1 Thursday, 9 August 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.00 a.m.
5 [The witness entered court].
6 JUDGE BONOMY: Good morning, Professor Markovic.
7 THE WITNESS: Good morning.
8 JUDGE BONOMY: Your examination will now continue.
9 Mr. Zecevic.
10 MR. ZECEVIC: [Interpretation] Thank you, Your Honour.
11 WITNESS: RATKO MARKOVIC [Resumed]
12 [Witness answered through interpreter]
13 Examination by Mr. Zecevic: [Continued]
14 Q. [Interpretation] Good morning, Professor, how are you today?
15 A. Fine, thank you.
16 Q. Professor, yesterday we got as far as November 1998. Between
17 March and November, as you said, you travelled a number of times to talk
18 to members of the representatives of the Albanian community. There were
19 talks with Chris Hill, O'Brien, proposals were made, counter-proposals
20 were made concerning certain documents. Did a document come about as a
21 result of all of that eventually?
22 A. Yes, a document was eventually produced by those involved in the
23 talks, meaning the representatives of all ethnic minorities in Kosovo and
24 Metohija including the Albanians, with the exception of their major
25 political parties on the one hand and the state delegation on the other.
1 The result of those talks was the agreement on self-management or
2 self-administration in Kosovo and Metohija. It was by a joint effort that
3 this policy was formulated. This began on the 12th of March, and then in
4 November the final text was produced. Again, I must emphasise that the
5 representatives of the majority Albanian parties took part in the talks
6 and drafting of this document --
7 THE INTERPRETER: Interpreter's correction: Did not take part in
8 the talks.
9 MR. ZECEVIC: [Interpretation]
10 Q. Professor, can I please ask you to take one thing at a time.
11 Could you please go to tab 42, 1D091. This is the joint proposal on the
12 agreement on self-government in Kosovo and Metohija dated the 20th of
13 November, 1998. Is that the agreement you told us about?
14 A. Yes. This is the agreement. Can I just go through it, please.
15 Yes, yes, this is the agreement. This is in actual fact a joint proposal
16 formulated by those involved in this series of talks in Pristina.
17 Q. Professor, just very briefly please tell us about the crucial
18 points of this agreement, the way you see the crucial points of this
19 agreement as they relate to the autonomy of Kosovo and Metohija.
20 A. This agreement establishes what according to its author should
21 constitute the essence of self-government in Kosovo and Metohija. I will
22 only comment on the principles, not about the operational measures. That
23 can be read in the agreement itself. The substance of the agreement is
24 that Kosovo and Metohija is a multi-ethnic community and that no single
25 ethnic community, regardless of its size, may be allowed to demean or
1 slight any other ethnic minorities. And that's why everyone should be
2 consulted when dealing with issues of major national interest. This
3 mechanism would be set in motion by a special method of decision-making in
4 the Assembly of Kosovo and Metohija as its one major political body.
5 Given the fact that Kosovo and Metohija as part of the Federal
6 Republic of Yugoslavia, of the Republic of Serbia, is a mechanism of
7 representation of the citizens of Kosovo and Metohija in the federal
8 organs, in the republican organs, the functioning of the local police was
9 determined as well as its organisation and a mechanism was envisaged for
10 further amendments to the agreement. This would be it in a very rough
11 outline but I must repeat that Kosovo and Metohija and that is key to this
12 issue, is a multi-ethnic community where no ethnic community may be
13 allowed to exercise any sort of domination or supremacy over other ethnic
14 communities just because of its size.
15 Q. Professor, this political agreement was signed by certain numbers
16 of the representatives of Kosovo's ethnic minorities, was it not?
17 A. Yes, this was signed by all the representatives of all the ethnic
18 minorities that were actually involved in formulating this agreement.
19 Q. What about this agreement that was signed by all the ethnic
20 minorities that were involved in the talks surrounding the agreement, was
21 there access to this agreement by any other interested parties that may or
22 may not have been around?
23 A. No, it was open to anyone, and we would have been very glad for
24 the representatives of the major Albanian parties to be involved in the
25 talks, but as we said yesterday they refused to be involved in these
2 Q. Professor, the agreement was signed by whoever was involved in the
3 talks. Would the delegation of the Republic of Serbia not, nevertheless,
4 have been prepared to consider amendments to the agreement had the
5 representatives of the majority Albanian parties submitted anything like
7 A. We started with a blank sheet of paper. There was nothing on it.
8 Whoever was invited would have been allowed to have a say. The
9 representatives of the majority Albanian political parties had been
10 invited. It was self-implicit that they, too, would have been allowed a
11 say in it. While the agreement was still just a draft, they could have
12 come along at any moment with their own proposals. Those proposals that
13 were up for adoption would have been adopted and those that were
14 unacceptable would have been dismissed, but in a well-founded way.
15 Q. Professor, did President Milutinovic have an active role in the
16 conclusion of this agreement on self-government in Kosovo and Metohija; if
17 so, what exactly was his active role?
18 A. He had an exceptionally active role. Of all the state officials,
19 he was the one most seriously involved in this endeavour. He was
20 involved, both in wording the actual agreement and later on, in trying to
21 gain popular support for the agreement, in trying to advocate the
22 solutions offered therein.
23 Q. Professor, do you remember whether President Milutinovic talked to
24 the representatives of each and every ethnic minority in Kosovo? I'm
25 referring to those that eventually signed the joint agreement.
1 A. He talked to all of them, and he talked to the leaders of all the
2 political parties that were part of the parliament at the time.
3 Q. Serbia's parliament you mean, in order to make sure he had their
4 support, right?
5 A. Yes, that was done in order to secure support, because when the
6 government delegation was appointed it was said clearly that members of
7 all parliamentary groups were invited to come forward with their own
8 candidates to this delegation so that the Assembly might remain united on
9 Kosovo and Metohija and on how to deal with Kosovo and Metohija.
10 Q. Professor, what was the result of these efforts made by President
11 Milutinovic, did he eventually garner any support from any courses?
12 A. Yes, there was support, except, as I said, for the Albanians, or
13 rather, the majority parties; they decided to simply ignore the whole
15 Q. Professor, when was the agreement signed?
16 A. It was signed in late November, in Pristina. A declaration was
17 issued to mark the occasion. It was signed by the representatives of all
18 the ethnic minorities that were involved in the drafting of the agreement,
19 the president of the Federal Republic of Yugoslavia, the deputy prime
20 minister to the federal government, Vladan Kutlesic, and I signed the
21 document on behalf of the Republic of Serbia, I being the deputy prime
22 minister at the time.
23 MR. HANNIS: Your Honour, this particular copy does not have any
24 signatures. I thought I had seen a copy with signatures before. If we
25 are going to be talking about that, I would prefer we use the signed copy.
1 MR. ZECEVIC: The agreement?
2 MR. HANNIS: Yes.
3 MR. ZECEVIC: Well, let me just --
4 MR. HANNIS: I believe I had received one from the Defence but
5 this one is not.
6 JUDGE BONOMY: I don't have in this bundle the original, the
7 original part of the exhibit.
8 MR. ZECEVIC: The original of the agreement?
9 JUDGE BONOMY: Yes.
10 MR. ZECEVIC: Yes, but it is not the signed copy.
11 JUDGE BONOMY: Yes. Well it can't be the original --
12 MR. ZECEVIC: Sorry?
13 JUDGE BONOMY: It can't be the original if it's not signed. I'm
14 saying is the document itself not before us?
15 MR. ZECEVIC: Let me -- just bear with me, Your Honours.
16 JUDGE BONOMY: Yeah.
17 [Defence counsel confer]
18 MR. ZECEVIC: [Interpretation] Your Honours, we can check a bit
19 later and provide the document with the signatures.
20 JUDGE BONOMY: All right. Let's proceed for the moment.
21 MR. ZECEVIC: Thank you.
22 Q. [Interpretation] Professor, when the declaration was signed on the
23 25th of November in Pristina, was President Milutinovic there?
24 A. Yes, he was there, too.
25 Q. Thank you. Professor, let us now move to 1999. Are you familiar
1 with the principles of the Contact Group dated the 30th of January, 1999?
2 A. Yes.
3 Q. Can you please go to tab 49, 1D018, page 414. Professor, you see
4 the principles, right?
5 A. Yes, these are the non-negotiable principles, so-called
6 non-negotiable principles, the fundamental elements.
7 Q. Was it based on these principles or guide-lines that the meeting
8 in Rambouillet was scheduled?
9 A. These were the principles based on which the talks at Rambouillet
10 were to proceed. They were, as the document shows, non-negotiable. They
11 were to be adopted as they were and possibly incorporated into any
12 document that might have arisen based on the meeting between the two
14 Q. Professor, throughout your many attempts to get in touch with the
15 Albanians back in 1998, who in your opinion, or rather, what in your
16 opinion was the crucial -- one crucial principle that you could not agree
18 A. The key principle, due to which the representatives of the
19 majority Albanian political parties did not respond to invitations to
20 attend meetings, is the principle of the territorial integrity of
21 Yugoslavia and its neighbours, neighbouring countries, as well as the
22 sovereignty of Yugoslavia. Therefore, it was that principle that did not
23 suit Kosovo Albanians. And for those reasons most likely they did not
24 take part, they did not respond to the invitations issued by government to
25 attend 16 or 17 meetings, and they also refused to sign the principles
1 offered by the Contact Group in Rambouillet.
2 Q. Professor, yesterday we looked at the Security Council Resolution
3 1199 which referred to the territorial integrity and sovereignty of SFR
5 A. Yes, that's correct, and I read it out yesterday, that portion of
6 the resolution.
7 Q. The principles of the Contact Group, or rather, one of the
8 principles of the Contact Group speaks of that issue as well?
9 A. Yes, one of the ten principles of the Contact Group is precisely
10 that principle.
11 Q. Given that the meeting in Rambouillet was convened on the basis of
12 these ten principles, one of which was the guarantee of the sovereignty
13 and territorial integrity of Serbia, do you have an explanation as to why
14 the representatives of the majority Albanian parties did come to
15 Rambouillet, in view of the fact that they obviously didn't want to accept
16 that particular principle?
