed summary that you have given us today. I

3 am sure you have told the professor what we talked

4 about on Friday and about what questions could be

5 asked. All right, I think we can agree to that. Do we

6 agree with that Mr. Hayman?

7 MR. HAYMAN: We do. We have informed him, he

8 has applied a scalpel to his notes and prepared

9 comments to reduce and redact them, and I think he has

10 done a serious job at that. If he errs in any

11 respects, I'm sure, in any material respects, I'm sure

12 we will hear and take appropriate steps.

13 JUDGE JORDA: I'm sure that the Prosecutor

14 also has a scalpel, I'm sure he does, and we too have

15 our own scalpel. I think things should go without any

16 hitches, but on the basis that was indicated here, all

17 of us would be interested in hearing what the professor

18 has to say in respect of the information that the

19 Defence wants to give us. Here is the professor.

20 (The witness entered court)

21 JUDGE JORDA: I'm very sensitive and pleased

22 by this early greeting you are giving me. Before you

23 sit down, please give us your name, your first name,

24 what your position is, and then remain standing for a

25 few more moments in order to take an oath and then you

1 can sit down.

2 THE WITNESS: My name is Vladimir-Djuro

3 Degan. I come from Zagreb, I now live in Croatia. I

4 was born at Bosanski Brod which is now called Srpski

5 Brod, according to the Dayton Agreements in the

6 Republic of Srpska. I am a professor, I teach at the

7 law school in Rijeka. I teach international public

8 law, and I also direct an institute in Zagreb which is

9 called the Adriatic Institute which deals with maritime

10 law and the law of the sea.

11 JUDGE JORDA: Thank you. If you would please

12 remain standing for a moment and take the oath before

13 the International Tribunal.

14 THE WITNESS: I solemnly declare that I will

15 speak the truth, the whole truth and nothing but the

16 truth.

17 JUDGE JORDA: Thank you very much,

18 Professor. You may be seated now. The Tribunal is

19 very sensitive to your arrival at the request of the

20 Defence in this trial initiated by the Prosecutor at

21 International Criminal Tribunal of Colonel Blaskic, who

22 is now a General, the accused, who is sitting in this

23 courtroom to your left.

24 In a decision taken by the Trial Chamber on

25 Friday, we limited your remarks in order that they be

1 focused on the points of fact, which are those of the

2 trial that are of interest to us, and not a strictly

3 legal perspective, since the Judges are qualified to

4 deal with and to resolve legal questions that are

5 raised before this Tribunal.

6 There we go. If everything was explained to

7 you, I think now, without any further ado, we should

8 give the floor to Mr. Hayman. It is now a quarter to

9 11 and we will take a break in about an hour or hour

10 and 15 minutes. Mr. Hayman, proceed, please.

11 MR. HAYMAN: Thank you, Mr. President.

12 Examined by Mr. Hayman:

13 Q. Good morning, Professor Degan.

14 A. Good morning, sir.

15 MR. HAYMAN: I would like to commence by

16 handing out copies of the professor's curriculum vitae

17 in French and English, perhaps it could be marked as

18 one exhibit with an A and B subcomponent. Perhaps the

19 French could be A and the English B.

20 THE REGISTRAR: Yes, this document would be

21 D468A for the French version, B for the English

22 version.

23 MR. HAYMAN:

24 Q. Professor, while your curriculum vitae is

25 being handed out, let me ask you to speak more slowly

1 than your natural rhythm of speech would be and we

2 allow for a slight gap in our questions and answers for

3 clarity of interpretation.

4 Also, if I could ask the clerk to move the

5 ELMO slightly. Thank you very much.

6 Professor, we have distributed your

7 curriculum vitae, could you, though, briefly describe

8 your academic career and the academic positions you

9 have held?

10 A. As I just told, I'm now teaching the public

11 International Law at Rijeka University and I run an

12 institute on maritime law and the law of the sea in

13 Zagreb. I don't know whether you are interested in my

14 education, which everything is written in my curriculum

15 vitae.

16 Q. In a few words, could you tell us what degree

17 or degrees you hold, and the like?

18 A. I took my doctor's degree at the University

19 of Ljubljana. My thesis was on treaty interpretation,

20 which I wrote originally in French and published here

21 in the Hague, 1963, it's a long time ago.

22 Q. Welcome back to The Hague.

23 A. Yeah, thank you. And later on, I took

24 Habilitation, that's a German system which was used in

25 Croatia at the University of Zagreb. And I wrote

1 another book in French, it's title is L'ecoute et le

2 Droit International, or Equity in International Law,

3 but equity in a different sense than common law

4 equity.

5 So I followed the courses at The Hague

6 academy of International Law in eleven instances

7 between 1960 -- 1959 until 1971, and I was twice the

8 member of centre of studies and research here at The

9 Hague Academy in the French section.

10 I published articles and books in Croat,

11 English and French. Last year was published here my

12 big book in HE English language, Sources of

13 International Law.

14 Q. Let me ask you, Professor, on the second page

15 of your curriculum vitae under nonjudicial legal

16 activities, it indicates you've been a member of an

17 expert group on state succession and a member of the

18 Croatian delegation in negotiations on succession

19 issues of the former Yugoslavia. Could you briefly

20 describe your work in those capacities?

21 A. That's correct. I took part since the

22 beginning at the conference on the former Yugoslavia

23 which started here in The Hague in 1991. I was the

24 first Croatian member in the work and group on human

25 rights and rights of minorities. Later on this

1 conference started the negotiation process which did

2 not end on state succession. It still lasts. But I

3 must say that is an expert job, and in problems of

4 state succession the positions of Croatia,

5 Bosnia-Herzegovina, Slovenia and Macedonia are the

6 same.

7 Q. Vis-a-vis the Federal Republic or former --

8 A. The former Republic of Yugoslavia, which

9 claims identity of continuity with the Socialist

10 Federal Republic of Yugoslavia, which disappeared. In

11 that respect, there are no differences in my actual

12 job, which is an expert job with the views and

13 positions of Bosnia-Herzegovina.

14 Q. Thank you. Let me also ask you, at the end

15 of your curriculum vitae you identify two decorations;

16 could you describe those for the Court?

17 A. I was awarded by the French government for

18 teaching International Law in the French language at

19 French Universities, Le Mans, Nanterre, Pantheon-Assas

20 and for teaching in French and organising French

21 lectures and also English lectures at the

22 Inter-University Centre of postgraduate studies in

23 Dubrovnik.

24 And I flatter myself that the French

25 government awarded me also for my contribution of the

1 doctrine of International Law in the French language,

2 but perhaps it was a courtesy of that government.

3 Q. The Defence has asked you to come here, and

4 we thank you for coming, to address the Court on the

5 subject of the formal state-to-state relations between

6 Croatia and Bosnia-Herzegovina at times relevant to

7 this case and how those relations bear on the issue of

8 the existence or nonexistence of an international armed

9 conflict in Central Bosnia, the territory for which the

10 accused in this case, General Blaskic, was the

11 Operative Zone commander.

12 Could you please provide the Court the

13 information and comments that you have prepared on this

14 subject?

15 A. Thank you. I will start reading in the

16 English language, but I have an accident, I have my arm

17 broken. That accident happened in Zagreb, I was cured

18 here in the Hague. I cannot take notes by my hand, but

19 I think it will not prevent me in my job here today.

20 Mr. President, Your Honour, the problem which

21 I will discuss is the state-to-state relations of

22 Croatia and Bosnia-Herzegovina, and there are

23 consequences relating to whether General Blaskic can be

24 accused for a commission of grave breaches of the 1949

25 Geneva Conventions under Article 2 of the Statute of

1 this Tribunal. By that part of his indictment the

2 Prosecutor alleges that in the period between May, 1992

3 and January, 1994 there was an international armed

4 conflict in the valley of Lasva between

5 Bosnia-Herzegovina and Croatia.

6 All four Geneva Conventions of 1949, except

7 Common Article 3, apply in international armed

8 conflicts. The appeals Chamber of this Tribunal noted

9 in its decision of 2nd of October, 1995 in the Tadic

10 case --

11 MR. HARMON: Excuse me, Mr. President, excuse

12 me Professor Degan.

13 Mr. President, the decision of the Trial

14 Chamber was to restrict Professor Degan to facts, not

15 law and not comments on the decisions that have been

16 rendered by this Tribunal; and therefore, I am offering

17 an objection to his testimony.

18 JUDGE JORDA: Professor, the Trial Chamber's

19 decision was very clear. We didn't expect you to give

20 us an interpretation of the Geneva Conventions or for

21 you to tell us whether General Blaskic should be

22 prosecuted in respect of the indictment that was issued

23 here. This is a decision of the Judges.

24 I think you have to remain with the question

25 that was asked by Mr. Hayman, that is: Were the former

1 relations among the states, did they, rather, did they

2 have any influence on the armed international conflict

3 in your opinion?

4 Your opinion on the interpretation of the

5 Geneva Conventions is, of course, relevant, and with

6 your curriculum vitae it is, of course, something which

7 is important, but that is not what the Trial Chamber is

8 asking for. The discussion took place on Friday and we

9 circumscribed the questions which were be to taken up

10 by you.

11 You are here as an expert to speak about the

12 relations between the states and their influence, in

13 your opinion, of an international armed conflict. The

14 Judges will then know at the proper time how to

15 interpret the relevant provisions of the Geneva

16 Conventions. Thank you very much.

17 MR. HAYMAN: Mr. President, if I misled the

18 witness, I apologise. I understood on the Court's

19 ruling on Friday that he would be allowed to introduce

20 his subject by painting a construct or a framework for

21 the relevant facts, and that framework is necessarily a

22 legal framework.

23 So I understand that by mentioning the

24 Tribunal or the Appellate Chamber the professor may

25 have pushed a hot button for the Prosecutor, but I can

1 represent to the Court that there is a framework that

2 the professor would like to paint, and the bulk of his

3 comments are relating to factual matters.

4 JUDGE JORDA: I don't want there to be an

5 incident at each sentence, and that's why I've allowed

6 myself to intervene the way I did. If we want to avoid

7 frequent interruptions the witness might make his legal

8 presentation introduction quickly but then move quickly

9 to what was asked of him.

10 MR. HAYMAN:

11 Q. Let me ask you, Professor, to do so. I know

12 it's difficult to speak ad hoc on these types of

13 issues, but please, as we have discussed and as the

14 Court has directed, let's proceed.

15 A. Mr. President, I'm in a very unhappy

16 position, because there is some confusion in

17 interpretation of some parts of the four Geneva

18 Conventions, and there are different doctrinal

19 opinions, and I wanted to explain my opinion which are

20 closely linked to the facts of General Blaskic. I can

21 avoid all of that, but I think it would be a pity.

22 I can just say that framework of that

23 division of armed conflicts before 1949 and after 1949,

24 but I think it will be useful to this Court. It would

25 be different at the International Court of Justice, but

1 if you don't allow me --

2 Q. I think the Court is indicating that you will

3 be allowed a brief period to paint the legal framework,

4 keeping in mind that the bulk of your comments, will,

5 as I believe you have planned and intended, will be

6 factual.

7 A. Thank you. Mr. Chairman, with your

8 permission, I will quote the Tadic case in respect to

9 four Geneva Conventions. It was said that in the

10 present state of development of the law, Article 2 of

11 the Statute only applies to offences committed within

12 the context of international armed conflicts.

13 My comment is that it cannot be otherwise, at

14 least in criminal law. Grave breaches of conventions

15 applicable to international armed conflicts apply only

16 to this type of hostilities and not in noninternational

17 armed conflicts, nor in situations of internal

18 disturbances.

19 My comment is also if the Prosecution fails

20 to prove in the present proceedings that in the

21 critical period and in the critical region of

22 Bosnia-Herzegovina there was an international armed

23 conflict of that stage, of Bosnia and Herzegovina,

24 which Croatia -- my comment is that General Blaskic can

25 be indicted only for violations of the laws or customs

1 of war or for crimes against humanity, that is because

2 Articles 3 and 5 of this Tribunal Statute apply to

3 internal armed conflicts, as well. I don't know

4 whether the Prosecution complies to this, my comment;

5 if not, I will proceed.

6 Now I would like to introduce the framework

7 for this issue, which will be pointed out on factual,

8 on facts which happened in relations between Croatia

9 and Bosnia-Herzegovina in the critical period between

10 May 1992 and January 1994.

11 Prior to the 1949 Geneva Conventions on

12 humanitarian law, classical International Law knew only

13 three types of armed conflicts; they were war, civil

14 war and use of force short of war, such as armed

15 reprisals, self-defence, other kinds of armed

16 interventions, like Pacific blockade of a part of the

17 coast of a foreign state, et cetera.

18 Conventional rules which are now in force

19 distinguish between international armed conflicts,

20 armed conflicts not of an international character, or

21 noninternational or internal armed conflicts, and

22 finally, situations of internal disturbances and

23 tensions which are not armed conflicts.

24 However, as I already mentioned, this

25 repetition did not avoid certain doctrinal confusions

1 which I want to discuss here. In respect to the

2 criteria for existence of all these three different

3 situations, it is Common Article 2 of the four Geneva

4 Conventions which gives criteria for existence of

5 international armed conflicts.

6 Those are all cases of declared wars that

7 situation between high contracting parties, that is to

8 say sovereign states, that these conventions equally

9 apply to any other armed conflict which may arise

10 between two or more states, even if the state of war is

11 not recognised by one of them.

12 That's my interpretation. I think it can be

13 of some use in these trial proceedings, that this part

14 of the phrase in Article 2, paragraph 1 of four Geneva

15 Conventions means a contrario that there is no

16 international armed conflict if all belligerent parties

17 deny the existence of the state of war. In this

18 respect exactly, most doctrinal writings neglect that

19 difference. Probably in the light of the large

20 after-war practice of denials of state of war.

21 The third situation of international armed

22 conflicts is provided in paragraph 2 of Article 2. It

23 reads: "Conventions shall apply to all cases of partial

24 or total occupation of the territory of a high

25 contracting party, even if the said occupation meets

1 with no resistance."

2 Under the impact of later developments in

3 general International Law, paragraph 4 of Article 1 of

4 the 1977 Protocol I of the Geneva Conventions,

5 assimilates into international armed conflicts some

6 kinds of armed struggles which were previously

7 considered as civil wars. Those are conflicts in which

8 peoples are fighting against Colonial domination, and

9 alien occupation or against racist regimes. However,

10 no party --

11 MR. HARMON: Excuse me, Professor Degan.

12 Excuse me, Mr. President and Judge Shahabuddeen, but

13 again I hearken back to the ruling of this Chamber,

14 which was that Professor Degan would come to discuss

15 facts, and now he's giving us his interpretation and

16 his point of view in respect of various Articles

17 contained in the Geneva Conventions, and that is

18 precisely what I thought the decision of the Chamber

19 sought to avoid. A Chamber itself is fully capable of

20 understanding and interpreting the law of the Geneva

21 Conventions. In fact, that is the Chamber's mandate.

22 So I would object, once again, Mr. President,

23 and I would ask that Professor Degan get to the facts

24 about which he intends to testify.

25 JUDGE JORDA: Yes, Professor. I have to

1 sustain that objection, and that was why, through the

2 Defence counsel, to refer you in the French version to

3 the summary that Mr. Hayman prepared on your

4 testimony. Let me remind you of it, because apparently

5 it has to be repeated, that most of the testimony will

6 deal with the theoretical framework, which will allow

7 us to answer the question of knowing whether in the

8 period of interest there was an armed international

9 conflict in Central Bosnia. The question is very

10 simple; in your opinion, was there an armed

11 international conflict or not?

12 The second question was to describe the

13 circumstances which allow us to conclude there was an

14 international armed conflict according to the Geneva

15 Conventions as indicated in Common Article 2. Nothing

16 prevents your giving us your interpretation, but do it

17 very quickly, please. The Judges will note it as

18 evidence which has been tendered into the case file.

19 Thank you.

20 A. Now I'll pass to the facts to make the

21 Prosecution satisfied.

22 JUDGE JORDA: We thank you very much for

23 that. Well, we're not trying to please the

24 Prosecution, you see, or to please the Judges. Each

25 person simply has to do what he has to do in this

1 Tribunal. It's not to please one party or the other.

2 That's not why we're here.

3 Please continue, but remain within the scope

4 that we've indicated, and this is the last comment we

5 can make on this point, otherwise, we have to redefine

6 the scope of your intervention. If you agree, please

7 continue.

8 A. In fact, what happened in the valley of Lasva

9 from January 1993 to January 1994 was not of such a low

10 intensity as to be qualified as internal disturbances

11 or tensions against the central power of the state.

12 That's the factual situation.

13 For an international armed conflict to exist,

14 it must be proven that one of the conflicting parties,

15 namely Bosnia-Herzegovina or Croatia, formally declared

16 war to another, or, alternatively, that any of them

17 recognised the state of war, or, finally, that there

18 was a final occupation of that faction of

19 Bosnia-Herzegovina territory of the Croatian army

20 according to the provisions on occupation which are

21 still in force. They are led down in Articles 42 to 56

22 of the regulations respecting the Laws and Customs of

23 War on Land in 1907.

24 If it was not the case, there are still other

25 criteria to be satisfied for the existence of

1 international armed conflicts, which I shall discuss.

2 I would like only to note here that use of force

3 non-authorised by the Security Council or a crime of

4 aggression can consist in single acts, then it does not

5 necessarily create a state of war or a state of

6 international armed conflict, because there is not a

7 protracted armed conflict.

8 As examples, I can point to the U.S. bombing

9 of Libian territory for its involvement in terrorist

10 acts in Berlin in 1986, or its launching of cruise

11 missiles against installations used by terrorists in

12 the Afganistan and Sudan of this year. Those are some

13 facts that happened outside of Bosnia-Herzegovina and

14 valley of Lasva.

15 Regardless of the actual situation in the

16 valley of Lasva, I want now to examine whether at any

17 time between 1992 and 1995 there existed a state of

18 war. That is to say, objective situation of an

19 international armed conflict between Croatia and

20 Bosnia-Herzegovina.

21 I told already that neither of these two

22 states declared war one to another, that's the fact,

23 nor they recognised the state of war between

24 themselves. I also said that there is no proof that

25 Croatian army kept under occupation any part of

1 Bosnia-Herzegovina. Those are also facts with some

2 legal qualifications.

3 In this respect, the situation is sharply

4 different with the Federal Republic of Yugoslavia. On

5 20th of June, 1992, Bosnia-Herzegovina proclaimed a

6 state of war, identifying Serbia, Montenegro, the

7 Yugoslav army and the local Serbian Democratic Party in

8 Bosnia-Herzegovina as aggressors.

9 From the state practice in wartime appeared

10 some additional criteria for ascertainment of the

11 existence of the state of war, which I want to examine

12 now in four points.

13 Point (A), the outbreak of a war has, as its

14 immediate effect, rupture of diplomatic and consular

15 relations between belligerent states. Nothing similar

16 happened between Bosnia-Herzegovina and Croatia.

17 Embassies of two states, in Zagreb and Sarajevo

18 respectively, exercised unimpeded all their functions

19 since establishment of diplomatic relations near the

20 end of 1992.

21 I hope the Prosecution will not interrupt me

22 now.

23 I can give here some details collected from

24 the Ministry of Foreign Affairs of Croatia. After the

25 two states formally recognised one another as

1 independent states on 7th of April, 1992, only a few

2 days later on they agreed, on 14th of April, that their

3 diplomatic and consular missions abroad will protect

4 interests of nationals of the other state party where

5 only one of them had such a mission.

6 Pursuant to paragraph 9 in the Agreement of

7 Friendship and Co-operation of 21st of July, 1992, on

8 25th of July, on next 25th July, they reached an

9 agreement on establishment of diplomatic relations

10 between two states. On 29th of September, Croatian

11 president Tudjman accredited Mr. Zdravko Sancevic as

12 first Croatian ambassador in Sarajevo. Mr. Sancevic

13 delivered his letter of credence to President

14 Itzebegovic in Sarajevo on 17th of November, 1992.

15 Madam Bisera Turkovic was accredited by the Presidency

16 of Bosnia-Herzegovina as its first ambassador in

17 Croatia on 19th of January, 1993. She delivered her

18 letter of credence to President Tudjman on following

19 25th of March. On 14th of June, 1993, President

20 Tudjman was in official visit to besieged Sarajevo, in

21 his effort to stop the conflict of HVO with the army of

22 Bosnia-Herzegovina.

23 Therefore, in the period between January 1993

24 and January 1994, for which General Blaskic is accused

25 for grave breaches of Geneva Conventions, Croatia and

1 Bosnia-Herzegovina did not interrupt their diplomatic

2 relations. In that very period, they established and

3 developed them.

4 However, because of the practice of some

5 belligerents to keep diplomatic relations even during

6 full-fledged hostilities, like China and Japan until

7 1st of February, 1938, the Soviet Union and Japan,

8 during hostilities in Siberia and Mongolia in mid 1938

9 and in 1939, or Iran and Iraq throughout the war

10 between 1980 and 1988, of importance are other tests of

11 existence of an international armed conflict which I'll

12 discuss now.

13 Point (B), the outbreak of war has

14 considerable effects on treaties between belligerent

15 states. Not one treaty enforced between

16 Bosnia-Herzegovina and Croatia was suspended or

17 abrogated, even in the period of hostilities between

18 HVO and Bosnian army in Bosnia-Herzegovina.

19 In this respect I would like to add that

20 there are now not generally agreed rules on effects of

21 international armed conflicts on multilateral and

22 bilateral treaties of which belligerents are parties.

23 That important topic remained outside the scope of the

24 1969 Vienna Convention on the Law of Treaties, and I

25 discussed that problem in my book on sources of

1 International Law, pages 465 to 469, where I analysed a

2 resolution on this subject matter adopted by l'Instiut

3 de Droit International in 1985.

4 However, from the former state practice it

5 can be concluded the following: The first, the

6 outbreak of war cancels all bilateral treaties on

7 political or military co-operation or alliances between

8 the belligerents. On this account, no party cancelled

9 the above mentioned Agreement on Friendship and

10 Co-operation of 21st of July, 1992.

11 Second, during the wartime, each of

12 belligerents is free to suspend the operation of

13 treaties on trade, commerce and similar matters unless

14 the U.N. Security Council decides otherwise. This

15 relates, above all, to all bilateral treaties between

16 belligerents, but not to multilateral treaties or

17 treaties constituting international organisations of

18 which all belligerents are parties.

19 I examined, to this end, the situation of

20 bilateral treaties between two states concerned before

21 January 1993. In a list provided by the Croatian

22 Foreign Ministry, besides the above-mentioned

23 agreements on diplomatic representation abroad, on

24 friendship and on establishment of diplomatic

25 relations, I found only a protocol between two

1 governments dating before the proclamation of

2 independence of Bosnia-Herzegovina. The matter was of

3 the Protocol of 27th of February, 1992 on co-operation

4 in settlement of problems of refugees from

5 Bosnia-Herzegovina in Croatia.

6 This means that in that tragic period of

7 Serbian occupation of one-third of Croatian territory,

8 with a huge number of Croatian displaced persons from

9 its own occupied territories like Vukovar, Gospic and

10 others, Croatia continued to receive refugees from

11 Bosnia-Herzegovina. Bilateral treaty relations

12 expanded greatly after the Washington Framework

13 Agreement on Confederal Relations of 18th of March,

14 1994. However, there is no evidence that either

15 Bosnia-Herzegovina or Croatia cancelled or suspended

16 the operation of any of the agreements I have

17 mentioned. All of them were applied under the

18 circumstances even after January 1993.

19 Finally, the outbreak of hostilities renders

20 operative multilateral and bilateral treaties which

21 expressly provide to be operated during the armed

22 conflicts. While the International Committee of the

23 Red Cross was active to conclude ad hoc agreements on

24 application of Geneva Conventions and protocols between

25 Croatia and SFRY and the JNA in summer 1992, I have no

1 data that these conventions on humanitarian law were

2 applied any time in relations between Croatia on the

3 one side and Bosnia-Herzegovina on the other.

4 Point (C), the outbreak of hostilities has

5 important effects on enemy citizens in the territory of

6 another belligerent state.

7 An important objective test of existence of

8 an international armed conflict proceeds from Article

9 4, paragraph 2 of the 1949 Fourth Geneva Convention

10 relative to the protection of civilian persons in time

11 of war.

12 With permission of the Prosecution, I'll

13 quote it: "Nationals of a neutral state who find

14 themselves in the territory of a belligerent state, and

15 nationals of co-belligerent state shall not be regarded

16 as protected persons while the state of which they are

17 nationals has normal diplomatic representation in the

18 state in whose hands they are."