17 A. Well, you know, I think that they came to Rambouillet because they
18 could not ignore the invitation extended by the international community,
19 the Contact Group, that's on the one hand. And on the other hand, I think
20 that they came because this agreement that was supposed to be reached in
21 Rambouillet was only going to be a temporary one for self-rule in Kosovo
22 and Metohija. And they were counting on having some manoeuvre space to
23 actually challenge this principle or minimise it by way of including it in
24 the provisional agreement, which would give them time subsequently to
25 establish their long-standing desire; namely, that the citizens of Kosovo
1 and Metohija decide about the fate of Kosovo and Metohija at a referendum.
2 Q. On the basis of the composition of the population in Kosovo and
3 Metohija, if this referendum was to be held only in Kosovo and Metohija,
4 the outcome would have been known in advance?
5 A. Well, yes, naturally. Albanians are an ethnic minority in the
6 Republic of Serbia, but in Kosovo and Metohija, which is a part of the
7 Republic of Serbia, they constitute a numeric majority. And this is what
8 they were counting on whenever they insisted that the fate of Kosovo and
9 Metohija be decided by votes of the people of Kosovo and Metohija, which
10 is how they formulated it. There is no such notion as the people of
11 Kosovo and Metohija. There are Albanians, Egyptians, Turks, Romani,
12 Gorani, and so on, but there is no such thing as an aggregate category
13 known as the peoples of Kosovo.
14 JUDGE BONOMY: Professor, when you were dealing with the
15 non-negotiable principles, you referred to the refusal of the
16 representatives of the main political parties -- or the main Albanian
17 political parties to sign these principles. Was there some formal process
18 through which the representatives of the Government of Serbia signed these
20 THE WITNESS: [Interpretation] Since we did not talk directly to
21 the Albanian delegation, which came there under the name of the Kosovo
22 delegation, and it was a mono-ethnic delegation, comprising only
23 Albanians, nobody else, we were unable to talk to them directly. So we
24 conveyed to them via the mediating group consisting of three members that
25 we would talk to them only if these non-negotiating principles were
1 developed in the agreement. This is why we told the mediating Troika that
2 these ten principles of the Contact Group be signed both by us and the
3 Albanian delegation. Our delegation signed these ten principles and
4 the Albanian delegation refused to do that, to sign them. And I think
5 that in the documents you can find the text based on which you can see
6 that we signed these ten principles, whereas the Albanian delegation did
7 not, or rather, they explicitly refused to sign.
8 JUDGE BONOMY: Do you have documents, Mr. Zecevic, that deal with
10 MR. ZECEVIC: Yes. Your Honour, I was going in a chronological
11 -- we will come to that in a couple of minutes.
12 Q. [Interpretation] Professor, following these principles of the
13 Contact Group, the principles established by the international community,
14 a conference was convened in Rambouillet and our delegation, our
15 government, received an invitation to attend the conference in Rambouillet
16 precisely on the basis of those ten principles, correct?
17 A. Yes, correct. It was the National Assembly that decided that the
18 delegation should take part in the meeting.
19 Q. Would you please open tab 50, 1D443. Professor, would you please
20 interpret and comment this document for us.
21 A. First of all, this document contains the decision of the National
22 Assembly concerning the participation of the delegation of the Republic of
23 Serbia in negotiations on Kosovo and Metohija.
24 Q. And in which parts can we find that?
25 A. In part 6, the last one. It says there that "pursuant to the
1 invitation of the Contact Group to attend negotiations on Kosovo and
2 Metohija on the 6th of February an invitation was sent to Serbia and the
3 National Assembly decided to accept this invitation to attend negotiations
4 because it is the firm orientation of the people and all political parties
5 to try to achieve peace and to defend Kosovo and Metohija in every forum
6 where the issue of Kosovo and Metohija is discussed anywhere in the world.
7 By accepting these negotiations, we are making yet another step to
8 contribute to the resolution of the problems by way of peaceful means.
9 The National Assembly has authorised the government to designate a
10 delegation that would attend the meetings."
11 And in part 5, item 2, the National Assembly of Serbia formulated
12 principles based on which the crisis in Kosovo and Metohija can be
13 resolved successfully and permanently in the interest of everyone. These
14 principles can be found in part 5, item 2. They were some sort of a
15 compulsory terms of reference for the government when it came to
16 appointing members of the delegation for negotiations in Rambouillet. If
17 you have translation into English then I wouldn't go into these particular
18 specific principles, but the key one was the last one which was discussed
19 at length; namely, the principle that states that: "We do not accept the
20 presence of foreign soldiers in our territory on any pretext of
21 implementing the agreement reached."
22 Q. Professor --
23 JUDGE BONOMY: Mr. Zecevic, is this the sort of response to these
24 principles you're talking about, or is there a simple document that says,
25 We accept every one of the non-negotiable principles?
1 MR. ZECEVIC: Yes, there is. There is a document --
2 JUDGE BONOMY: Because these principles are different.
3 MR. ZECEVIC: Yes. These principles are the ones that have been
4 adopted by the National Assembly of Serbia and upon the arrival in the
5 Rambouillet as you will see, our delegation signed the ten principles and
6 we have the document.
7 JUDGE BONOMY: You say ten principles, there's a lot more than ten
8 on the list in number 49. There's ten general elements --
9 MR. ZECEVIC: Ten general elements.
10 JUDGE BONOMY: And then there's at least that number in relation
11 to other matters.
12 MR. ZECEVIC: Your Honour, the general elements were accepted by
13 the -- by the delegation of Serbia, the general elements, ten general
14 elements, as the principles of resolving the Kosovo situation in
16 JUDGE BONOMY: Thank you.
17 MR. ZECEVIC: [Interpretation]
18 Q. Professor, you have read out to us the last principle adopted by
19 the National Assembly, part 5, last item. Can you please explain to us
20 why the National Assembly took such a position, if you know.
21 A. It is quite natural for the National Assembly to take such a
22 position. It is easily to explain. If we do reach an agreement on some
23 issue, then we do not need foreign soldiers to enforce it. That means if
24 the foreign soldiers are there, that means that the agreement is against
25 somebody's will. An agreement reflects the meeting of the wills of the
1 participants to the agreement, and if the parties agree to something then
2 why would they need foreign troops on their territory to enforce,
3 implement, that agreement? That's one thing.
4 The other thing is the principle of territorial integrity and
5 sovereignty is being acknowledged here as one of the principles. And it
6 is incompatible with that principle to have the presence of foreign troops
7 on our territory.
8 Q. Thank you.
9 JUDGE BONOMY: The second point I understand entirely. On your
10 first point, has your experience of events worldwide in the last 15 years
11 altered that opinion?
12 THE WITNESS: [Interpretation] I don't know what particular
13 experience you have in mind, but if the negotiating parties are serious,
14 if they accept what they sign, if they accept it willingly, then why would
15 the foreign troops need to enforce something that the parties had
16 willingly agreed to on their own? Why would the foreign troops need to
17 secure that? Foreign troops can secure an agreement or enforce it if
18 somebody is against it so that they need to use force to ensure the
19 implementation. But in that case, it is no longer an agreement.
20 JUDGE BONOMY: Mr. Zecevic.
21 MR. ZECEVIC: Thank you.
22 Q. Professor, these conclusions reached by the National Assembly are,
23 in fact, the mandate you are actually referring to a framework
24 which -- within which the National Assembly as the highest organ of power
25 gave authority to the delegation to participate in negotiations in
1 Rambouillet, if I understood you correctly?
2 A. Yes, precisely so. The National Assembly decided that Serbia
3 needed to be represented in Rambouillet, and they did not give the
4 delegation a carte blanche to do what they wanted in negotiations; rather,
5 they specified in general terms several principles that the state
6 delegation had to abide by. They could not violate those principles. And
7 those principles had been previously used by the international community
8 in their calls to participate in political dialogue by ways of political
9 means, dialogue, peaceful mechanisms to resolve the crisis rather than an
10 armed conflict. And then another principle was for respect for
11 territorial sovereignty, full equality for all ethnic groups in Kosovo and
12 Metohija without the possibility of anyone out-voting anyone else.
13 In addition to that, the principles called for the application of
14 solutions which were used in our constitution and in all international
15 treaties concerning human rights. They called for autonomy in Kosovo and
16 Metohija at the highest international level but within the framework of
17 Serbia and Federal Republic of Yugoslavia. And then another principle was
18 that they did not accept the presence of foreign troops on the territory
19 of Yugoslavia and they rejected firmly any attempts that would lead to
20 secession of Kosovo and Metohija from Serbia. Except for this last one,
21 all other principles were identical to those used by the international
22 community in their appeals to solve by peaceful means the crisis in Kosovo
23 and Metohija. Except for this last one, they used identical wording for
24 their principles.
25 Q. Thank you, Professor. As we were able to see, these conclusions
1 were such that the National Assembly authorised the government to appoint
2 members of the delegation. Would you please open tab 51, which is P0967.
3 This is the decision published in the Official Gazette on the 5th
4 of February, 1999, on appointment of the delegation to participate in the
5 negotiations in Rambouillet.
6 A. The Official Gazette is the name of the publication.
7 Q. Yes, you're right. And we can see here that you were appointed as
8 head of the delegation, correct, that's in item 1?
9 A. Yes. Implementing the conclusions of the National Assembly that
10 we have just commented upon, the government issued a decision appointing
11 members of the delegation in France. I was appointed head of the
12 delegation, and in addition to the presidents of the delegation, there
13 were also 12 members. I'm now drawing your attention to the fact that it
14 was a multi-national delegation, and that there were representatives of
15 ethnic communities from Kosovo and Metohija representing absolute
16 majority. Out of 13 members of the delegation, only four were Serbs. In
17 addition to that, the delegation also comprised representatives of the
18 federal organs, and those were Mr. Vladan Kutlesic, federal deputy prime
19 minister; and Mr. Sainovic, also deputy federal prime minister.
20 Q. Thank you, Professor.
21 A. So this is a state delegation. This is not just Serbia's
22 delegation. This is a delegation of the Federal Republic of Yugoslavia
23 and the Republic of Serbia.
24 Q. When did you leave for France, the delegation?
25 A. The 5th of February, 1999.
1 Q. Arriving at Rambouillet?
2 A. The next day, the 6th of February, 1999.
3 Q. Were the talks at Rambouillet opened on that day?
4 A. Yes, that evening the ceremonial opening of the talks took place.
5 The talks were opened by the then-president of the French republic,
6 Mr. Chirac and also the co-chairman of the Rambouillet conference Cook and
7 Vedrine, Robin Cook and Vedrine.
8 Q. When did you get the first draft agreement, the first Rambouillet
9 draft agreement?