19 The fact is that no citizen of

20 Bosnia-Herzegovina possessing its passport, being

21 refugee or resident in Croatia, needed protection from

22 the Fourth Geneva Convention. None of them was treated

23 by Croatian authorities as an enemy citizen. None was

24 repatriated by force to Bosnia-Herzegovina, nor was

25 interned or placed an assigned residence in Croatia.

1 On the contrary, all of them were treated as nationals

2 of the co-belligerent state, enjoying protection of

3 their embassy in Zagreb. So far as I know, the same

4 was true for Croatian citizens in parts of

5 Bosnia-Herzegovina under the control of its central

6 authorities. We can say only besieged Sarajevo.

7 Croatian citizens in besieged Sarajevo were protected

8 by their embassy in Sarajevo.

9 Point (D), finally, the outbreak of

10 hostilities has important effects on intercourse,

11 especially trading between belligerents. In this

12 respect, not conclusive are provisions from treaties of

13 peace concluded in 1919 and 1947 respectively, which

14 settled very much unequal relations on these issues

15 between victorious states and their subjects on the one

16 hand, and vanquished states and their subjects in two

17 world wars on the other. Conclusive is, however,

18 practice of all belligerents during two world wars.

19 From legislation and practices of the United

20 Kingdom, France, the United States in two World Wars,

21 also of Italy and Germany, on trading with enemy, some

22 conclusions may be drawn.

23 Each of belligerents is empowered to prohibit

24 by its laws all trade between its own and enemy

25 subjects, including, of course, their state

1 enterprises. On behalf of these laws in two world

2 wars, practically, all trade and contracting with

3 persons resident in an enemy country or with persons

4 from neutral countries doing business with the enemy,

5 all payments to such persons, and all business and

6 communications with them were interrupted.

7 All contracts made before the entry into

8 force of that legislation were abrogated. Being in

9 contravention with that legislation, all new contracts

10 were null and void and constituted criminal offences.

11 Only contracts concomitant of rights of property, such

12 as leases or mortgages, were not abrogated but they

13 were suspended until the conclusion of peace treaties.

14 Furthermore, all belligerent states seized

15 public enemy property on their owned and on occupied

16 territories, such as funds, ammunition, provisions or

17 rolling stocks of enemy state railways. All these

18 measures were considered by all belligerents as

19 consistent with the law of war which did not suffer

20 changes even after 1945.

21 In relations between Croatia and

22 Bosnia-Herzegovina, during all the period up to the

23 conclusion of Dayton Agreement near the end of 1995, it

24 was just opposite what happened, like in respect of

25 diplomatic and treaty relations. Following resolutions

1 of the U.N. Security Council 757, 787 of 1992, and 820

2 of 1993, commercial, industrial, financial and other

3 intercourse were forbidden in Croatia, and as I know

4 also in Bosnia-Herzegovina only with the Federal

5 Republic of Yugoslavia, and with the Serbian occupied

6 territories in Croatia and Bosnia-Herzegovina, but it

7 was the duty of all Member States of the United

8 Nations, including Canada, or the United States or

9 France or others.

10 I have know data, and I cannot give testimony

11 on these matters here, but I'm informed by Defence

12 counsel that they have documents that even shipment of

13 arms and ammunition in contravention to the arms

14 embargo imposed by the Security Council Resolution 713

15 of 1991 passed through Croatia to the army of

16 Bosnia-Herzegovina. Equally, most of provisions in

17 food, clothing and medicine, which were not transported

18 by air, went to Sarajevo and to other unoccupied parts

19 of Bosnia-Herzegovina through Croatian territory.

20 It would probably be a unique case in history

21 of wars that a belligerent in an international armed

22 conflict helped his enemy by arms and ammunition in

23 such a quantity as Croatia has done for

24 Bosnia-Herzegovina.

25 In addition to the state-to-state relations

1 as I understand it, in the critical period between

2 January 1993 and January 1994, in the zone of

3 responsibility of General Blaskic, no units of Croatian

4 army could penetrate because that area was entirely

5 surrounded by the Bosnia army. Therefore, in that

6 region and in that period, at least there was no

7 international armed conflict, on this account, also, he

8 cannot be indicted for grave breaches of the 1949

9 Geneva Conventions.

10 It is reported that some units of the

11 Croatian army happened to be outside the Lasva Valley

12 in other areas of Bosnia-Herzegovina. They mostly

13 consisted of soldiers originating from

14 Bosnia-Herzegovina as I am here, and their presence --

15 their temporary presence was, in my view, nothing

16 similar to a protracted armed intervention by a foreign

17 state.

18 Lastly, there is no proof that in their zones

19 of operation they exercised competences of an occupying

20 power.

21 From all the above, I came to the following

22 conclusion, I'll read it carefully: State-to-state

23 relations strongly indicate that a state of war or an

24 objective situation of an international armed conflict

25 did not occur between Croatia and Bosnia-Herzegovina in

1 1993 or afterwards. On the contrary; there is plenty

2 of evidence that two states were co-belligerents in the

3 conflict against Serbian forces, and that the conflict

4 between HVO and the army of Bosnia-Herzegovina was an

5 unfortunate internal armed conflict. Thank you

6 Mr. President.

7 JUDGE JORDA: Thank you, Professor. I think

8 after this testimony you would perhaps like to ask some

9 questions, Mr. Hayman.

10 MR. HAYMAN: Mr. President, I don't have any

11 further questions at this time. I would offer Defence

12 Exhibit 468, his curriculum vitae, into evidence, and I

13 also want to assure the professor that although in

14 perhaps diplomatic or academic circles if a party

15 interrupts another it could be a misstep, but please be

16 assured that in the courtroom, when one party makes an

17 objection they're simply following their duty and

18 obligation to their client. Thank you.

19 A. Thank you.

20 JUDGE JORDA: The Judges can only agree with

21 what has just been said, that this is part of normal

22 judicial proceedings. Do you have a lot of questions

23 to ask, Mr. Harmon? Would you like to us take a break

24 now? What would you prefer?

25 MR. HARMON: I would prefer a break now,

1 Mr. President, if that is possible. Thank you.

2 JUDGE JORDA: All right. We're going to take

3 a 20 minute break, and we'll resume for the

4 cross-examination.

5 --- Recess taken at 11.34 a.m.

6 --- On resuming at 12.00 p.m.

7 JUDGE JORDA: We can resume the hearing now,

8 have the accused brought in, please.

9 (The accused entered court)

10 JUDGE JORDA: Mr. Harmon, you will allow me,

11 with all the respect that I owe to you, to focus your

12 cross-examination on the direct examination. Don't

13 speak about legal issues, yourself. Don't make law,

14 also.

15 MR. HARMON: Yes, thank you very much, Mr.

16 President and Judge Shahabuddeen. Good morning,

17 Counsel.

18 Cross-examined by Mr. Harmon:

19 Q. Good morning, Professor Degan. I'm sorry I

20 interrupted you, but as Counsel has indicated, there

21 are times when a lawyer in court must fulfil his duty.

22 I meant no offence when I interrupted you.

23 Now, let me ask you some questions briefly,

24 and I won't spend too much time, but let me ask you

25 some questions about your testimony. Specifically, you

1 testified that a factor that led you to the conclusion

2 that there was no international armed conflict in

3 Central Bosnia in 1991, 1992 and 1993 was the fact that

4 there was an absence of a declaration, a formal

5 declaration of war. Did I understand your testimony

6 correctly?

7 A. Mr. President, I think the critical period is

8 between January, 1993 and 1994. I think I explained

9 with a lot of arguments of law and facts that there was

10 not an international armed conflict in state-to-state

11 relations between Croatia and Bosnia-Herzegovina as

12 sovereign states and as members of the United Nations,

13 and specifically that in the region of Lasva Valley

14 there was not an international armed conflict, because

15 there were no troops of the Croatian army present

16 there.

17 Q. Professor Degan, you didn't understand my

18 question. I understand your testimony to be that a

19 factor that these Judges should consider in determining

20 whether there was an international armed conflict was

21 the fact that there was no declaration of war between

22 Bosnia and Herzegovina in the Republic of Croatia; did

23 I understand your testimony correctly?

24 A. Yes, but it was one of the elements.

25 Q. Well, let me ask you about that element, we

1 will come to the other elements. Please.

2 And you cited as examples where there was no

3 formal declaration of war, but, in fact, war existed.

4 The situation between Japan and China in 1938. Did I

5 understand that testimony correctly?

6 A. Yes.

7 Q. Let me ask you, then, Professor Degan, was

8 there an international armed conflict between the FRY

9 and the Republic of Croatia?

10 A. I studied that problem carefully --

11 JUDGE JORDA: Please put your microphone on.

12 There you go, thank you.

13 A. I studied the problem carefully of

14 relationship between Croatia and Federal Republic of

15 Yugoslavia on the basis of all elements which I exposed

16 here. But it's my conclusion, I came to the conclusion

17 that there was not an international armed conflict

18 between Croatia and Federal Republic of Yugoslavia

19 because of many elements which I can explain here.

20 Probably it's not important.

21 Q. Let me ask you, did Croatia ever declare war

22 on the Federal Republic of Yugoslavia?

23 A. It did not.

24 Q. Now, I take it your testimony is the absence

25 of a declaration, formal declaration of war between two

1 sovereign states is not dispositive of whether there in

2 fact exists an international armed conflict, it is only

3 one factor to be considered?

4 A. Yes. I'm sorry, I had not opportunity to

5 expose all those elements from the Common Article 2

6 from four Geneva Conventions in 1949. I wanted to

7 explain that in order to prevent the further

8 discussion, but I am ready to do that now.

9 Q. Let me ask you, Professor Degan, while there

10 may have been an absence of a formal declaration of

11 war, was there a recognition, as far as you know, of

12 hostilities that existed, armed hostilities that

13 existed between the Republic of Croatia and the

14 government of Bosnia and Herzegovina during the

15 relevant time period?

16 A. Between governments of Croatia and

17 Bosnia-Herzegovina?

18 Q. Yes, was there a recognition of the existence

19 of armed hostilities during that time period?

20 A. As I know in the state-to-state relations,

21 there was not such a recognition.

22 MR. HARMON: Let me show you, then, if I

23 could, if I could have the assistance of the usher, I

24 would like to show you some documents, Professor.

25 THE REGISTRAR: This is 556A for the English

1 version.

2 MR. HARMON: Professor Degan, if you could

3 just look at that for a couple of moments.

4 JUDGE JORDA: Do you want a little bit of

5 time, Professor? This is the Presiding Judge speaking

6 to you. Professor, do you need some time to read it?

7 MR. HARMON:

8 Q. Professor Degan, this is a statement of the

9 government of the Republic of Bosnia and Herzegovina,

10 and it is a result of a session that was held on the

11 13th of May, 1993 in which it considered the situation

12 in the region of Mostar and Central Bosnia, and in this

13 respect there are certain government conclusions.

14 I would like to direct your attention to, on

15 the English version, the second page, the last

16 paragraph on the second page that reads, "The

17 government of Bosnia and Herzegovina states, once

18 again, that it wishes to develop all encompassing

19 relations in cooperation with the Republic of Croatia

20 on the basis of mutual trust and respect; however,

21 unless the attacks are immediately stopped and the

22 units of the state of Croatia are withdrawn immediately

23 from the territory of Bosnia and Herzegovina, the

24 government of the Republic of Bosnia and Herzegovina

25 will be forced to turn to the international community

1 and request protection from the aggression."

2 So my question to you is: First of all, were

3 you aware, Professor Degan, at any time during the time

4 frame of 1993 that the government of the Republic of

5 Bosnia and Herzegovina complained about armed

6 aggression in the Republic of Bosnia and Herzegovina by

7 soldiers from Croatia? Did you ever hear of any such

8 complaints?

9 A. Mr. Chairman, I wanted to explain in my

10 larger text that there can be some differences between

11 the act of aggression and international armed

12 conflict. I mentioned in my intervention this morning

13 that single interventions by the United States in

14 Libya, and this year in Afghanistan and Sudan. Did not

15 generate into any international armed conflict.

16 Such acts which are, which can be acts of

17 aggression can generate into international armed

18 conflicts; and if it happens, then all provisions from

19 Geneva Conventions apply, and then both sides, even the

20 victim of aggression can commit international crimes.

21 But that, what you quoted here,

22 Mr. Prosecutor, it may be the proof of an unlawful

23 intervention by Croatia, internal armed conflict in

24 Bosnia-Herzegovina which was not authorised by the U.N.

25 Security Council. But many unlawful armed

1 interventions do not generate into international armed

2 conflicts.

3 I am still of a view that there was an

4 internal armed conflict in Bosnia-Herzegovina between

5 HVO and the army of Bosnia-Herzegovina, and perhaps you

6 have some evidence that in some periods temporarily

7 there were some fractions of the Croatian army present

8 in Bosnia-Herzegovina, but that's very far from an

9 international armed conflict. Even the passage you

10 quoted finishes that the "government of the Republic of

11 Bosnia-Herzegovina will be forced to turn to the

12 international community and request protection from the

13 aggression." It's not said "international armed

14 conflict." Your document is dated, I don't see a date,

15 it's dated -- maybe you know the date of the document.

16 13th of May 1993.

17 The declarations and letters of the permanent

18 representative of Bosnia-Herzegovina in the United

19 Nations are also acts of state. And I can quote you a

20 letter dated on 21st of April, 1993 from the permanent

21 representative of Bosnia-Herzegovina to the United

22 Nations, to the president of the Security Council, of

23 21st of April, 1993. I will quote you some parts of

24 this letter.

25 Q. Excuse me, we may come to that letter in a

1 few minutes if you could refrain for a few minutes.

2 A. All right, you are in privileged position

3 here.

4 Q. As professors often times --

5 JUDGE JORDA: I would like things to be clear

6 here. The people who have a privileged position is the

7 Judges. This is the second time that you consider one

8 of the parties has a privileged position. Let me

9 remind you this is a specific procedure, that is one of

10 the International Criminal Tribunal, which has its own

11 procedures, different from others. We are the

12 guardians of equitable proceedings, Professor. I did

13 not interrupt you, but I do not accept you saying that

14 the Prosecutor has a privileged position, only the

15 Judges do.

16 A. I beg your pardon, but if you allow, I would

17 like to cite sections of that letter.

18 JUDGE JORDA: Well, go ahead, cite them if

19 you want to, but please don't forget that you must

20 answer the Prosecutor's questions. It is not to give

21 him a privilege. He is asking questions and you have

22 to answer. And, of course, you will answer taking as

23 much time as you consider necessary for the details you

24 want to provide in your answer. Proceed, please.

25 A. Thank you, Your Honour. "The recent reports

1 of the conflict between the Bosnia and Herzegovina army

2 and the Croatian Defence Council have been greatly

3 exaggerated as an ethnic conflict between Muslim and

4 Croats. This fighting is not a conflict based along

5 ethnic lines; rather, it is a conflict which is a

6 consequence of the international communities arms

7 embargo on Bosnia and Herzegovina and the International

8 Community's failure to provide adequate humanitarian

9 assistance to the besieged population in Central Bosnia

10 and Herzegovina. This arms embargo denies both Muslims

11 and Croats adequate defence capabilities in the face of

12 barbarous aggression from Serbia and Montenegro. The

13 arms embargo and the lack of adequate sustenance pits

14 neighbour against neighbour for control of scarce

15 resources. If the two armies had adequate defence

16 capabilities, and if the population in Central Bosnia

17 were adequately assisted with humanitarian needs,

18 conflict between local leaders would have never

19 occurred."

20 Thank you, Your Honour. I think it's my

21 answer to the question of the Prosecution.

22 MR. HARMON: Let me show you another

23 document, if I could. And this document, Professor

24 Degan, is dated September the 4th, 1993, and you will

25 have a copy of it in front of you in just a minute.

1 THE REGISTRAR: This is document 557.

2 MR. HARMON:

3 Q. This document, Professor Degan, is dated

4 September 4, 1993 from a member of the presidency of

5 the Republic of Bosnia and Herzegovina, and it is it

6 addressed to UNPROFOR BH command, and UNPROFOR

7 headquarters for the former Yugoslavia. And if you

8 will take just a moment to read it.

9 Professor Degan, this document, again, in

10 light of my previous questions, was there a recognition

11 of the existence of hostilities between the two

12 countries? This is a letter that is from the

13 individual who was a member of the Bosnian presidency,

14 and he describes, does he not in there, attacks by, in

15 Bosnia and Herzegovina by members of the Croatian army

16 and HVO forces?

17 I direct your attention to the second full

18 paragraph.

19 A. May I comment?

20 Q. Please.

21 A. Yeah, here is also mentioned only the term

22 "Aggression" not "international armed conflict". It

23 dates 4th of September, 1993.

24 Mr. President, with your permission, I can

25 quote another document issued not by one of the parties

1 in that internal armed conflict, but by co-chairman

2 Stoltenberg of 10th of January, 1994 on talks between

3 presidents Izetbegovicvic --

4 JUDGE JORDA: Excuse me, Professor. I have a

5 procedural question. Mr. Hayman, your witness is

6 citing documents which the judges don't have. Do you

7 intend to present them? Because there is something

8 inequitable here. The witness is answering through

9 documents, that is his right, but he is the one who

10 knows what is in the documents, he knows his own text,

11 whereas we do not know anything.

12 I would like to know how the Defence

13 considers this call for documents which seem to be very

14 interesting, to be of great interest to the Defence or

15 the accused, but we don't have them. What is your

16 opinion on that, Mr. Hayman?

17 MR. HAYMAN: Mr. President, the witness has

18 referenced a great many documents in his testimony we

19 have not produced. The fact is it is very time

20 consuming and it greatly lengthens the proceeding to

21 inundate the Tribunal with documents. The tack that

22 the Prosecutor is taking currently is asking the

23 witness "Aren't these documents that tend to indicate

24 armed conflict between Croatia and Bosnia-Herzegovina,"

25 which is an empirical question, what do documents

1 reflect, and the witness quite appropriately is

2 responding with similar empirical material concerning

3 what other documents contain.

4 I haven't seen the document he is

5 referencing. This is, I think, the nature of the

6 testimony.

7 JUDGE JORDA: No objection, Mr. Harmon?

8 MR. HARMON: I am going to object at some

9 point in time, Mr. President, I ask the witness a

10 question, he doesn't answer my question but he refers

11 to other documents. I would like him to focus on the

12 question that I asked him.

13 JUDGE JORDA: What I would like is for you to

14 focus on the answer. If you need to refer to documents

15 you can do so, but refer to them -- only first of all

16 give us your answer.

17 A. Thank you, Your Honour. My answer is that in

18 the document the Prosecution presented to this Trial

19 Chamber mentions inter alia, "to put an end to the

20 aggression against our country as soon as possible."

21 It was alleged that in some parts of Bosnia-Herzegovina

22 with Muslim population, they were attacked by over

23 5.000 members of the Croatian army and HVO forces.

24 This is a document by one side in an internal

25 armed conflict. Even by those data, if they were

1 accurate, nobody can prove that there was an

2 international armed conflict between Croatia and

3 Bosnia-Herzegovina, if those data were accurate, then

4 it would be again an unlawful armed intervention by the

5 units of Croatian army in Bosnia-Herzegovina.

6 For instance, the United States intervened in

7 many other countries and probably most of those armed

8 interventions were acts of aggression, but they did not

9 bring it to international armed conflicts. Thank you.

10 That's my answer, Mr. President.

11 MR. HARMON:

12 Q. Professor Degan, in addition to these

13 examples wherein the government of the Republic of

14 Bosnia and Herzegovina was indicating that there were

15 hostilities between forces of the Republic of Croatia

16 and their own forces, there were United Nations

17 resolutions demanding the withdrawal of Croatian troops

18 from Bosnia and Herzegovina. And I specifically refer

19 to resolution 752 dated the 15th of May, 1992 and U.N.

20 Security Council 787, also making a similar demand.

21 Have you seen those resolutions?

22 A. I know those resolutions, but they relate to

23 the time which precedes the critical period for which

24 General Blaskic was accused.

25 Q. Now, you agree, do you not, you don't dispute

1 that the United Nations in two resolutions demanded

2 that Croatian army forces be withdrawn from the

3 Republic of Bosnia and Herzegovina?

4 A. Mr. Prosecutor, I agree, there is resolution

5 787 of 16th of November, 1992, but perhaps it relates

6 to the crime of General Blaskic, but I am not sure in

7 that.

8 Q. Let me show you, if I could, a document which

9 is found, it's Prosecutor's Exhibit 406/95.

10 JUDGE JORDA: If you don't have enough copies

11 for everybody, put it on the ELMO so that the Judges

12 can see it, because we don't have the document.

13 MR. HARMON:

14 Q. This, Professor Degan, is a letter dated the

15 28th of January, 1994, from the permanent

16 representative of Bosnia and Herzegovina to the United

17 Nations, addressed to the president of the Security

18 Council. You will see attached to the second page an

19 annex, and you will see on the annex there is a

20 description of the military intervention of the armed

21 forces of the Republic of Croatia against the sovereign

22 and independent Republic of Bosnia and Herzegovina.

23 And you will see in reviewing that particular document

24 dated the 28th of January, 1994, a description of the

25 units from the Republic of Croatia that were in the

1 Republic of Bosnia and Herzegovina. And you will see,

2 sir, the last paragraph, and I will quote the last

3 paragraph, "We express our deepest concern about such

4 an extent of military intervention of the Republic of

5 Croatia in the Republic of Bosnia and Herzegovina and

6 request that Security Council to firmly condemn such

7 activities and take all necessary measures in

8 accordance with the provisions of Chapter 7 of the

9 United Nations charter and all the relevant general

10 assembly and Security Council resolutions."

11 So, Professor Degan, you have cited some

12 examples of, in Libya, an example of an intervention in

13 Libya, which consisted of, as I recall, a single

14 bombing incident. You have cited an example of

15 Afghanistan attacked by the United States on alleged

16 terrorist camps in Afghanistan which consisted of a

17 single bombing attack. And you have now seen three

18 documents I have shown you, the earliest document is

19 May 13th, 1993, these are examples, and the latest

20 document is a letter dated the 28th of January, 1994,

21 and you have seen two Security Council resolutions,

22 those being resolution 752 and 787 dealing with

23 Croatian troops present in the Republic of Bosnia and

24 Herzegovina.

25 And my question to you, Professor Degan, is:

1 Was there a recognition both by the states themselves,

2 by Bosnia and by the United Nations, that hostilities

3 between two sovereign states was, in fact, occurring?

4 A. No, Mr. Prosecutor, that was a letter of one

5 side. Perhaps there were present some troops of

6 Croatian army, but I tried to prove before this

7 Tribunal that an element of an international armed

8 conflict should be its protracted character in time and

9 intensity.

10 With your permission, Mr. President, I would

11 now quote Mr. Thorvald Stoltenberg's report, which

12 dates almost at the same time.

13 MR. HARMON: Mr. President, if we could have

14 a copy of that report before Professor Degan quotes it,

15 then I might be able to ask questions of Professor

16 Degan in respect of that particular report. I find

17 myself disadvantaged.

18 A. May I add a comment, Mr. President?

19 JUDGE JORDA: Yes, you may, but let me remind

20 you though the Judges don't have this report. We would

21 like to have it. Perhaps we should suspend so we could

22 have it.

23 A. Mr. President, General Blaskic was accused

24 for grave breaches of Geneva Conventions in that very

25 closed area of his responsibility, which was besieged

1 by the army of Bosnia-Herzegovina. There was no

2 presence of troops of the Croatian army, that region of

3 responsibility of General Blaskic. To accuse

4 General Blaskic for consequences of the presence of

5 Croatian troops in other parts of Bosnia-Herzegovina

6 would be tantamount to accusing him for the crime of

7 aggression, and Mr. Blaskic was of so low of a

8 commanding position that he cannot be guilty of --

9 JUDGE JORDA: Professor, let me remind you, I

10 don't want to have to do it again, you're not here as

11 the Defence counsel for the accused. He has his

12 counsel, and they will argue in respect of the

13 documents that have been provided here. You are a

14 Defence witness. Let me remind you to remain within

15 the scope of your testimony for the Defence.

16 However, if you rely significantly on this

17 report, the Prosecution doesn't have it, and apparently

18 the Defence doesn't have it either, neither do the

19 Judges, and we would like to have the report.

20 A. I -- again --

21 JUDGE JORDA: No, that's not it. If you're

22 going to base yourself on the report, could you give it

23 to the Defence, the Prosecution, unless you decide not

24 to use it.