10 A. We received the first portions the next day upon our arrival at
11 Rambouillet, the next morning, the 7th of February. There were three
12 people involved in this particular round, Hill, Boris Mayorski, and
13 Wolfgang Petritsch, they provided us with a framework agreement which is
14 the first part of the agreement, as well as annex 1 containing a
15 constitution for Kosovo. There was also annex 3 discussing appointments
16 to bodies in Kosovo, and annex 6 which discussed the position of the
17 ombudsman. We received this on the morning of the 7th of February in
18 Rambouillet and this was given to us by the three chief negotiators.
19 Q. Professor, you said yesterday that Kosovo's draft constitution,
20 which you refer to as annex 1 which you received in Rambouillet, is
21 actually one of the versions of a document that you reviewed with Hill and
22 O'Brien back in 1998; is that right?
23 A. Yes. Nobody gave us any explicit instructions in that regard but
24 I was a party to the talks and I recognised it immediately.
25 Constitutional law happens to be something I deal with on a professional
1 basis, so I recognised many of the provisions from the countless plans
2 drafted by Mr. Hill and Mr. O'Brien. I recognised many of those in annex
3 1 entitled a constitution for Kosovo.
4 Q. Professor, can you please go to 53, 1D122. This is your letter
5 dated the 9th of February about these fundamental principles or general
6 elements, if you like, which is something the Trial Chamber asked you
7 questions about a while ago. Can you please explain that.
8 A. As soon as we received these portions of the agreement, our
9 delegation, of course, embarked on seriously studying these portions. We
10 established immediately that some of the principles of the Contact Group
11 were not envisaged in it or not fully envisaged. Some of those principles
12 of the Contact Group that had been defined as non-negotiable, they were a
13 given and they simply had to be implemented. That is why we decided to
14 clarify the previous issue. What about the other party to these
15 negotiations, does the other party accept these principles as
16 non-negotiable at all?
17 First of all, we had to ascertain that; this is the only way the
18 talks could make any sense. If they refused to accept the principles that
19 the international community had decided could not be changed or amended
20 and were not negotiable, then the Rambouillet talks would turn out to be
21 entirely pointless. It was for these same reasons that we asked for both
22 delegations to agree to those principles and sign them so that we might
23 embark on further efforts towards reaching an agreement.
24 Q. This proposal that you made is to be found on page 2 of the
25 document, it says "general elements," it's in English, right?
1 A. Yes, these are the principles established by the Contact Group.
2 There are ten principles in total. They are listed here in the very same
3 order that they were first worded in the original document produced by the
4 Contact Group. To the left you see the Kosovo Albanian delegation, which
5 constituted -- which consisted only of Albanian representatives. To the
6 right you see the delegation of the Government of the Republic of Serbia,
7 which as you see, unlike the previous one, was a multi-ethnic delegation.
8 Q. Could you please go to tab 54, 1D123. This is another letter you
9 wrote on that same day in which I believe you requested a meeting for the
10 basic principles to be signed.
11 A. What this letter reflects with regard to these principles is that
12 we requested a face-to-face meeting with the Albanian delegation with no
13 mediators. We wanted to thrash it out and see whether this delegation
14 accepted these principles to begin with. My letter to the three chief
15 negotiators was a part of these efforts.
16 Q. Did that meeting ever materialise, Professor?
17 A. No, it never did. The three chief negotiators informed us that
18 the Albanians had refused to have that meeting. The entire agreement was
19 envisaged as a series of talks, as a meeting between two delegations.
20 Q. Professor, when you say the entire agreement, do you mean the
22 A. Yes, the Rambouillet talks, the negotiations, were envisaged like
23 that. They're called talks, talks meaning two delegations talking. Not
24 only were there no such talks at the outset but no such talks ever
25 materialised throughout our time there. Both parties talked to the chief
1 negotiators. The parties never actually ended up talking to each other.
2 Q. Professor, given the fact that the Albanian delegation refused to
3 sign the basic principles, which were in actual fact the principles
4 established by the Contact Group, you said a while ago to the honourable
5 Chamber that our own delegation had signed the principles. When was that?
6 A. Our delegation signed all of the principles, and we did that in
7 Rambouillet on the 11th of February, 1999, all ten of the Contact Group
9 Q. Will you please go to tab 55, 1D124. 1D124.
10 [Defence counsel confer]
11 MR. ZECEVIC: Okay.
12 Q. [Interpretation] Professor, the Serbian version of the document
13 that we have before us bears the signatures of each and every member of
14 that delegation. Is that right?
15 A. Yes, that's right.
16 Q. Professor, this is a statement by our delegation accepting the ten
17 principles, based on which the Contact Group had scheduled this meeting,
18 this conference, in Rambouillet. Is my understanding correct, sir?
19 A. Yes. There is one thing that I wish to point out, though. This
20 was all prompted by the co-chairman of the meeting, Mr. Robin Cook, the
21 foreign minister of Great Britain.
22 MR. ZECEVIC: Your Honours, does this clarify your question from
24 JUDGE BONOMY: Yes, thank you.
25 MR. ZECEVIC: Thank you.
1 Q. [Interpretation] Professor, even after this did you still keep
2 requesting meetings with the other party since, as you say, you had
3 arrived there for talks?
4 A. Yes, we persisted. At the various stages of our stay in
5 Rambouillet and then in Paris, I as head of our delegation kept pressing
6 the chief negotiators to organise a meeting between the parties. The
7 chief negotiators, the three chief negotiators would always be there,
8 needless to say, but I wanted a face-to-face meeting between the two
10 Q. Can you please go to tab 56, 1D094, this is your letter dated the
11 12th of February. In the meantime, as we can see from the letter,
12 President Milutinovic had arrived in Rambouillet. Is that right?
13 A. Yes, he had arrived in the meantime, and in this letter I
14 underlined the fact that he, too, is prepared to attend this meeting
15 should all the other parties agree, of course, because formally speaking
16 he was not a member of the delegation although he was the state president.
17 Q. Was President Milutinovic there for the talks in the same capacity
18 that he had previously travelled to Pristina for, to underline the
19 importance attached to Serbia, first and foremost, to these talks. Would
20 you agree with that?
21 A. Yes, that was precisely why he travelled to Rambouillet. This is
22 a constitutional capacity of the president. He represents Serbia and
23 expresses the unity of the state. But he was always earnestly involved in
24 this entire effort in our attempts to talk directly to the delegation of
25 the Kosovar Albanians.
1 Q. Professor, when the delegation of Yugoslavia signed the ten basic
2 principles or general elements established by the Contact Group on the
3 11th of February, you suggested that this move had been prompted by the
4 co-chairman, Robin Cook. Is my understanding correct?
5 A. Yes, but that is reflected in the document itself. It says: "a
6 delegation appointed by the Government of Serbia at the meeting in
7 Rambouillet prompted by the co-chairman, Robin Cook, Foreign Minister of
8 Great Britain, wishes to release the following statement."
9 Q. Professor, while prompting the parties to do this, did the
10 co-chairman specify whether they and the Contact Group still abided by the
11 same principles for these talks in Rambouillet?
12 A. Yes, they themselves had been members of the original Contact
13 Group, and the whole talks in Rambouillet were organised around this. It
14 was only natural for them to share the positions of a body to which they
16 Q. Apart from these documents that you received from the three chief
17 negotiators, from the representatives of the Contact Group, on the 7th of
18 February, annex 1, 3, and 6, I believe --
19 A. Yes, that's right.
20 Q. -- did you ever ask for the other, the remaining annexes to the
21 Rambouillet agreement to be submitted to you?
22 A. We asked to have the agreement in its entirety right away on the
23 afternoon of the 7th of February. As a matter of fact, we had two general
24 types of objections to the parts of the agreement that were an offer. The
25 first set of objections had to do with the general elements of the Contact
1 Group, since we had concluded that those had not been consistently
2 complied with in those parts of the agreement that we received on the
3 morning of the 7th.
4 Secondly, in order for us to assess the wording of the agreement,
5 we first needed to have the agreement in its entirety. To see what the
6 agreement in its entirety was about and how all the various issues in the
7 agreement were dealt with. Only then could we assess the agreement as a
8 whole. I informed the three chief negotiators about this at our meeting,
9 and then there was certain formal letters that we sent to them and which I
10 signed as a head of the delegation. In these letters we requested to have
11 the full text of the agreement so that we may be able to take a standpoint
12 on the agreement as a whole.
13 Q. Can you please go to tab 58, 1D096. Professor, is this one of the
14 letters in which you request to have the full set of documents?
15 A. Yes, that is one of those. It is signed in Rambouillet. I am
16 here as head of the delegation, and I ask the negotiators to provide as
17 soon as possible to the delegation designated by the Government of the
18 Republic of Serbia all relevant documents intended for the Rambouillet
20 Q. The date on this document is the 12th, right?
21 A. Yes. I did this on the 12th of February, but I think this wasn't
22 the only time. There was another time. If you follow the time-line of
23 these documents, I'm sure you'll find the other one that I'm talking about
24 as well.
25 Q. Professor, at the outset the Rambouillet talks were supposed to go
1 on for how long exactly?
2 A. The Contact Group initially had envisaged a week, that means the
3 talks were to be concluded by the 13th of February.
4 Q. But the deadline, the original deadline, was moved, right?
5 A. Yes, it was, but not because either of the parties requested for
6 the deadline to be moved. The reason was, even as late as the 13th of
7 February, all we had were fragments of the agreement, very little of it,
8 in fact, perhaps as much as a third. So the deadline was postponed
9 because of the organisers, and it was moved from the 13th to the 20th of
10 February, 1999, and then again no one else but the organisers themselves
11 were to blame for another extension until the 23rd of February, 1999.
12 Even as late as that we had not yet received the full text of the
13 agreement, but rather just fragments by the 20th of February.
14 Q. When you say that on the 13th of February, 1999, you had but a
15 third of the agreement in your hands and still had no idea what the
16 agreement in its entirety would amount to, even what the draft agreement
17 would be, did you have any ideas at all?