25 MR. HAYMAN: Maybe it can be put on the ELMO

1 and he can read from it, Mr. President. That way

2 everyone can see what he's reading from and we can

3 proceed. That's fine.

4 MR. HARMON: Mr. President, I would still

5 like a copy of any report that Professor Degan reads

6 from, so I can look at the rest of the report, those

7 portions he has not read from.

8 MR. HAYMAN: Mr. President, I just want to

9 note that there have been lots of occasions in this

10 trial where the Prosecutor or indeed I have asked a

11 question and quoted a document or a source. It does

12 not automatically follow, therefore, that we have to

13 suspend the hearing, make copies and circulate it for

14 everyone. I have no problem providing this document.

15 I haven't see it, I don't know exactly what it is, the

16 Professor has far-ranging factual knowledge, but I

17 suggest we can put it on the ELMO and we can read from

18 it.

19 JUDGE JORDA: All right. We're going to put

20 the document on the ELMO, but it must be provided to

21 the Prosecution, and it will appear in the Judges' case

22 file under a number that the registrar will give us.

23 For the time being we can continue the proceedings.

24 I would ask the Professor, who speaks French

25 very well, perhaps he could put his headset on, because

1 apparently I'm not sure he heard what I have to say,

2 and I really want you to hear what I have to say.

3 That's my privilege, my little privilege. Therefore,

4 please put the headset on. You speak French very well,

5 but sometimes you don't quite hear what I'm saying. So

6 if you don't mind, please put on the headset and I

7 think that will facilitate everybody's work.

8 For the time being we will resume the

9 proceedings, and then the report will be provided to

10 the Prosecution and will appear in the Judges' case

11 file. All right. We want to hear what you have to

12 say, Professor. I'm sure that you understand me even

13 better now.

14 A. Thank you. No, in English.

15 JUDGE JORDA: Proceed, please.

16 A. This was the report by Thorvald Stoltenberg

17 of 10th of January, 1994 on talks in Bonn between

18 President Itzebegovic and Tudjman. I'll quote

19 paragraphs 3 and 4. Paragraph 4 is more important. In

20 paragraph 3 it's written: "President Tudjman, in his

21 draft treaty on future relations between Croat and

22 Muslims, advanced the idea of a confederation between

23 the Republic of Croatia and the Muslims and Croat parts

24 of Bosnia-Herzegovina. Nevertheless, he would like to

25 see the boundaries defined between the areas allocated

1 to the Bosnian Croats and the Bosnian Muslims.

2 President Itzebegovic, on the other hand, is not in

3 favour of such a delimitation but would like to achieve

4 agreement that the two components should have around 51

5 per cent of the territory of Bosnia-Herzegovina. Each

6 side maintained its position on that issue."

7 The paragraph 4 is more important, because it

8 directly relates to the responsibility of

9 General Blaskic: "On Central Bosnia, President

10 Itzebegovic would clearly like to have Croat pockets

11 such as Vitez, Busovaca, Kiseljak, Kresevo, Vares, Novi

12 Travnik, Fojnica and Gornji Vakuf included in the

13 Muslim majority area. President Tudjman, for his part,

14 is not prepared to concede this. Part of the problem

15 has to do with a munitions factory at Vitez and three

16 munition factories at Novi Travnik that each side would

17 like to have. President Itzebegovic openly expressed

18 his determination to fight for the plant at Vitez,

19 while President Tudjman was equally firm that he could

20 not have it. Both sides are aware that current BiH

21 offences against Vitez have this objective in mind."

22 I find -- there is, I think, another --

23 yeah.

24 In point seven, second page. That's the

25 conclusion: "The Muslims having scored victories in

1 Central Bosnia and knowing that the Serbs are under the

2 burden of sanctions, are demonstrating confidence in

3 their ability to win more territories through military

4 action. Indications from various capitals that all

5 parties must co-operate in the search for a negotiated

6 settlement have come at the same time as calls have

7 been voiced in the NATO summit for more vigorous

8 military action ."

9 So those quotations go in favour of innocence

10 of General Blaskic, but I'll not comment anymore.

11 MR. HARMON:

12 Q. Now, Professor Degan, during the war in 1993

13 in Bosnia, did you ever travel to Bosnia?

14 A. Unfortunately I did not, but if you are

15 interested in my personal situation, my mother lived in

16 Sarajevo, and she died in January 1995 when the city

17 was still besieged. I could not penetrate to the city

18 for the funeral of my mother. She was victim of

19 aggression from surrounding mountains of the Serbian

20 part. I have some other very sorry experience of my

21 sister's destiny. Her only son perished in the battle

22 of Herzegovina, but it's better that I do not explain.

23 I can only say I was for the first time in

24 Sarajevo two years ago. Thank you.

25 Q. Professor, do you know the extent to which

1 Croatia had its troops in Bosnia and Herzegovina?

2 A. Only from documents.

3 Q. Do you know the geographic extent of their

4 penetration into Bosnia and Herzegovina?

5 A. Some parts of Bosnia-Herzegovina I know

6 better than others, and I know especially well the

7 valley of Lasva where I passed my vacations -- summer

8 vacations in 1946, '47, before General Blaskic was

9 born. I know also the valley of Neretva. I passed it

10 many times by car.

11 Q. So when you testify today about your

12 opinions, you are -- don't know the facts about how

13 many Croatian army troops were deployed in the Republic

14 of Bosnia and Herzegovina, how far those troops

15 penetrated northward into Bosnia and Herzegovina; do

16 you?

17 A. I can only legally qualify the presence of

18 troops of Croatian army in Bosnia-Herzegovina, and my

19 conclusion is that it was not a protracted armed

20 conflict between two states, it was unlawful armed

21 intervention without authorisation of the U.N. Security

22 Council.

23 Q. Now, let me ask you, you also testified about

24 various agreements that existed between the Republic of

25 Croatia and the Republic of Bosnia and Herzegovina, and

1 you cited an agreement on friendship and co-operation.

2 A. Yes.

3 Q. Was that a treaty or was that an agreement,

4 and is there a difference in International Law?

5 A. As I understood, it was a treaty governed by

6 the 1969 Vienna Convention on the Law of Treaties.

7 There is not such a difference from the point of view

8 of Public International Law, between agreements and

9 treaties. There is some difference in the American

10 practice but not in International Law practice.

11 Q. Have you seen a copy of that Agreement on

12 Friendship and Co-operation?

13 A. Yes, I read it.

14 Q. Now, can you tell the Court what other

15 treaties existed between Bosnia and Herzegovina and

16 Croatia in 1993?

17 A. I -- Mr. President, I quoted all of that

18 which I collected from the Croatian Ministry of Foreign

19 Affairs, and I can quote them again.

20 Q. Please, tell me what they are.

21 A. I read a few.

22 Q. Just tell me what they are.

23 A. Just a moment. Both countries were victims

24 of aggression from the Federal Republic of Yugoslavia.

25 Both countries got their independence in that very

1 unhappy time for both of them, and because the treaties

2 of the predecessor state do not regulate the bilateral

3 relations between successor states, a new set of

4 treaties must be concluded between all successor

5 states. In this respect, I find -- I'll find. Just a

6 moment. There were very few treaties before January

7 1993. Just a moment.

8 I mentioned the agreement between

9 governments -- I mentioned the agreement between

10 governments of Bosnia-Herzegovina and Croatia before

11 the international recognition of Bosnia-Herzegovina and

12 before of proclamation of Bosnia-Herzegovina, so one

13 can suspect, in the real nature of that agreement, it's

14 of -- it's of -- I think in -- on refugees in Croatia.

15 I mentioned that treaty -- excuse me. I

16 cannot find here everything I wanted.

17 There was an agreement of 14th of April that

18 the diplomatic and consular missions of Croatia and

19 Bosnia-Herzegovina abroad will protect interests of

20 nationals of the other state party where only one of

21 them had such a mission. I know personally that that

22 agreement was applied, because at that very time I

23 was -- I happened to be in Brussels at the conference

24 on former Yugoslavia. The representatives of

25 Bosnia-Herzegovina and Croatia in that city were in

1 close co-operation.

2 Then came the Agreement of Friendship and

3 Co-operation of 21st July, 1992. After it, 25th of

4 July agreement on establishment of diplomatic relations

5 between two states.

6 As I know, until January 1993 there were no

7 other bilateral treaties, but for the -- for the

8 existence of the international armed conflict,

9 important is the faith of those bilateral treaties in a

10 situation of an armed conflict like that which happened

11 in Bosnia-Herzegovina. No party cancelled any of those

12 agreements.

13 Q. So your testimony, in response to my

14 question, was there were very few such agreements,

15 perhaps two or three at the most?

16 A. Probably four or five.

17 Q. Four or five. All right. Now, let me ask

18 you: You said that at the outbreak of hostilities,

19 certainly normal diplomatic relations is a measure of

20 whether or not there is or is not international armed

21 conflict. Were you aware, Professor Degan, that after

22 the embassy of Bosnia and Herzegovina was established

23 in Zagreb, that the funds supporting that mission in

24 Zagreb were seized?

25 A. I didn't know. I don't know for that.

1 Q. Now, is the seizure of funds of a diplomatic

2 mission in Croatia normal? Is that an indication that

3 diplomatic relations between the two sovereign states

4 is conducted in a normal fashion?

5 A. If it really happened, then it would be in

6 breach of the 1961 Vienna Convention of diplomatic --

7 of diplomatic relations. I don't know for that what

8 you allege here, but even if such an unlawful act was

9 committed, it did not bring to the rupture of

10 diplomatic relations.

11 Q. Now, you testified as well that the citizens

12 who -- from Bosnia and Herzegovina, the Muslims who

13 found refuge in the Republic of Croatia, you said that

14 no citizen was forcibly repatriated; is that correct?

15 A. They were not forcefully repatriated to

16 Bosnia-Herzegovina, and that was the practice of

17 belligerents in two world wars or even in French

18 Prussian war of 1870, '71. Most of them wanted to go

19 to third states, that's true, but that's not a measure

20 of a belligerent state if it allows them to go, for

21 instance, to Germany or to Switzerland.

22 Q. Can it force them to go to a third state?

23 A. That you allege, not me.

24 Q. I'm not alleging anything, Professor.

25 A. Probably.

1 Q. I'm asking you if a state can forcibly send

2 citizens who seek refuge into in this case the Republic

3 of Croatia, can send those citizens to a third state?

4 A. Croatia, in that very time, do you think it

5 was -- it happened in 1992 or 1993?

6 Q. 1993.

7 A. 1993. Still the situation with a mass of

8 displaced persons and refugees in Croatia was

9 difficult. Croatia got some help for refugees and

10 those persons, but there were too many, that perhaps

11 something happened what you said here, I don't know.

12 Q. Is it your testimony --

13 A. It was not -- it was not an act of a

14 belligerent state.

15 Q. Is it your testimony that Croatia did not

16 repatriate back to Bosnia any Muslim refugees in 1993?

17 A. As I know, it did not.

18 Q. Now, let me ask you, you testified that

19 Croatia also supplied arms to --

20 A. Yes.

21 Q. -- Bosnia and Herzegovina, and you indicated

22 that that was an indication of normal state relations?

23 A. Yes.

24 Q. Are you aware, Professor, that when the

25 Bosnian -- Croat Bosnian Muslim war broke out that the

1 Republic of Croatia stopped sending arms to the Bosnian

2 Muslim forces?

3 A. The Defence counsel told me they had two

4 testimonies which will follow me who will talk about

5 that problem. Certainly I am not a person to testify

6 to that.

7 Q. Let me show you some documents as my next

8 exhibit, and while these are being prepared perhaps,

9 Mr. President, we could go into private session with

10 these particular documents.

11 JUDGE JORDA: All right. It's almost five to

12 one. Do you have a lot of questions? I suppose quite

13 a few.

14 MR. HARMON: On these documents,

15 Mr. President, it will just take a few minutes, but I

16 think it's best we proceed in private session.

17 JUDGE JORDA: All right, we'll move into

18 private session.

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1 --- On resuming at 2.35 p.m.

2 (Open session)

3 JUDGE JORDA: Resume the hearing now.

4 Registrar, have the accused brought in, please.

5 (The accused entered court)

6 JUDGE JORDA: And have the witness brought in

7 as well, please, Professor Degan.

8 (The witness entered court)

9 JUDGE JORDA: Good afternoon, Professor, have

10 you rested up a bit? Is everything all right? All

11 right, we will continue with the cross-examination.

12 Mr. Harmon.

13 MR. HARMON:

14 Q. Yes, thank you, good afternoon Mr. President,

15 Judge Shahabuddeen, Counsel, and good afternoon

16 Professor Degan.

17 A. Good afternoon, sir.

18 Q. During your testimony you stated that, and

19 I'm quoting you from the transcript on your point A,

20 "The outbreak of war has as its immediate effect

21 rupture of diplomatic and consular relations between

22 belligerent states. Nothing similar happened between

23 Bosnia-Herzegovina and Croatia. Embassies of the two

24 states of Zagreb and Sarajevo respectively exercised

25 unimpeded all of their functions since the

1 establishment of diplomatic relations near the end of

2 1992."

3 If I could have the assistance of the usher,

4 I would like to pass out the next exhibit.

5 THE REGISTRAR: This is document 559.

6 MR. HARMON:

7 Q. Professor Degan, this document consists of

8 two documents appended together. The first is a

9 communication from the ambassador of Bosnia and

10 Herzegovina in Croatia to the president of the

11 presidency, Mr. Alija Izetbegovic. And she indicates

12 in her letter, "Please find attached information of the

13 freezing of the account of the embassy which in effect

14 renders the operation of the embassy impossible." And

15 this is dated January the 7th, 1994.

16 Now, the second part of this document, please

17 take some time to read it.

18 A. Do you have a text in English? It's more

19 useful to me.

20 Q. I have a translation that is unofficial,

21 so --

22 A. All right, then I will look at the original.

23 Q. Yes, please.

24 JUDGE JORDA: Do you have relevant parts that

25 you want to have read out? Because the Judges would

1 like to have the translation once the witness has

2 looked at the document.

3 MR. HARMON: Perhaps we could put it on the

4 ELMO and the interpreters could read the second -- is

5 it possible that the interpretation booth could read

6 this document in French and in English?

7 THE INTERPRETER: The entire document?

8 JUDGE JORDA: If you allow for the transcript

9 it would be better that somebody in the courtroom were

10 to read the document and then if possible we could ask

11 the witness to read it.

12 MR. HARMON: I will ask the witness to assist

13 us in reading the document.

14 JUDGE JORDA: Or Mr. Nobilo.

15 MR. HARMON:

16 Q. Thank you, Professor, if you would read the

17 document, both documents, then, starting with --

18 A. I have two pieces, but I think that's one

19 document.

20 Q. Could you read the first page of the

21 document, the short letter?

22 THE INTERPRETER: I'm sorry, this is not the

23 document we have on the ELMO. This is not the

24 document.

25 MR. HARMON: I need to put another document

1 on the ELMO, first, the first page. We are now in a

2 position if you would kindly assist us in reading the

3 document.

4 THE REGISTRAR: Let me also remind the

5 witness that he should read slowly, a bit more slowly

6 than he was doing, for the interpreters.

7 A. That document was addressed to the president

8 of presidency of Bosnia-Herzegovina, Mr. Izetbegovic,

9 to the government of the Republic of Bosnia-Herzegovina

10 and to the Minister of Foreign Affairs who was at the

11 time Mr. Ivan Ljubjankic.

12 Now I proceed reading each in original Croat

13 or Bosnian language.

14 "Please find attached information concerning

15 the freezing of the account of the embassy which

16 practically makes it impossible for the embassy to

17 operate."

18 The document is dated 7th of January, 1994.

19 "Embassy of the Republic of Bosnia and

20 Herzegovina, Zagreb. Reference: Explanation of the

21 impossibility of allocating resources from the

22 nonresidential account of the embassy of the Republic

23 of Bosnia and Herzegovina in Zagreb because the

24 resources were blocked on the 6th of January, 1994.

25 "On the 6th of January, 1994, the embassy of

1 the Republic of Bosnia and Herzegovina was informed by

2 Zagrebicka Banka, a bank, address Savska number 60,

3 foreign services department. The council of legal

4 officers of the mentioned bank passed a decision to

5 block the resources on the nonresidential account of

6 the embassy of the Republic of Bosnia and Herzegovina

7 up to 260.202 Deutschemark, German marks. The decision

8 was passed on the basis of the ruling of the district

9 economic court in Zagreb, number R1, 162/93, on the

10 basis of reference number 393387/93. Proceedings

11 related to this have not been completed yet. From a

12 economic point of view the embassy of the Republic of

13 Bosnia and Herzegovina in Zagreb is not in a position

14 to use its own resources on this account or the

15 resources from possible inflows which makes it totally

16 impossible to operate on the territory of the Republic

17 of Croatia. Also the fact should be highlighted that

18 foreign exchange payments in cash are in contravention

19 of the legal provisions of the Republic of Croatia from

20 this field and the cash payments in the currency of the

21 Republic of Croatia, the Croatian dinar, makes it

22 impossible for the embassy of Bosnia and Herzegovina to

23 use tax facilities as a diplomatic representation and

24 tax alleviation to which it is entitled. Otherwise,

25 all enterprises have to take a certain amount of cash

1 payments by way of a tax up to a certain percentage

2 depending on the goods being purchased. In addition to

3 that, even in the case of cash payments without tax

4 facilities or tax exemptions it is very difficult to

5 provide for the conversion of larger sums of foreign

6 currencies into the currency of the Republic of Croatia

7 in official exchange offices. The accounting

8 department of the embassy of the Republic of Bosnia and

9 Herzegovina."

10 INTERPRETER: The date is not on the ELMO.

11 MR. HARMON:

12 Q. Thank you very much for your assistance,

13 Professor Degan. Let me ask you some questions about

14 this document now and then I will permit you to make

15 some comments on the document. But first of all, this

16 document shows there was apparently a domestic court

17 decision that attached some kind of a lien against the

18 assets of the Bosnian embassy. Do you agree with me on

19 that?

20 A. This document proves that a bank blocked the

21 funds, and it's obviously in violation of the 1961

22 Vienna Convention on diplomatic relations. It is not

23 the act of state. And that is what I could also

24 comment, is that it happened on 7th of January, 1994.

25 That's just before the time of the Washington agreement

1 with which the armed conflict in Bosnia-Herzegovina was

2 stopped.

3 Q. Let me ask you, are you aware that this, that

4 in spite of repeated requests by the Bosnian embassy to

5 the Croatian embassy that those funds remained frozen

6 for at least eight months?

7 A. I don't see it from this text.

8 Q. I'm giving you information and asking you, in

9 respect of the information that I have provided you,

10 while this does not appear to be an act of state,

11 should the state immediately regulate a problem of this

12 nature involving an embassy of a separate sovereign

13 state?

14 A. The state was obliged to prevent such acts,

15 but -- can I add? I don't see the personal

16 responsibility of Mr. Blaskic in the Lasva Valley for

17 such an unlawful act.

18 Q. I can assure you he didn't seize these

19 funds.

20 JUDGE JORDA: That's not the question that

21 was asked of you, Professor. You're very adroit, but

22 that is not quite the question he asked.

23 MR. HARMON:

24 Q. Let me change the subject to a different

25 direction and ask you, Professor Degan, if in 1993, was

1 there, in fact, a war going on in the Lasva Valley

2 between forces of the Bosnian government and the HVO?

3 A. Yes, it was an internal armed conflict

4 between the army of Bosnia-Herzegovina and the HVO.

5 Q. Was Croatia allied with the HVO in that

6 conflict?

7 A. I think it was unhappily involved in such an

8 internal armed conflict, it was involved on both sides

9 but mostly on the part of the HVO.

10 Q. So your testimony is that, as far as you

11 know, in the conflict between the Bosnian Muslims and

12 the Bosnian Croats, the Republic of Croatia supported

13 the HVO?

14 A. I was told that at that time there was some

15 help at least for passage of arms of ammunition through

16 Croatian territory to the other side in the conflict.

17 Q. Do you know, though, aside from what you were

18 told, whether the Republic of Croatia, which side of

19 the conflict the Republic of Croatia supported in 1993?

20 A. It was in between, but it was mostly friendly

21 to the HVO.

22 Q. Now, let me ask you, then, do you know who

23 General Bobetko is?

24 A. Yes.

25 Q. General Bobetko is a Croatian General who was

1 appointed as the commander of the southern front --

2 A. Yes.

3 Q. Commanding Croatian units in the southern

4 front; is that correct?

5 A. Yes.

6 Q. Now, let me show you Exhibit 406/10.

7 Mr. Dubuisson, while this is being shown on

8 the ELMO, if you could get 406/16 and 406/20, it would

9 expedite the matter.

10 Professor, you have in front of you

11 Prosecutor's Exhibit 406/10, and this is an order dated

12 the 20th of April, 1992 by General Bobetko, and in it

13 you will see and can see that General Bobetko appoints

14 officers of the HVO.

15 A. Yes.

16 Q. I would very much appreciate your views on

17 this particular document, given that this is a Croatian

18 General appointing Bosnian Croats to positions within a

19 military of a separate sovereign state. What is your

20 view on this, sir?

21 A. My view is that it happened in time of joint

22 operations of HVO and army of Bosnia-Herzegovina and

23 Croatian army against Serbian forces. It was dated

24 20th of April, 1992. And on this list I don't see the

25 name of Mr. Blaskic.

1 Q. Okay, now if I could show you 406/16 and

2 406/20. Professor, we will start with 406/16, it is a

3 document dated the 19th of May 1992.

4 A. Before the critical period.

5 Q. And let me ask you, Professor, this is a

6 document that establishes a command in Central Bosnia,

7 in Gornji Vakuf, and it appoints Brigadier Zarko Tole

8 as commander of that particular command.

9 The second document, Professor, is dated the

10 14th of June, 1992, and it is also from General

11 Bobetko, and it is, if you turn to paragraph 3.1 on

12 that document, it is an order for offensive operations

13 in which General Bobetko orders forces of the HVO to

14 move in certain directions and take certain actions in

15 a military campaign. What is your reaction to these

16 documents?

17 A. My reaction is the same. It happened before

18 the critical period for which the General Blaskic was

19 accused, and that was the period of alliance of army of

20 Bosnia and Herzegovina, HVO and Croatian army in the

21 battle against the Serbian enemy. That's my comment,

22 and I forgot.

23 Q. Professor, did Croatian soldiers fight

24 against Bosnian army forces in Bosnia in 1993?

25 A. I saw some documents which prove the presence

1 of some units of the Croatian army, not in the Lasva

2 Valley, but in some other parts of Herzegovina, and the

3 border region between Bosnia and Herzegovina.

4 Q. My question is not just the presence of

5 Croatian soldiers in Bosnia, my question to you was:

6 Did Croatian soldiers engage in armed conflict --

7 A. Yes.

8 Q. Against the forces of the legitimate

9 government of Bosnia and Herzegovina?

10 A. Yes, from those documents, it proceeds they

11 were engaged in the battle. But it's the tricky

12 question whether before that unhappy armed conflict

13 both armies recognised themselves, and is the question

14 whether even the government of Bosnia-Herzegovina

15 recognised the HVO, and vice versa.

16 But I must agree that the presence of some

17 units of Croatian army, although they were probably

18 mostly originating from Bosnia-Herzegovina, as I was,

19 and although they were not very distinguishable from

20 the HVO, was an unlawful armed intervention in that

21 unhappy internal armed conflict.

22 MR. HARMON: Mr. President, at this time I

23 need to show the witness certain documents under seal,

24 and if we could go into private session I would like to

25 show him certain documents and ask for his comments.

1 Mr. Dubuisson?

2 JUDGE JORDA: Objection?

3 MR. HAYMAN: None.

4 JUDGE JORDA: Very well. We'll move for --

5 into a private session for a few moments.

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22 (Open session)

23 MR. HAYMAN:

24 Q. Professor, you were asked about the conflict

25 between Japan and China in 1938 and whether there was a

1 formal declaration of war in 1938. In that conflict

2 were the other factors you've identified for an

3 international armed conflict, other than a formal

4 declaration of war, were they present?

5 A. Yes. It was an ongoing armed conflict which

6 in fact started in 1928 with the Japanese bombing of

7 the city of Shanghai, and later on there was invasion

8 and occupation of Manchuria and creation of a puppet

9 state of Pandrakua, and if I remember well, in 1937

10 there was a full-fledged offensive by Japanese army to

11 the northern part of China, and they came to the bridge

12 of Peking. They stopped, and then it was recognised by

13 both states that war existed. In that specific

14 conflict both parties had interests for the time being

15 not to recognise the state of war.