18 A. No, we had no idea about the substance, we had no idea about the
19 general framework of what the agreement would comprise. We had the part
20 of the agreement that concerned the ombudsman, but we didn't have the
21 essential parts of the agreement. Even as late as the 13th of February,
22 we still didn't have the essential parts -- oh, right, I do consider the
23 constitution to be an essential part, but these were not the make-or-break
24 points of the talks and we simply didn't have those in our hands. I was
25 head of the delegation and I never actually held the text of the agreement
1 in my hands.
2 Q. Professor, when did you eventually receive the remaining
4 A. The parts of the agreement that I mentioned we received on the
5 morning of the 7th of February, and then on the 13th of February, we
6 received annex 4, entitled: "Economic Issues." According to what the
7 Contact Group had first envisaged, the talks were to be ending on that
8 day, and that was when we received annex 4. Later on, on the 15th, since
9 the conference had been extended, on the 15th we received annex 4(A)
10 entitled "Humanitarian Issues, Reconstruction, and Development."
11 JUDGE CHOWHAN: Well, I'm sorry, I would intervene with
13 Now, Professor, learned Professor, please tell me besides these
14 very formal invitations and meetings, were you also meeting informally
15 over meals or dinners or something which opportunity would have
16 provided -- which would have been an opportunity for at least meeting the
17 other side informally and like they say, track two in diplomacy and so on
18 to understand each other and to get to know of things? Or were you just
19 being led by shepherds, who were the negotiators getting you together,
20 getting you apart? What was really happening?
21 THE WITNESS: [Interpretation] We were led about shepherds, that's
22 precisely how it was, but we did not act like a flock. We were quite
23 aware what certain things meant. The two delegations were even physically
24 separated. Our accommodations were on two separate floors of the castle
25 at Rambouillet. We even dined, had lunch and dinner, in different dining
1 rooms. Only a chance meeting in the hallway was possible, and even then
2 they were unpleasant situations where, for example, I knew some
3 colleagues, such as Professor Fehmi Agani, who was a university professor,
4 and he would turn his head the other way. He felt uncomfortable, too, and
5 he did that in order to avoid any possible conversation between us. I
6 personally did not have any contact with any members of the Albanian
7 delegation, even though I knew some of them from before. And we used to
8 have, prior to that, a normal, professional communication.
9 JUDGE CHOWHAN: Thank you.
10 MR. ZECEVIC:
11 Q. [Interpretation] Professor tab 60, 1D589.
12 MR. ZECEVIC: If we could have it on e-court.
13 Q. [Interpretation] This is your letter to the negotiators dated the
14 16th of February, 1999.
15 A. I believe this letter to be exceptionally important for the course
16 and nature of talks in Rambouillet. General public is not aware of the
17 facts contained in this letter. When we received annex 4(A) on the 15th
18 of February, I as head of the negotiation put an explicit question to the
19 negotiating Troika whether the text of the entire agreement had been
20 provided, had we finally received the entire agreement, because we had
21 arrived on the 6th of February, and it was the 15th when I posed this
22 question. The chief negotiators told me explicitly that that was the
23 agreement in its entirety. So I referred to the answer I received from
24 them in paragraph 1 of this letter.
25 I say there: "Since you informed us at the meeting yesterday that
1 we had finally received all annexes adopted by the Contact Group,
2 including annex 4(A), we are now in a position to submit to you, in line
3 with our concept, the single text of the agreement on self-governance in
4 Kosovo and Metohija with our comments and positions."
5 So based on this letter, one can see that on the previous day the
6 negotiating Troika had told us that we had the entire agreement in our
7 hands. And based on that, we gave them back our comments, our views
8 concerning the integral agreement, including all the annexes. That was
9 the substance of this four-paragraph letter.
10 Q. So, Professor, if I understood you well, since the three chief
11 negotiators, Mr. Mayorski, Petritsch, and Hill, submitted to you parts of
12 the agreement and told you that that was the entire agreement, the
13 delegation led by you prepared its own proposals and incorporated them
14 into the text, correct?
15 JUDGE BONOMY: Don't answer that, please.
16 Mr. Zecevic, that is simply a repetition of exactly what the
17 Professor has already told us.
18 MR. ZECEVIC: Okay, Your Honour.
19 JUDGE BONOMY: We need to move on.
20 MR. ZECEVIC: [Interpretation]
21 Q. Professor, do you remember draft conclusions of the Contact Group
22 on the 20th of February, 1999?
23 A. Yes, I do.
24 Q. Would you please look at tab 62, 1D674. Did this mean, these
25 conclusions, that the deadline was extended by three days, as you
1 mentioned earlier?
2 A. Yes. These conclusions extended the deadline for concluding the
3 talks for the second time. It was extended this time by three days. The
4 Contact Group said that the conference had to conclude by 1500 hours on
5 the 23rd of February. Even when Contact Group issued these conclusions,
6 we still did not have the entire Rambouillet agreement in our hands, more
7 than half of it was missing, more than half of the text of the agreement
8 was still missing. And one can see that in the numbers of annexes, number
9 2 was missing, number 5, and number 7.
10 MR. ZECEVIC: Please bear with me.
11 [Defence counsel confer]
12 MR. ZECEVIC: [Interpretation]
13 Q. Professor, tell me, please, do you remember what happened on the
14 22nd of February in Rambouillet, so the day before?
15 A. On the 22nd of February -- are you referring to the letter which I
16 sent out? I'm not sure what you are aiming at.
17 Q. Were there any attempts on the 22nd of February to give you some
18 other documents?
19 A. Oh, yes. You know what? There was quite a lot going on in one
20 single day. So when you asked me: Do you remember what happened on such
21 and such day, I'm not sure what you have in mind because a lot of things
22 happened on one single day as a rule. On the 22nd of February at 1900
23 hours, the negotiating troika brought to us precisely the missing annexes,
24 annex 2, 5, 7, and 8. But annex 8 was an artificial product made out of
25 the framework agreement in such a way that one particular article was set
1 aside as a separate annex, and it was on changes to the agreement. And
2 this was the greatest concession made to the Albanian delegation in order
3 to have them sign the agreement.
4 As head of the delegation, upon consulting the entire delegation,
5 I refused to accept from the negotiating troika these annexes making a
6 reference to their publicly-made statements that on the 15th of February
7 we had the entire agreement in our hands. As it turned out, on the 22nd
8 of February, at 1900 hours, we had by that time had only less than half of
9 the agreement in our hands. And then the remaining part, the greater
10 part, was given to us on the eve of the deadline for concluding the
11 conference because we were told that it had to conclude by 1500 hours on
12 the 23rd of February. We received at 1900 hours on the 22nd of February
13 more than half of the agreement, the remaining part.
14 Q. Professor, was that the only reason why you did not wish to accept
15 these documents?
16 A. That was the main reason why we did not want to receive that.
17 Naturally, we didn't know anything about the content of what they were
18 offering because we didn't accept it, we refused to accept it, because the
19 negotiators had gone back on their own word.
20 Q. Professor, this is tab 63, document 1D97, dated the 22nd of
21 February. In the text of the letter, you say that these documents were
22 not accepted by Contact Group. Would you please explain that.
23 A. Yes, that was the second reason why we did not accept the parts of
24 the agreement that were offered to us, and we learned of its existence
25 from one of the negotiators, Mr. Boris Mayorski. These particular
1 annexes, 2, 5, and 7 were not adopted by the Contact Group at all, unlike
2 the previous annexes.
3 Q. Please go ahead, Professor. I apologise for interrupting you.
4 A. Should I repeat?
5 Q. No, just continue.
6 A. So annexes 2, 5, and 7 were not adopted at all by the Contact
7 Group. Annexes 2 and 7 were not even put on the agenda of the Contact
8 Group. As for annex 5, it was discussed, but it's -- they did not decide
9 on its adoption, and that was the second reason why we refused to accept
10 annexes 2, 5, and 7. We formulated our objection in such terms that we
11 said that those annexes were not only not adopted by the Contact Group but
12 were not even put on its agenda. And the Contact Group was the organiser
13 of the entire conference, that it was the Contact Group that formulated
14 the agreement which was later submitted to negotiating sides for review.
15 Q. Professor, how did you know that this document was not discussed
16 by the Contact Group, that these documents were not discussed by the
17 Contact Group?
18 A. Mr. Boris Mayorski stated so to us. He was one of the chief
19 negotiators. And in the final text of the agreement that was submitted to
20 us on the following day, he put next to his signature that he was signing
21 on behalf of the negotiating troika, but he was signing to everything
22 except for annexes 2 and 7. As for annex 5, he said that it was debated
23 by the Contact Group but not adopted. He said that it was not put to the
24 vote, its adoption, and he said that in the presence of other two
1 Q. And that was on the 22nd of February?
2 A. Yes, on the 22nd. On the 23rd of February, he put that in writing
3 in the accompanying letter accompanying the integral text of the
4 Rambouillet agreement. That was the integral text that we received on the
5 last day at 9.00 in the morning. And as the Contact Group had decided,
6 the conference was supposed to conclude at 1500 hours on that day.
7 Q. Professor, please turn to tab 65, 1D98. You see -- you see page
8 1, the date is 23rd of February, 9.30 a.m., is that the document that you
9 referred to?
10 A. Yes, precisely so. You can even see that I was wrong about the
11 time. I said 9.00 and the document says 9.30.
12 Q. And as I can see from the last line of this document, you were
13 given a deadline by which you were to respond.
14 A. We were given a deadline, a total of three and a half hours to
15 provide our response. We were told to provide our response by 1.00 p.m.,
16 so they gave us three and a half hours to respond to more than half of the
17 text, of the Rambouillet agreement, which we had seen at that point for
18 the first time. What one can see here is the signature of Mr. Boris
19 Mayorski, and then there is the added bit in handwriting, chapters 2 and
21 Q. What was your understanding of paragraph 1 of the letter that you
22 received, together with the comment underneath Boris Mayorski's signature?
23 Paragraph 1 suggests that the documents were being presented to the
24 delegations on behalf of the Contact Group or in the name of the Contact
25 Group. What was your reading of the document, sir?
1 A. Well, the only way I could possibly have interpreted the document
2 was that the name of the Contact Group was being misused. Something was
3 being done in the name of the Contact Group that wasn't consistent with
4 the nature of the Contact Group, specifically annex -- chapters 2 and 7,
5 and yet the negotiators were suggesting that these were being submitted to
6 us in the name of the Contact Group.
7 JUDGE BONOMY: We can read this for ourselves and see exactly what
8 happened. Mr. Mayorski expressed his reservations, but he still signed
9 the document before sending it.
10 THE WITNESS: [Interpretation] Yes, he did sign it, but he did not
11 sign chapters 2 and 7. And what we were told was all or nothing, the
12 entire agreement but not parts of the agreement in isolation. There were
13 parts that we would have agreed to, having amended them, especially the
14 political portion. But what we were told was we cannot have parts of the
15 document signed. We can either sign it and agree to it as a whole or not
16 at all. Therefore, this is my interpretation of the signature in my
17 capacity as a professional legal expert.
18 JUDGE BONOMY: This is a good example of a useless answer and a
19 useful answer. Your first answer to the question that Mr. Zecevic posed,
20 which was a very sensible question, was simply to tell us the way you
21 thought in which negotiations had been conducted. But much more important
22 is the second answer you've given, which is about the pressure being put
23 on you, which I anticipate is what Mr. Zecevic actually wanted to hear.
24 So please try, Professor, to supplement the easily readable material in
25 the answers that you give so we have the benefit of your personal insight
1 into what happened. Thank you.
2 Mr. Zecevic.
3 MR. ZECEVIC: [Interpretation]
4 Q. Professor, on the 22nd of February, Mr. Mayorski told you that the
5 three documents, annexes 2, 5, and 7, had not been debated or agreed upon
6 by the Contact Group. Did you ask him, or perhaps he just explained to
7 you of his own accord, what exactly the three annexes were about that they
8 were about to submit to you on the 22nd?
9 A. We did not ask for an explanation from Mr. Mayorski nor did he
10 provide one of his own accord. He just told us about the status of those
12 JUDGE BONOMY: Who was it that said it was all or nothing?
13 MR. ZECEVIC: [Interpretation]
14 Q. Thank you, Professor.
15 THE WITNESS: [Interpretation] I think as we go through these
16 documents you will realise that later on in Paris this was exactly what
17 was communicated.
18 JUDGE BONOMY: Can you answer --
19 THE WITNESS: [Interpretation] -- The agreement --
20 JUDGE BONOMY: Can you answer my question. You told us with three
21 and a half hours to go you were told it was all or nothing. Who was it
22 that told you that?
23 THE WITNESS: [Interpretation] Both Mr. Petritsch and Mr. Hill said
24 this quite explicitly, and this was confirmed on several occasions, later
25 on in Paris, that the agreement could not be signed in part.
1 JUDGE BONOMY: And on the 23rd of February, was that said by them
2 in the presence of Mr. Mayorski?
3 THE WITNESS: [Interpretation] Yes, that was the position of the
4 negotiating troika from the very beginning. This is what we were told the
5 moment we arrived in Rambouillet.
6 JUDGE BONOMY: And what -- when this -- well, I don't understand
7 that answer. I'm asking you about what was said on the 23rd of February.
8 Were you told then by -- well, sorry. Who were you told by on that
9 occasion that it was all or nothing?
10 THE WITNESS: [Interpretation] All or nothing, Mr. Petritsch and
11 Mr. Hill were saying that all the time, and I believe that to have been
12 the position shared by the Contact Group as well.
13 JUDGE BONOMY: Right. So it wasn't something peculiar to the 23rd
14 of February, this assertion that it was all or nothing? This was a
15 principle start to finish.
16 THE WITNESS: [Interpretation] Yes, right from the very outset.
17 JUDGE BONOMY: That puts a different gloss on it, you see,
18 Mr. Zecevic, when we get the full position. Anyway, please carry on.
19 MR. ZECEVIC: [Interpretation]
20 Q. Professor, on the 23rd of February at 9.30 a.m., you received
21 annexes 2, 5, and 7. If you compare these to the documents already in
22 your possession at that point in time, which you received on the 7th,
23 13th, and 15th, can you tell us what it was exactly that you received at
24 9.30 that morning, how much of it there was in view of the fact that the
25 time you were given to respond was three and a half hours.
1 A. You have here the full text of the Rambouillet agreement. If you
2 just skim through it, if you look at what its size is, you can easily tell
3 that it was more than a half of the full text. It appears that the text
4 runs into 81 pages. If you add to that the pages contained in annexes 2,
5 5, and 7 and what that would amount to is more than the first part.
6 Q. All right. So you had three and a half hours to go through that
7 and to state your position?
8 A. Yes, that's right.
9 Q. Professor, at the end of the Rambouillet conference on the 21st of
10 February, you dispatched several letters, right?
11 A. Yes. On the 23rd of February.
12 Q. Can you please go to tab 66, 1D582. Can you comment, please.
13 Does this not suggest that after all you saw Rambouillet as a meaningful,
14 positive effort, or am I simply wrong?
15 A. It is true that Rambouillet was tantamount to some progress,
16 progress towards some sort of a political solution. This is, above all, a
17 reference to annex 1 and annex 3, possibly even annex 6, although the
18 position of the ombudsman is politically neutral. Some progress had
19 definitely been made. On the 20th of February, between the 19th and the
20 20th - and we had begun on the 19th - our talks with the negotiating team
21 and their experts at about 1900 hours, and we remained in the room until
22 5.00 a.m. on the 20th working on the political aspect. This was the way
23 forward. The only way was to work intensively and try to reach an
24 agreement on the wording itself. But this is how long the single annex
25 took, so that's something for you to bear in mind.
1 And then on top of this the delegation of the Kosovar Albanians
2 had to agree. Negotiators would have to go to them with the text, and
3 then they were to provide their approval. Yes, progress was made,
4 especially in the political sense regarding the autonomy of Kosovo and
5 Metohija. But we said what we had been saying all along. The only
6 solution was in the possibility of a political dialogue.
7 We agreed to continue the talks, but by doing something like this,
8 by using this method, not trying to foist solutions on people, not trying
9 to impose anything on other people, but rather by negotiating and by
10 getting all the parties to voluntarily agree to certain solutions and
11 getting both parties involved in direct negotiations if possible. We
12 agreed to have the talks continue. We even granted our approval for
13 Yugoslavia to review the possibility of an international presence in
14 Kosovo and Metohija for the implementation of the agreement that was to be
15 signed in Rambouillet.
16 We did say that we did not want international soldiers to be
17 there, but that did not rule out the possibility of having a presence of
18 international civilian staff. And this thing was something that we were
19 not able to negotiate because we had been told not to. We had been told
20 that the presence of foreign international soldiers was out of the
21 question for the agreement.
22 MR. ZECEVIC: I see the time, Your Honour, it's appropriate now
23 to ...
24 JUDGE BONOMY: Thank you.
25 Time again for a break, Professor. Please leave with the usher,
1 as usual. We shall resume at 11.15.
2 [The witness stands down]
3 --- Recess taken at 10.44 a.m.
4 --- On resuming at 11.16 a.m.
5 MR. ZECEVIC: Your Honour, there was one issue concerning tab 42,
6 1D91, if I may address it while the witness is preparing to --
7 [The witness takes the stand]
8 JUDGE BONOMY: That's a question of the original document?
9 MR. ZECEVIC: That's right, Your Honour. Well, Your Honour, the
10 original document we don't have, the signed agreement we don't have;
11 however, the declaration in support which refers to the document has
12 already been admitted as 1D18, page 372, it's Professor Weller's book. So
13 it has already been admitted on the 1st of March this year as an evidence.
14 The declaration -- the declaration in support of the joint agreement.
15 JUDGE BONOMY: And how does that resolve the matter of signature?
16 MR. ZECEVIC: Well, the declaration in support is signed and it
17 has been admitted. And what our learned friend from the Office of the
18 Prosecutor has actually seen is the page of Politika which we don't want
19 to tender, which is, Your Honour, 47, 1D671, and you have it in your
20 binder. That is probably the reason why Mr. Hannis saw -- he saw the
21 signatures on the document.
22 JUDGE BONOMY: Thank you for clarifying that.
23 MR. ZECEVIC: Thank you very much.
24 JUDGE BONOMY: Please proceed -- oh, sorry, Mr. Hannis.
25 MR. HANNIS: Your Honour, is 671 in already then?
1 MR. ZECEVIC: No, no, we are not tendering --
2 MR. HANNIS: Because that reflects the signatures, Your Honour, I
3 don't have an objection then to that Politika coming in to reflect that
4 because the witness has testified about that.
5 MR. ZECEVIC: Well, in that case we will move --
6 JUDGE BONOMY: Very well. We will admit 1D671.
7 MR. ZECEVIC: Yes.
8 JUDGE BONOMY: To assist the interpretation of tab 42, so now you
9 can continue.
10 MR. ZECEVIC: Thank you very much.
11 Q. [Interpretation] Professor --
12 MR. ZECEVIC: Your Honour, I think just for the purposes of the
13 record, tab 42 is 1D71 -- 1D91, I'm sorry, 1D91. Thank you, Your Honour.
14 Q. [Interpretation] Professor, are you aware of the declaration, or
15 rather, statement of the Albanian delegation dated the 23rd of February,
16 1999, in Rambouillet?
17 A. Yes, I'm aware of that.
18 Q. Can you tell us something about this statement. It is 1D, or
19 rather, tab -- it is tab 70, 1D018, 467 in your binder. That is point 34.
20 A. Well, the delegation of the Kosmet Albanians considered as the
21 focal point in the agreement, the last chapters -- rather, chapter 8 which
22 came into being subsequently. Because this part on changing the agreement
23 was taken out of the first framework agreement and turned into a separate
24 text, and it says there that after a transition period expires of three
25 years in Kosovo there would be a referendum by the people of Kosovo to
1 decide on the fate of Kosovo. That is to say, that the Albanian
2 delegation sees that part in the agreement as the most important one for
3 them. That is to say, that out of the entire agreement which contains a
4 provisional solution they see as the greatest value this possibility of
5 after the expiry of the transition period the people of Kosovo will decide
6 on the fate of Kosovo and Metohija.
7 Q. Which indicates, I assume, what the objective of the Albanian
8 delegation was at the talks in Rambouillet?