16 The Chinese government, both the quantities

17 of arms from the United States, if they recognised the

18 state of war because of the isolationist policy of the

19 United States of that time, it would be stopped.

20 On the other side, Japan did not want to

21 recognise the war for not being aggressor in that war.

22 So it was an unusual situation, and I can prove that

23 the international armed conflict between Japan and

24 China started at least 1937.

25 MR. HAYMAN: I have a document if I could

1 have assistance to hand out, this is the letter of 21

2 April, 1993 that the Professor referred to earlier in

3 his testimony, and I wanted to put that into the record

4 and have him identify it as such.

5 JUDGE JORDA: Can we have the number for the

6 Stoltenberg report that was requested by the Trial

7 Chamber? What is the Defence number for that?

8 THE REGISTRAR: For that document, the

9 Stoltenberg report, it is D469; and this one is 470.

10 JUDGE JORDA: Thank you.

11 MR. HAYMAN:

12 Q. Professor, I would like to ask you, is this

13 the letter that you were referring to earlier in your

14 cross-examination?

15 A. Yes.

16 Q. And would you agree in paragraph 4 of this

17 letter that the permanent representative of

18 Bosnia-Herzegovina to the United Nations at the time

19 referred to the conflict in Central Bosnia as a

20 conflict between local leaders?

21 A. Yes.

22 Q. Thank you.

23 A. I quoted it.

24 Q. You were asked about examples of military

25 intervention, including unlawful military intervention,

1 as opposed to a state of international armed conflict,

2 and the two examples mentioned by the Prosecutor were

3 the American bombings of Libya and Afghanistan.

4 Can you give the Court any other examples of

5 military interventions, including unlawful military

6 intervention, as distinguished from a state of

7 international armed conflict?

8 A. Certainly. For instance, the Soviet

9 intervention in Prague, Czechoslovakia in 1968, it

10 generated into an occupation of the country which did

11 not last for a long time because there were some new

12 agreements with the puppet Czechoslovak regime, and

13 there were also armed interventions by the United

14 States, in the Dominican Republic, 1965, that was an

15 intervention of I think six member states of the

16 organisation of American states, including the U.S.

17 Army.

18 There was an intervention in Grenada by the

19 United States which lasted at least for some weeks in

20 the period of the Reagan Administration. That which

21 was the bloodiest was probably the American armed

22 intervention of Panama. If I remember well, it

23 happened 1980. It lasted for some time. The Panama

24 City was bombed and there were many civilian

25 casualties.

1 Q. Thank you for those additional examples. You

2 were asked about provision of military assistance, and

3 to what extent the existence of such aid or the absence

4 of such aid may indicate the presence or absence of an

5 international armed conflict.

6 May it also be an indicia of the presence or

7 absence of an international armed conflict if a state

8 sells munitions to another state or if that state

9 allows the transhipment of munitions through its

10 territory to the other state? Could you comment?

11 A. It would be proof to the opposite.

12 Q. Namely?

13 A. For instance, the United States massively

14 helped Israel, by arms and credits, and Israel

15 committed some acts of unlawful intervention against

16 third states, mostly in Lebanon, but there were not

17 acts of the United States government.

18 Q. Now, let me ask you about the reverse, that

19 is, if, for example, Croatia, in 1993, did not donate

20 arms to the BH army, but if they allowed the

21 transhipment of arms through the Croatian territory to

22 the BH army and sold arms to the BH army, is that an

23 indicia in any way of the presence or absence of an

24 international armed conflict between Croatia and

25 Bosnia-Herzegovina?

1 A. It was a proof of the absence of the armed

2 conflict between those two sovereign states.

3 Q. Thank you, Professor.

4 MR. HAYMAN: I have no further questions, Mr.

5 President.

6 JUDGE JORDA: Thank you very much,

7 Mr. Hayman. Let me now turn to my colleague, Judge

8 Shahabuddeen. Now you're going to answer questions

9 that the Judge wishes to ask you.

10 JUDGE SHAHABUDDEEN: Professor Degan, I would

11 like personally to welcome you and to thank you for the

12 help which you have come to give the Court in

13 unravelling and understanding many of the complicated

14 issues in a relatively mysterious area of law. Thank

15 you.

16 Now, would I be right, sir, in understanding

17 your presentation?

18 A. Pardon?

19 JUDGE SHAHABUDDEEN: In understanding your

20 presentation -- perhaps you would like to put on the

21 earphone, because I'm a chronically soft speaker. I

22 ought to apologise to you.

23 Would I be right in understanding your

24 presentation to be based essentially on the distinction

25 between an international armed conflict and an armed

1 intervention?

2 A. Yes. In fact, armed intervention is an

3 unlawful act if it's not authorised by the Security

4 Council or if it doesn't happen in self-defence. I

5 tried to explain here that some sorts of armed

6 intervention can generate into international armed

7 conflicts, but not all.

8 JUDGE SHAHABUDDEEN: I give you time to think

9 it out, not that you need to think it out.

10 A. But we should also discuss the different

11 levels of intervention in International Law.

12 JUDGE SHAHABUDDEEN: Well, Professor, would I

13 also be right in thinking that your application of that

14 distinction to the facts of this case, as you

15 understand the facts, means this: Yes, Croatia had

16 armed forces within Bosnia-Herzegovina, but that

17 amounted not to an international armed conflict but

18 only to armed intervention; is that your position?

19 A. Yes, my position was that it was probably an

20 unlawful armed intervention.

21 JUDGE SHAHABUDDEEN: Then would I also be

22 right, sir, in understanding you to mean that in

23 determining whether there was an international armed

24 conflict, two criteria were applicable. One, the

25 duration in time of the relationship of hostility; and

1 two, the intensity of the hostility?

2 A. I tried to explain that there are many

3 elements, some elements of existence of international

4 armed conflicts are provided in Article 2 of the 1949

5 Geneva Conventions, and one in Article -- first of the

6 protocol of 1977, and I added some other criteria, so

7 the sum, or all those criteria applied on the actual

8 situation could lead to a conclusion whether an

9 international armed conflict existed or not.

10 JUDGE SHAHABUDDEEN: I accept that. May I

11 rephrase it this way: That your presentation suggested

12 that two of the most applicable criteria in the

13 circumstances of this case were, one, the duration in

14 time of the hostilities, and two, the intensity of the

15 hostilities?

16 A. They are among other criteria. I tried to

17 prove on the basis of some other criteria from the

18 wartime practice that it was not an international armed

19 conflict.

20 JUDGE SHAHABUDDEEN: In other words, I would

21 understand your position, I'm sure everybody would

22 think it most reasonable, that the final conclusion

23 would depend on the facts of each case; is that right?

24 A. Yes, but there is another tricky problem

25 before the criminal jurisdiction like this one, the

1 personal guilt of an accused person; but that's what

2 happened.

3 JUDGE SHAHABUDDEEN: Sometimes the problem is

4 apt to be complicated by this reflection which

5 experience will be that ever so often words used by one

6 party or another do not exactly match the facts?

7 A. It sometimes happens, but I think not so much

8 in relations between Bosnia-Herzegovina and Croatia,

9 because there were some declarations from which it

10 could be concluded that an international armed conflict

11 didn't exist.

12 JUDGE SHAHABUDDEEN: You would say that is a

13 complicating factor in the analysis?

14 A. Happily for us lawyers, our profession would

15 not exist if all facts are simple.

16 JUDGE SHAHABUDDEEN: Exactly so, exactly so.

17 Now, I have a problem on the bench in that

18 unfortunately I didn't take a note of the exhibit

19 number of a certain document. So I will hold it up and

20 hope that our registrar and counsel will be able to

21 come to my help. It's a statement of the government of

22 the -- 556A, I wonder if the registrar would be so kind

23 as to put it before you.

24 Now, would you very kindly turn to page 2,

25 paragraph 3. This is a statement made on 13th of May,

1 1993. Now, in paragraph 3 you see references being

2 made by Bosnia-Herzegovina to partition of Bosnia and

3 Herzegovina, its confederalisation and so forth. In

4 other words, Bosnia-Herzegovina is accusing Croatia of

5 making statements of this kind. You see that part?

6 A. Yes.

7 JUDGE SHAHABUDDEEN: Now, I'm not asking you

8 whether you agree or not that such statements were

9 made. I am only asking you about your reaction to the

10 distinction suggested between partition of Bosnia and

11 Herzegovina and its confederalisation. Do you see a

12 distinction there?

13 A. I could not say that such declarations of

14 which I am aware proves the objective situation of

15 international armed conflict, but I agree with you that

16 that was an unhappy policy from the Croatian side which

17 did not help the mutual trust between not only Croats

18 and Bosnians in Bosnia-Herzegovina, but also with the

19 decent Serbian population of that country. Thank you.

20 JUDGE SHAHABUDDEEN: Let me pick your fertile

21 brain a little further. Would I be right, Professor,

22 in understanding this reference to partition on the one

23 hand and confederalisation on the other to mean this:

24 That in the case of confederalisation the component

25 units of Bosnia-Herzegovina would remain within the

1 same state, but that in the case of partition, this

2 would not be so, the state would split into two

3 different states on the plane of international

4 relations. Is that understanding right or wrong?

5 A. If I remember well of Croatian official

6 declarations, it was not the word of partition in

7 official declarations but of confederalisation or

8 federalisation, probably. Confederalisation and

9 federation are, from the point of view of International

10 Law, the unity is very much different, because

11 confederation is a union of sovereign states, on the

12 basis of an international treaty, and federation is

13 based on the federal constitution.

14 I can only say that those designs did not

15 help to stop the conflict in Bosnia-Herzegovina.

16 JUDGE SHAHABUDDEEN: So do I understand you

17 to mean this: That even in the case of

18 confederalisation, each of the component units would be

19 a sovereign state on the plane of International Law?

20 A. Yes.

21 JUDGE SHAHABUDDEEN: And do I then understand

22 you to mean that each of these two concepts, partition

23 or confederalisation, would rupture the previous

24 integrity of the state of Bosnia-Herzegovina?

25 A. I am very lucky that it did not realise

1 this. The situation was settled first by the

2 Washington Agreement in the beginning of 1994, and

3 finally by the Dayton Agreement. So there were some

4 designs with which personally I don't agree, but

5 happily that internal armed conflict was stopped. It

6 did not generate into an international armed conflict.

7 I hope the same will happen in Kosovo, the development

8 can be very much similar.

9 JUDGE SHAHABUDDEEN: Shall we all observe a

10 little restraint in our references to Kosovo for

11 reasons which would be obvious to you as a

12 distinguished international lawyer.

13 Now, let us talk about partition. Did you

14 ever learn of any allegation of an agreement between

15 the Republic of Croatia and Serbia Montenegro to divide

16 Bosnia-Herzegovina between those two states?

17 A. Your Honour, I read a lot in Croatian press

18 about it criticising it, and I read also in the press

19 that my elderly colleague academician Bilandzic was

20 here testifying on those talks, but I have no personal

21 experience about that. I was not present at

22 Karadjordjevo and I was -- unlike him, I was not, as an

23 expert, involved in the Serbian delegation on working

24 on any maps. It was the position I liked.

25 JUDGE SHAHABUDDEEN: Professor, I don't know

1 who was at Karadjordjevo and who was not, and, of

2 course, I take it from you you were not there, but you

3 had heard that there was an agreement made at

4 Karadjordjevo between the Presidents of Croatia and

5 Serbia Montenegro to divide Bosnia-Herzegovina between

6 those two states. Did you hear of that in the press or

7 otherwise?

8 A. There were accusations by Croatian opposition

9 of the policy of the Croatian president in that

10 respect, but I have no data or documents that it

11 happened or that it didn't happen.

12 JUDGE SHAHABUDDEEN: Let me put it

13 hypothetically this way to you: If the Court should

14 find that there was an agreement between Croatia and

15 Serbia Montenegro to divide Bosnia-Herzegovina between

16 them, then would you say that that would influence your

17 position that the presence of Croatian armed forces in

18 Bosnia-Herzegovina mounted only to an armed

19 intervention and not to an international armed

20 conflict?

21 A. Probably my view would be that that was a

22 political cause, very serious cause for the conflict,

23 but that still that conflict remained on the level of

24 an internal armed conflict.

25 JUDGE SHAHABUDDEEN: Let me ask you another

1 question of fact. Did you learn of any allegations to

2 the effect that the Republic of Croatia planned to

3 annex Herceg-Bosna as a component part of the Republic

4 of Croatia after Bosna-Herceg would have succeeded in

5 severing its ties with Sarajevo?