9 A. Well, we were aware of that objective even as far as back as when
10 we went to Pristina, and the proof that this is their objective is the
11 fact that they never responded to the invitations of our delegation.
12 Because it is not natural to talk to a state delegation about constituting
13 another state in the territory of that same state.
14 Q. Professor, tell me, when did you find out about the existence of
15 some bilateral letters and messages between the United States of America
16 and the delegation of the Kosmet Albanians in Rambouillet?
17 A. I found out about that only after I returned to Belgrade, and
18 after having read numerous books written by many authors about the
19 negotiations in Rambouillet and Paris. That is when I saw many things
20 which I as a participant in these negotiations had not known about. Inter
21 alia, about those negotiations between the Kosmet Albanian delegation and
22 Mrs. Albright.
23 Q. Thank you, Professor. Tell me, Professor, do you think that in
24 relation to the scope of the mandate that the delegation had on the basis
25 of the conclusions made by the highest authorities of Serbia, that is to
1 say the National Assembly, dated the 4th of February, do you think that in
2 relation to these conclusions your mandate, or rather, did you, the
3 delegation, act fully in accordance with those provisions?
4 A. I think the answer is yes. And when we returned to Belgrade, we
5 were not criticised at all for our positions or our conduct during the
6 negotiations in Rambouillet, on the contrary. The work of the delegation
7 was approved, and later the National Assembly adopted conclusions along
8 the same lines; namely, that they expressed their satisfaction over the
9 work of the delegation and expressed a high appreciation for the work of
10 the delegation.
11 Q. Professor, tell me, was the delegation prepared to accept the
12 political agreement from Rambouillet or part of the political agreement
13 from Rambouillet?
14 A. The delegation was prepared, provided that some corrections were
15 made in the offered text, and in the presence of Ambassador Petritsch, we
16 incorporated these changes in the night between the 19th and the
17 15th -- the 19th and the 20th of February, 1999, in Rambouillet. That is
18 to say that only Mr. Petritsch was present out of all the negotiators, and
19 the expert team on our side consisted of Mr. Kutlesic and myself and two
20 experts who were on our delegation, experts in international law, that is.
21 And on the other side there was Mr. O'Brien and Mr. Etinski an associate
22 of his.
23 Q. When you say "O'Brien," do you mean Mr. Jim O'Brien?
24 A. Yes. Jim O'Brien.
25 Q. It is the same gentleman who during the course of 1998 came with
1 Mr. Hill and talked to you in Belgrade and brought in different offers by
2 way of an agreement on autonomy and self-government in Kosovo?
3 A. Yes.
4 Q. Tell me, Professor, did they believe at that time that your
5 proposals were acceptable or did they give any comment whatsoever?
6 A. We had achieved a high degree of agreement, I must say, with the
7 representatives of Mr. Hill. I assume that Mr. O'Brien and Mr. Etinski
8 were the representatives of Mr. Hill or I don't know, I don't know their
9 status. Maybe they were experts of the negotiating troika. A high degree
10 of agreement, yes, but all of that was supposed to be approved by the
11 Albanian delegation, too, they had to agree on it as well. As for this
12 delegation, we had practically brought the text of the constitution to an
13 end as was the political parts of the agreement. However, none of this
14 was final. The Albanians had to agree to it as well.
15 JUDGE BONOMY: What do you mean exactly by the political part of
16 the agreement?
17 THE WITNESS: [Interpretation] The political part of the agreement
18 is a colloquial reference that was usually made in Rambouillet, although
19 this was not stated officially anywhere that that was a particular part of
20 the agreement. That was the framework agreement. Then -- that's the
21 constitution, then it's the part concerning elections, that is to say
22 annex 3, and the part about the ombudsman. 4 and 4(A), annexes 4 and 4(A)
23 are the economic part and part 2 has to do with the police, annex 2 is
24 police and 5 and 7 are implementation. So, colloquially the jargon
25 implied that the framework agreement was the political part as well as
1 chapters 1, 3, and 6.
2 JUDGE BONOMY: Thank you.
3 Mr. Zecevic.
4 MR. ZECEVIC: Thank you, Your Honour.
5 MR. ZECEVIC: [Interpretation]
6 Q. Professor, after the conference in Rambouillet was over, you, the
7 delegation, returned to Belgrade. Isn't that right?
8 A. Yes, the same day, during the night, after the press conference
9 that was held at the Yugoslav embassy in Paris. It was held by the
10 President of the Republic of Serbia, Mr. Milutinovic. We returned during
11 the night in Belgrade on the 23rd of February, the night between the 23rd
12 and the 24th of February.
13 Q. Professor, during that press conference, that is 71, 1D586 in our
14 documents here, so tab 71, 1D586, that's the document I'm referring to.
15 During this conference, was the position you told us about just now
16 repeated; namely, that the Yugoslav delegation was prepared to accept the
17 political agreement from Rambouillet?
18 A. Yes, yes, it was repeated. And it was repeated in my letter as
19 well, the one that I signed as the head of the delegation when the
20 conference in Rambouillet was over on the 23rd of February.
21 Q. Since this press conference was held by President Milutinovic, I
22 assume that since he presented that position, since he uttered those
23 words, he supported them, right?
24 A. Well, that is obvious, isn't it? I take into account what the
25 honourable Presiding Judge said and I don't want to recount everything
1 that is stated here, but you can see this in paragraph 4 of the transcript
2 of the press conference.
3 Q. Thank you. Professor, upon returning to Belgrade --
4 JUDGE BONOMY: I'm -- bearing in mind what the Professor has just
5 said, I'm trying to come to terms with the documents I have here under 71.
6 There are --
7 MR. ZECEVIC: Your Honour --
8 JUDGE BONOMY: -- there are questions as well -- there's the
9 statement itself, the press statement, and then do we have questions?
10 Because I've -- we don't seem to normally have the Serb versions of these
11 documents, but I've got a Serb version and almost at the bottom of the
12 page number 5 it changes into English.
13 MR. ZECEVIC: Yes, Your Honour, that is why the CLSS didn't want
14 to translate that because Mr. Milutinovic was actually responding in
16 JUDGE BONOMY: Ah, I see, I see. So the whole of this --
17 MR. ZECEVIC: Yes.
18 JUDGE BONOMY: All right.
19 MR. ZECEVIC: And the relevant portion to which Professor was
20 referring is the first -- this is the last paragraph on page 1 of the
21 translation, continuing to page 2, and that's --
22 JUDGE BONOMY: Yeah.
23 MR. ZECEVIC: -- translation has in -- in the upper -- upper part,
24 it's bolded: "Press conference by Milan Milutinovic."
25 JUDGE BONOMY: I have it now, thank you.
1 MR. ZECEVIC: Thank you.
2 Q. [Interpretation] Professor, upon your return from Rambouillet on
3 the 23rd, if I understood you correctly, in the evening hours until the
4 5th of March, could you tell us what it was that was happening and what
5 kind of information you had about the results as seen by the international
6 community, the results of the talks in Rambouillet.
7 A. Sir, I did not quite understand what it is that you are asking me.
8 Q. Upon your return to Belgrade on the 23rd of February, in the
9 period of the seven days after that, there were lots of comments made by
10 the international community, foreign media, local media, about the results
11 of Rambouillet. Can you tell us something about that?
12 A. Well, there were comments. I don't know if this is what you had
13 in mind, but it was mostly said that the demands were too great. In the
14 press, including the foreign press, one could hear such statements, even
15 by Mr. Kissinger who said that there is no government in the world who
16 could have accepted what was offered in Rambouillet. Even one of the
17 officials of the US state department said that the bar was raised too high
18 on purpose so that they couldn't jump over it. And --
19 JUDGE BONOMY: I think -- just hold on a second. I take it there
20 is a particular purpose behind that question because all of this for its
21 content is inadmissible.
22 MR. ZECEVIC: I know, Your Honour, I was laying down the
23 foundation for the --
24 JUDGE BONOMY: Favourable press comment would appear to be the
25 foundation, so where do you go from there?
1 MR. ZECEVIC: Thank you, Your Honour.
2 Q. [Interpretation] Professor Markovic, please look at tab 74, 1D099,
3 which is a joint letter from you and Mr. Milutinovic to
4 Madam Madeleine Albright on the 5th of March, 1999?
5 A. Well, that's right, just put a specific question to me. So this
6 is the letter that President Milutinovic and I sent to Mrs. Albright. I
7 don't want to go into the content of the letter so as not to expose myself
8 to criticism.
9 Q. Professor, the letter is self-explanatory. I think that you sent
10 letters with the identical content to all members of the Contact Group and
11 all core -- all co-chairs?
12 A. Yes.
13 Q. A letter to Mr. Igor Ivanov? Just yes or no, please.
14 A. Yes.
15 Q. Same date?
16 A. Yes.
17 Q. Robin Cook?
18 A. Yes.
19 Q. Hubert Vedrine?
20 A. Yes.
21 Q. Mr. Joschka Fischer?
22 A. Yes.
23 JUDGE BONOMY: Mr. Markovic, during the period between the two
24 episodes of talks, was there any shuttle diplomacy being conducted by the
25 negotiators or anyone else or were both sides simply left to sit and
1 contemplate the position?
2 THE WITNESS: [Interpretation] If you're asking me about my
3 personal experience, I had no participation in any such thing. As to
4 whether that happened or not, I don't know.
5 JUDGE BONOMY: Thank you.
6 Mr. Zecevic.
7 MR. ZECEVIC: [Interpretation]
8 Q. In the letters that we just enumerated, you mostly presented your
9 views and your position concerning the outcome of the talks in Rambouillet
10 as well as the future talks which were supposed to be held in Paris,
12 A. Yes.
13 Q. Professor, you held the meeting with the delegation of the
14 Government of the Republic of Serbia on the 5th of March?
15 A. Yes.
16 Q. The delegation that went to Rambouillet?
17 A. Yes, with the president of the Republic, Mr. Milutinovic.
18 Q. Now, will you please turn to tab 80, 1D748. Since we do not have
19 the translation of this document, Professor, I will ask you to read out
20 the relevant portions, which is on page 5, paragraph 2, the sentence
21 commencing with the words: "We are prepared ..." Can you find that?
22 A. Yes.
23 Q. So this is a public announcement, page 5, paragraph 2, the
24 sentence beginning with the words: "We are ready, we are prepared ..."
25 A. Shall I read it out?
1 Q. Yes, please do.
2 A. "We are prepared to commence negotiations in Paris and Belgrade
3 and Pristina, anywhere where a political solution can be found. We
4 ascribe absolute priority to that. In any place and around any table and
5 in every meeting, we are committed for a peaceful -- to a peaceful
6 solution for a broad autonomy within Serbia and Yugoslavia to equality of
7 all ethnic communities."
8 Q. Thank you. So this was the public announcement following the
9 meeting of the delegation attended by Mr. Milutinovic. Was this your
10 joint announcement and your joint position, including President
12 A. Yes, the position of all of us attending the meeting.
13 Q. Thank you, Professor. Professor, please give us your personal
14 opinion. In your view, Professor, did Serbia want a political solution
15 for the situation in Kosovo in 1998 and 1999 since you were a direct
16 participant in the talks and in all of the attempts to meet with the
17 Albanians and you also know all the steps that were taken. Can you tell
18 us this, please?
19 MR. HANNIS: Your Honour, I object to his personal opinion. He's
20 not testified as an expert about this and his personal opinion is no
21 better than yours or mine.
22 JUDGE BONOMY: I -- the only difficulty I see with that question
23 is the reference to Serbia wanting a political situation. If that was the
24 Government of Serbia, then I couldn't see anything wrong with it because
25 what we have here is a man heading the delegation appointed to do the will
1 expressed by the Assembly. So on the understanding you're asking about
2 the position of -- is it the government and Federal Assembly.
3 MR. ZECEVIC: Government.
4 JUDGE BONOMY: Sorry, the Serbian Assembly but the government --
5 MR. ZECEVIC: The government.
6 JUDGE BONOMY: Okay. Thank you.
7 THE WITNESS: [Interpretation] May I?
8 MR. ZECEVIC: [Interpretation]
9 Q. Yes.
10 A. Thank you. Well, I think - and it's not that I think, I'm
11 convinced - that the Government of the Republic of Serbia sincerely wanted
12 for the situation in Kosovo and Metohija to be resolved, because the
13 entire political life had been paralyzed, was burdened by the situation in
14 Kosovo and Metohija. All those trips to Pristina support this. There
15 were all those possibilities offered by the Government of the Republic of
16 Serbia to hold talks. This is another confirmation of the position of
18 Furthermore, the efforts of the delegation in Rambouillet and the
19 delegation appointed by the Government of Serbia following the decision
20 taken by the National Assembly to send its delegation to Rambouillet are
21 also a testimony of this. The delegation was prepared to even continue
22 participating in the continuation of talks in Rambouillet. So all of
23 those meetings that were scheduled and the participation in the
24 international conference acceptance of the general elements offered by the
25 Contact Group and signatures underneath those elements are all a testimony
1 of the fact that all that was needed for an agreement to be reached was
2 the consent of the other side.
3 Q. Thank you, Professor. Professor, when did the delegation go to
4 Paris again for continuation of the talks, do you remember that date?
5 A. I think it was on the 14th of March, 1999.
6 Q. Professor, President Milutinovic also travelled to Paris, correct?
7 A. On this occasion, President Milutinovic was present in Paris
8 throughout the entire time, unlike in Rambouillet where he attended only
9 the second portion of the talks starting on the 10th, the greater part of
10 the talks.
11 Q. Professor, please look at tab 82, 1D587.
12 A. Did you say 82?
13 Q. Yes, 82, 1D587. This is the statement by President Milutinovic on
14 the 16th of March in Paris. Professor, do you remember that Milan
15 Milutinovic said: "I emphasise that we are ready to accept the political
16 portion of the agreement"?
17 A. Yes, and that is in compliance with his initial statement given in
18 Rambouillet back on the 23rd of February.
19 Q. Thank you, Professor. On the 17th of March, you wrote a letter to
20 the negotiating troika. This is tab 84, 1D110, dated the 17th of March,
21 1999. Have you found that?
22 A. Yes.
23 Q. Please explain to us, what did you seek by way of this letter?
24 A. Just like in Rambouillet, this letter represented an appeal to the
25 negotiators to organise a joint meeting of the two delegations, and we
1 explained the reasons for that; namely, so that in a direct dialogue one
2 could hear the comments and opinion of the other side about our proposals,
3 rather than hearing from negotiators what they had to say about the
4 opinion of the other side, rather than having them convey to us the
5 opinion of the other side, no. We wanted to hear straight from the other
6 side what they thought of our proposals.
7 Q. Professor, Ambassador Nikola Cicanovic was a member of the
8 delegation or not?
9 A. No, he was the secretary of the delegation.
10 Q. Please look at tab 85, 1D111, you can see his letter there to the
11 co-chairs dated the 17th of March, 1999. Do you remember this?
12 A. Yes, I do, very well. This is our request that we put forward in
13 Paris; namely, we wanted some sort of a rule to be established that would
14 regulate the work of the conference, rules of procedure, because the
15 conference in Rambouillet unfolded in a random way without any sort of a
16 plan. One didn't know what was happening when, nor was the form of
17 anything established. So we wanted some sort of rules of procedure to be
18 specified as to how the conference would unfold, how an agenda would be
19 formulated, how to submit written proposals, and so on. Everything that
20 generally needs to be done in a conference.
21 JUDGE BONOMY: When Mr. Cicanovic refers in that letter to
22 experts, is he referring to civil -- is he referring to state officials
23 who were there to deal with particular issues on behalf of the delegation?
24 THE WITNESS: [Interpretation] No. Our delegation in Paris did not
25 have experts. We only had them in Rambouillet. Most likely, he had in
1 mind Mr. Kutlesic and myself because we were quite involved in the expert
2 portion of the work. That's what we were mostly involved in finding
3 proper wording. That's what Mr. Cicanovic was referring to because there
4 was no other experts there. Mr. Etinski and Mr. Mitic were present in
5 Paris and that's all.
6 JUDGE BONOMY: And what are they -- sorry, they were in Paris.
7 You said there were experts in Rambouillet, what do you mean by experts?
8 THE WITNESS: [Interpretation] Mr. Etinski and Mr. Mitic were
9 there. One of them is a retired official of the Ministry of the Interior.
10 He's no longer alive, unfortunately, and Mr. Etinski, at the time, I
11 believe was legal advisor in the Ministry of Foreign Affairs. Both of
12 them were experts for international public law.
13 As for the Albanian delegation, they refused for the experts to
14 meet in Rambouillet because there was such proposals. We wanted these two
15 experts of ours to meet with their experts, that's what we proposed, and
16 the Albanian delegation rejected that. And since these people were
17 practically not used in Rambouillet, they did not go to Paris because
18 Mr. Kutlesic and I, professionally speaking, had the proper training for
19 that kind of work.
20 JUDGE BONOMY: Thank you.
21 Mr. Zecevic.
22 MR. ZECEVIC: Thank you, Your Honour.
23 Q. [Interpretation] Professor, we all heard about the results of the
24 Paris talks. What I want to know now is one thing specifically.
25 Professor, what about President Milutinovic, during his stay in
1 Rambouillet and in Paris, did he ever at any time try to obstruct the
2 negotiations in Rambouillet first and then in Paris?
3 A. This has been amply demonstrated so far. Quite the contrary, in
4 fact. Each and every statement he made whenever he attended any meetings,
5 what he contributed was exactly the opposite. You see he stated at the
6 very outset of the Paris conference: We are prepared to accept a
7 political solution. This is not the sort of statement made by a person
8 who does not wish to contribute meaningfully to a conference or to a round
9 of negotiations. This person is not out to obstruct; he's out to enhance
10 the process. That much is obvious.
11 Q. I should assume that you saw President Milutinovic on a daily
12 basis during your stay in Rambouillet and then in Paris and also
13 previously back in 1998, when you worked together on drafting the
14 documents submitted by Mr. Hill and by Jim O'Brien, as well as during the
15 three joint visits with the president. Did you ever see or hear President
16 Milutinovic voice any sort of desire for war, for the use of force, in
17 order to resolve the Kosovo issue or was it exactly the opposite?
18 A. It was exactly the opposite. The views that he voiced were
19 exactly the opposite of what you have just suggested. We talked about the
20 18th of March declaration issued by the president of the Republic back in
21 1998. The main point of the entire declaration was this: The only way
22 forward for Kosovo and Metohija, the only way for the crisis to be
23 resolved, is a political dialogue between the two sides, between all of
24 the sides, and that is the political gist of everything he ever stated.
25 This one sentence, there wasn't a single time he addressed the public
1 without reiterating this one thing, this one sentence, being repeated over
2 and over again, this one crucial thought. But it's also about his
3 convictions, this was a matter of conviction for him. I'm certain based
4 on my communication with President Milutinovic that this was his
5 inner-most conviction.
6 Q. Professor, in your capacity as deputy prime minister and head of
7 the delegation for talks with Kosovo Albanians back in 1998, in your
8 capacity as chair of the Rambouillet delegation and the Paris delegation,
9 head of the Paris and Rambouillet delegation, did you ever hear President
10 Milutinovic, or indeed anyone else, saying they thought it was a good idea
11 to have the Albanian population driven out of Kosovo and Metohija?
12 A. No, never. Each and every one of their statements make a point of
13 underlining that the Kosovo question could only be resolved by getting all
14 the ethnic minorities to agree. The Albanian ethnic minority always comes
15 first in each and every one of these statements since it also happens to
16 be the most voluminous community, ethnic community in Kosovo.
17 Q. Professor, did you ever hear President Milutinovic say anything
18 along these lines, or perhaps someone else commenting on Milutinovic's
19 words, something to the fact of Yugoslavia being subjected to bombings, to
20 air-raids, would lead to a massacre in Kosovo?
21 A. No, I never heard anything like that.
22 Q. So nothing like that was ever uttered in Rambouillet, for example?
23 A. No, not even there. I attended every single meeting that
24 President Milutinovic attended at the time. I am still under oath, the
25 oath that I took last Monday, and I state with full responsibility that
1 President Milutinovic never at any of the meetings uttered those words.
2 Q. Professor, did anyone from the negotiating troika, Mr. Petritsch,
3 for example, ever complain to you that Mr. Milutinovic or anyone else had
4 told him that any air-strikes would necessarily lead to a massacre in
6 A. No, none of the negotiators ever approached me to complain about
7 anything like that. However, my work with the negotiators was on the
8 wording of the agreement, and that was the gist of all of our
9 communication. Most frequently, I spoke with Mr. O'Brien and Mr. Etinski.