6 A. Personally, I don't know on that, but I know

7 even before the aggression of the Yugoslav army against

8 Bosnia-Herzegovina happened some factions of population

9 only in Herzegovina wanted to -- they wanted to join

10 Croatian with their territory, but you know, my

11 personal situation is very much different. My family

12 lived in Sarajevo where Croats are a minority. My

13 mother died there, and I was born in Bosanski Brod,

14 that's a small city on the boarder line with Croatian

15 on the river of Sava and populations from Bosanski

16 Posavina and Sarajevo really did not want to change the

17 boarder lines of Bosnia-Herzegovina. I could say the

18 most of that population. Maybe there were some

19 extremes. I really don't know whether the most of

20 Croats from Herzegovina really wanted to join the

21 Croatian state or not.

22 JUDGE SHAHABUDDEEN: Professor, I didn't know

23 of these personal difficulties which you and your

24 family suffered, and I take the opportunity of letting

25 you know very sincerely how deeply I sympathise with

1 you. I really mean that.

2 Now, tell me this: Would you say the

3 analysis of the situation is slightly complicated by an

4 opposition between two forces? By this I mean, was it

5 the case that the Republic of Croatia had two competing

6 objectives in Bosnia-Herzegovina? On the one hand, the

7 Republic of Croatia would wish to calibrate with the

8 government with the government of Bosnia-Herzegovina in

9 a common cause against Serbia Montenegro. On the other

10 hand, the Republic of Croatia stood opposed to the

11 government of Bosnia-Herzegovina insofar as the

12 Republic of Croatia supported the HVO in its struggle

13 against the Republic of Bosnia-Herzegovina? Was that

14 the situation, the opposition between two forces?

15 A. Your Honour, probably the political situation

16 in Bosnia-Herzegovina and relations between Croatia and

17 Bosnia-Herzegovina were even more complicated.

18 There were different views, different

19 ambitions of the future of two states and their

20 relationship. There were some extremist views which

21 were friendly to the partition of Bosnia-Herzegovina,

22 but on the other hand, probably on the side of the

23 Bosnian army there were extremists, there were

24 fundamentalists who also committed crimes in that

25 unhappy -- unhappy war.

1 As I remember from my experience, my lifetime

2 in Bosnia-Herzegovina, you will find even now some

3 Croats who are more friendly to Serbs than to Muslims.

4 There are some -- and vice versa. There are Muslims

5 who are more friendly to Croats than Serbs and vice

6 versa, and it's the same with Serbs.

7 It's interesting that in some parts of

8 Bosnia-Herzegovina that friendship between all three

9 groups survived even this disastrous war. For

10 instance, the small city of Visoko and some other

11 places. But because of some historic events in some

12 other part, in eastern Herzegovina, there were clashes

13 between Serbian and Muslim sides, in the beginning on

14 the First World War, at the end of that war, in the

15 Second World War and so on. And unfortunately, if I

16 understand well, in those regions of Bosnia-Herzegovina

17 where Croats are in some majority, there was a

18 sentiment more friendly to Serbs than to Muslims.

19 Also, I found many Muslims from Mostar who are not --

20 who are hostile to Croats from Herzegovina. So the

21 situation is very complicated, and everybody suffers

22 for it. Maybe it's not the answer which satisfies you,

23 but the picture is not black and white.

24 JUDGE SHAHABUDDEEN: Then -- I appreciate

25 that very much. That is not the least of the problems

1 which the bench has to face. The picture is not black

2 and white. We have to navigate very carefully between

3 facts which are not all easily reconcilable.

4 So I come to my last question on which I

5 would like the benefit of your assistance. I've put to

6 you, my impression is that you accept it in substance,

7 that the Republic of Croatia was pursuing two competing

8 aims in Bosnia-Herzegovina. On the one hand, it would

9 like to have Sarajevo in a common struggle against the

10 Serbs. On the other hand, it was opposed to Sarajevo

11 insofar as it supported the HVO in its struggle against

12 Sarajevo.

13 Now, the question which I put to you is

14 this: Would you say that insofar as the Republic of

15 Croatia offered military assistance to Sarajevo, that

16 assistance was rendered in pursuance of the first aim,

17 and that aim was to help Sarajevo in the common cause

18 which the two governments were prosecuting against the

19 Serbs. It had nothing to do with the help which

20 Croatia was giving to the HVO?

21 A. Your Honour, in the Croatian government there

22 were some people from Herzegovina who probably followed

23 the line of the conflict with Bosnia-Herzegovina, and

24 perhaps of its partition. So the situation is so

25 complicated that I would not like to give you my

1 opinion on that.

2 JUDGE SHAHABUDDEEN: Then, Professor, it

3 remains for me to say how much I appreciate the guarded

4 terms of your reply, and to wish you well.

5 A. Thank you Your Honour.

6 JUDGE JORDA: Professor Degan, I would like

7 to add my thanks to yours for Judge Shahabuddeen's

8 contribution, which characterises his traditional

9 modesty. Of course, things are not always black and

10 white, and frequently we have arguments over the grey

11 areas.

12 I have very few questions for you. For my

13 two or three questions, I would like to go back to the

14 distinction you made when you characterised the

15 situation that we have to judge, that is the

16 distinction between the international armed conflict,

17 legally speaking, which was well constituted, and for

18 which I would like to congratulate you for your

19 competence which you showed.

20 You also indicated the fact that there was a

21 certain duration and a certain intensity. I don't want

22 to go back to what the Prosecutor already asked or

23 those that my own colleague Judge Shahabuddeen asked,

24 but I would like to know within this concept of

25 intensity you include a constitution of

1 Bosnia-Herzegovina, and, therefore, of the HVO. How

2 would you characterise, in respect of the international

3 armed conflict, the assistance and support to the

4 constitution of a kind of confederation which is known

5 as a political administrative entity, that is

6 Bosna-Herceg, or do you put that back into the duration

7 and intensity which are the two major factors in the

8 international armed conflict?

9 A. Your Honour, I am not very pleased that I did

10 not have the opportunity here to present my entire text

11 which is made up of 40 pages in which the different

12 problems which are the subject of the many questions

13 that the Prosecutor asked are covered.

14 However, I discussed the problems of

15 intensity only in respect of the existence of an

16 international armed conflict. The same criteria should

17 also be present in a domestic conflict within the

18 framework of a single country. And I found that that

19 element was present in armed conflicts between the HVO

20 and the army of Bosnia-Herzegovina, including the Lasva

21 Valley.

22 As regards the establishment of Herceg-Bosna,

23 perhaps in 1990 or 1991 that was an initiative of the

24 local population mostly from eastern Herzegovina, which

25 wanted to join in with the Republic of Croatia, which

1 was in the process of acquiring its full sovereignty

2 and independence.

3 Perhaps it was not so much the ambitions of

4 the Croatian leaders but the desire of the local

5 population, that is the Croatian population, in a part

6 of Bosnia-Herzegovina. I have already said that in

7 Sarajevo, in Bosanska Posavina, the majority of the

8 Croats wanted to maintain the sovereignty of

9 Bosnia-Herzegovina. I don't know whether my answer has

10 satisfied you.

11 JUDGE JORDA: Well, in part it satisfies me,

12 but I might supplement it by asking you whether a

13 situation like the one we are aware of is unique. Is

14 it unprecedented or could you attach it to precedence

15 in other conflicts that are known as international?

16 A. Probably the most similar one would be the

17 one in Lebanon. That would probably be the most

18 similar conflict because in Lebanon there are actually

19 four religions, and within each religious community

20 there were factions that fought against one another.

21 There were different types of Sunnis, Shiites,

22 Christians. The situation in Lebanon was very

23 complicated, and I was pleased to have a colleague

24 among the members of the members of the Institute for

25 International Law who came from Beruit, and when the

1 conflict in the former Yugoslavia began, I asked him

2 what we should do under the conditions of internal or

3 international armed conflict.

4 JUDGE JORDA: Thank you very much. I have

5 only one other question to ask you. You have alluded

6 to -- actually, more than alluded to the

7 intervention -- an intervention of that type would

8 certainly commit the criminal responsibility of the

9 leaders. I'm a criminal Judge, therefore, this was of

10 interest to me; therefore, I would like to know what

11 leaders.

12 And my second question, at what point do you

13 stop the chain of command or the chain of the leaders?

14 Could you make a comment on that?

15 A. Unfortunately, Your Honour, the crimes

16 committed against peace were covered only in the

17 Nuremberg Tribunal statutes and the Tokyo Tribunal

18 statutes. Afterwards, we have a definition for crimes

19 of aggression in the Code that was drafted by the

20 International Law Commission.

21 We know what happened during the conference

22 in Rome. By adopting the Statute for the future

23 International Criminal Court, there was an Article

24 which provided for the jurisdiction of that new court

25 which would be to punish crimes of aggression, but no

1 provisions were made for a definition of aggression.

2 That problem was postponed for the conference which is

3 to take place seven years after the entry into force.

4 JUDGE JORDA: Let me stop you there. Let me

5 stop you there, because I do know that my question --

6 I'm sure it's my fault and it's my question that led

7 you a bit astray from where I wanted you to go.

8 A. Pardon me, Your Honour.

9 JUDGE JORDA: I realise you want to finish

10 what you have to say about the International Court but

11 I have another question I wanted to get into. Well, go

12 ahead. Your great knowledge allows me to give you back

13 the floor, but please be brief.

14 A. Thank you, Your Honour. The contracting

15 parties did not want to give jurisdiction to the Court

16 over that crime. In my opinion, the definition of

17 crimes against peace and crimes against -- crimes of

18 aggression show that it is only the political leaders

19 or the military leaders at the highest levels who could

20 be accused should a criminal court be endowed with such

21 jurisdiction, which is the not the case today.

22 JUDGE JORDA: Yes. I think that we've got a

23 bit aside from where I wanted to go. I had not

24 properly interpreted something that you were saying.

25 You were saying that it was not an international

1 conflict, in some sort of way it was a legal

2 intervention with this being understood by the Croatian

3 leaders, which continued over a certain amount of time

4 with a certain intensity, but that's not what

5 characterises international crimes. But such

6 initiatives could bring with them criminal

7 responsibility I had thought, and this is my question,

8 that you were getting away from Article 2, but that you

9 were leaving open the entire scope of the Tribunal's

10 statute, which is, of course, not the great

11 International Court that we're all expecting and

12 waiting for, but which do exist in this institution

13 where you've come today. Perhaps I was wrong. Perhaps

14 you were only thinking of crimes of aggression.

15 A. Yes, I was thinking about crimes of

16 aggression. I compared the situation with the

17 Nicaragua case before the court in The Hague, which did

18 not have the jurisdiction to punish the President of

19 the United States. That was my intention.

20 JUDGE JORDA: We can allow the other

21 institutions to think about what you have to say. As

22 far as I'm concerned, I have said all I have to say.

23 You might be surprised to see we're not

24 wearing robes. That is because one of our colleagues

25 is unavailable, which means that with the agreement of

1 the accused and the Defence, we are acting as presiding

2 officers in order to hear your testimony. It is

3 self-evident that has consequences, both legal and

4 judicial, that is, our third colleague, who we are

5 pleased to hear is getting better, when he reads the

6 transcript may have some questions to ask you, may

7 have, and that means that you might have to come back

8 again and then we would have the pleasure of listening

9 once again. I know that's not a convenient thing for

10 you and I'm sorry, but I have nothing further to say to

11 you.

12 I would like to speak for my colleague, who

13 has already said this, and myself, to thank you for

14 coming here. I apologise to the interpreters, but I

15 didn't want to interrupt the testimony. Now we will

16 try to make up for the time we spent by taking a

17 30-minute not a 20-minute pause. I see the registrar

18 is signalling to me.

19 THE REGISTRAR: No, no, no. I just wanted to

20 know what should be done with the various exhibits that

21 were submitted by this witness.

22 JUDGE JORDA: Mr. Harmon?

23 MR. HARMON: May we briefly go into private

24 session with respect to one of the documents that has

25 been submitted, Mr. President?

1 JUDGE JORDA: Private session, and then we'll

2 take a break until 4.45 and move to the next witness.

3 All right. Let's go into a private session for a few

4 minutes and then we'll take our break.

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20 --- Whereupon the hearing adjourned at

21 5.33 p.m. to be reconvened on Tuesday,

22 the 15th day of December, 1998 at 10.00 a.m.

23

24