10 Q. Professor, what about the issue of Kosmet's independence. Isn't
11 that in a manner of speaking the one great issue, the issue of all issues,
12 the paramount issue, the issue to end all issues?
13 A. The Albanians unequivocally demonstrated just that. I'm not
14 talking about the more recent history. I'm talking about what I was
15 involved in at the time, the attempts to negotiate in Pristina and then
16 subsequently Rambouillet and Paris. I'm absolutely convinced that for the
17 Albanian side there is no alternative to independence in terms of
18 resolving the Kosmet situation. I'm absolutely positive and I have no
19 doubts whatsoever about that based on my two-year intensive study of the
20 issue in my capacity as Serbia's deputy prime minister, in my capacity as
21 head of the talks delegation, and as head of the Rambouillet and Paris
23 Q. Professor, how do you feel about this? Had this question been
24 ruled out based on your knowledge of all these facts and you were directly
25 and personally involved, could there still have been some sort of a
1 political solution that would have resulted from these talks with the
3 A. A political solution would have implied that Kosovo and Metohija
4 did not become independent, an independent state. I don't think the
5 Albanians would have agreed to that. They hadn't signed the agreement
6 before this chapter was introduced, or rather, this annex, annex 8,
7 chapter 8, formulating the possibility that the eventual status of Kosovo
8 and Metohija would be decided at an international conference, taking into
9 account first and foremost the will of the people living in Kosovo and
10 Metohija. As soon as they heard this, both in Paris and in Rambouillet,
11 they interpreted this to mean plebiscite on the independence of Kosovo and
12 Metohija; that was their instantaneous interpretation.
13 Q. Professor, following your return from the Paris talks, you
14 submitted a report to the People's Assembly of the Republic of Serbia, did
15 you not?
16 A. Yes, it was our job to do that because we had been appointed by
17 that same Assembly to conduct the talks. We had to settle up in a manner
18 of speaking, and we had to have our work evaluated.
19 Q. The session was held on the 23rd of March, was it not?
20 A. Yes, precisely, the 23rd of March, 1999.
21 Q. Could you please go to tab 90, 1D032. Page 4, that's your report,
22 page 4, page 5, through 14. In the English page through -- page 5 through
23 12. There is no need to go through your reports; it's in our binder and
24 you have confirmed its authenticity for us. In this report you state all
25 these facts, which you have stated today before the Trial Chamber, as well
1 as the conclusions that we discussed a while ago. Is that not right, sir?
2 A. Yes, that's right.
3 Q. President Milutinovic also spoke at this Assembly meeting. Do you
4 remember that?
5 A. Yes, he was there throughout and he asked to take the floor. He
6 contributed to the discussion that ensued after the report had been
8 Q. Professor, you heard what President Milutinovic had to say on the
9 occasion, and I suppose there were other occasions when he spoke in the
10 Assembly or when he addressed the public. Did President Milutinovic ever
11 express any sort of radical nationalist views calling for the use of
12 force, war, or anything like that?
13 A. If you look at the entirety of his public statements, you can't
14 find a single example of anything like that.
15 Q. And that applies to the 23rd of March, 1999, as well, does it not?
16 A. Definitely not. If you look closely at what exactly he said, you
17 can arrive at the conclusion yourself quite easily, in fact.
18 Q. Did you listen to President Milutinovic's contribution in the
19 Assembly on the 23rd?
20 A. Yes, I did.
21 Q. He outlined his own views on the situation, the general situation,
22 the Paris/Rambouillet talks, the various requests that were made to
23 Yugoslavia, right?
24 A. Yes.
25 Q. You were, yourself, a party to these talks at both Rambouillet and
1 Paris. In your view, did President Milutinovic mislead the People's
2 Assembly by what he said in the Assembly on the 23rd of March, 1999? Was
3 his contribution misleading in any way in terms of misstating facts or
4 stating things that weren't facts or providing inaccurate information on
5 the substance of the talks or what the actual problem was that was at
7 A. I was physically present, and you also have the record of that
8 discussion. Anyone can have a look and see for themselves. There is
9 absolutely no need for me to comment.
10 Q. But I would like you to comment. After all, you are the one who
11 is best-placed to know. You were involved in the negotiations and talks
12 yourself. You have direct knowledge of all of this. The delegates
13 listening to President Milutinovic in the Assembly did not have the same
14 sort of knowledge that you did.
15 A. I see no elements whatsoever -- do you mean this contribution
17 Q. Yes, this contribution specifically.
18 A. I see nothing in this contribution to suggest anything like that.
19 We're talking about the People's Assembly. There are 250 delegates. Not
20 all of them have the same level of education. This was not meant to be
21 some sort of a dry speech given by a legal expert, an expert on
22 international relations. This is the sort of address that was perfectly
23 suited to the environment that it was given in. This is common language
24 being used to convey a message to the delegates so that they understood
25 what exactly had gone on in both Rambouillet and Paris.
1 Q. Thank you very much, sir. Professor, after the close of
2 discussion, the People's Assembly of the Republic of Serbia as its supreme
3 body adopted a decision and some conclusions, right?
4 A. Yes. It was based on the report and the ensuing discussion that
5 the People's Assembly adopted a number of conclusions. They had adopted a
6 number of conclusions prior to our departure, and the same thing happened
7 following our return and our report. New conclusions were adopted.
8 Q. Can you please go to tab 91, 1D033, sir. Is this the decision?
9 Are these the conclusions that were eventually published in Serbia's
10 Official Gazette?
11 A. Yes.
12 Q. Professor, you were in the Assembly that day and you submitted a
13 report too. Do you remember the exact majority adopting these conclusions
14 and this decision?
15 A. I'm certain that it was a sweeping majority. I think a total of
16 three or four delegates abstained, no more than that. I am, however, now
17 relying on my memory. My memory's imperfect and it has been eight years
19 Q. At any rate, we can go back to the record and see for ourselves
20 what the figures were, right?
21 A. Yes, I'm quite certain that this is the case.
22 Q. No, I'm just asking about what you remember.
23 A. What I remember, let me tell you this: I filed my report. I
24 didn't exactly count the votes, but that was the general atmosphere that
25 prevailed in the Assembly. It was one of universal acceptance.
1 Q. Thank you, Professor. Professor, during the bombing, the NATO
2 intervention against Serbia in 1999, you were still deputy prime minister,
3 weren't you?
4 A. Yes. I was deputy prime minister all the way up to the point when
5 a political agreement was reached on the 16th of October, 2000,
6 establishing a mechanism for the transfer of power to the new government.
7 Q. Professor, during those 78 days, the Government of Serbia sent to
8 President Milutinovic a number of decrees that you spoke of during the
9 first part of your testimony as an expert. Do you remember that?
10 A. Yes, I remember. As a matter of fact, I even signed some of these
11 documents as deputy prime minister.
12 Q. Could you please open tab 92, 1D144.
13 Professor, this decree has to do with the personal identification
14 cards during a state of war. Would you like to have a look at this? Is
15 that correct? Is that what it pertains to?
16 A. Yes, yes, indeed.
17 Q. You signed this letter sent to President Milutinovic, right?
18 A. Yes.
19 Q. Attached thereto is the text of the decree as well as the
20 explanation for it; isn't that right?
21 A. Yes.
22 Q. During your testimony as an expert, we heard your comments as to
23 the reasons for passing this decree and the text of the decree that was
24 published in the Official Gazette. That is 1D144. Do you remember that,
1 A. I remember, I do.
2 Q. Professor, the text that you submitted as attached to this letter
3 is identical to the text that was published in the Official Gazette and
4 what we saw in 1D144. It's just that the president signed the ordinance
5 on passing this decree with this kind of substance.
6 A. The substance, the content, was determined by the government and
7 the president of the republic on the basis of the proposal made by the
8 government, the president signed this, promulgated it, and this is in
9 accordance with Article 83.7 of the constitution, which we commented upon
10 the other day.
11 Q. Thank you. Professor, do you remember what the total number of
12 decrees submitted to the president was?
13 A. If I'm not mistaken, 16 decrees were submitted.
14 Q. And all of these decrees contain proposals made by the government
15 have actually identical -- the identical kind of form like what you
16 signed. You sent a letter with a proposal of the text of the decree to
17 the president, including an explanation as to why it was necessary to
18 pass such a decree?
19 A. That's right. I as deputy prime minister signed those that were
20 from the realm of my responsibilities, and that was legislation and the
21 legal system. As for those pertaining to the economy and the economic
22 system were signed by the other deputy prime minister who was in charge of
23 that particular field and entrusted to do so by the prime minister.
24 Q. These are these 16 decrees, tabs 92 through 101, and then from 103
25 to 110. Professor, during 1999, were you present at this meeting between
1 President Milutinovic and President Rugova?
2 A. Yes.
3 Q. Do you remember when this took place?
4 A. Well, this was ...
5 Q. Have a look at 1D -- no, no, sorry about that. Tab 101, tab 101,
6 P00416, that is the joint statement by President Milutinovic and
7 Ibrahim Rugova.
8 A. Yes, I remember. There are details involved. What did you say?
9 101? Was that right?
10 Q. 101, P00416, signed joint declaration by the late
11 Dr. Ibrahim Rugova and President Milutinovic.
12 A. Yes. That was during the bombing of Serbia, and I remember that
13 it was with great difficulty, at the risk of our own lives, we travelled
14 from Belgrade to Pristina.
15 Q. When you say "you," in the sense of we, you mean yourself and
16 President Milutinovic, right?
17 A. Yes.
18 Q. Tell me, do you remember any particular details concerning this
19 meeting, which as far as I can see here was held on the 28th of April,
20 1999, what was the atmosphere of the meeting?
21 A. Well, the meeting unfolded in a constructive atmosphere, if I can
22 put it that way. Mr. Rugova was a reasonable man. He understood the
23 seriousness of the situation that the country was facing, and in a few
24 paragraphs it was established what it was that was to be done by way of
25 political moves in the newly created situation. So it was established
1 here, it was concluded here, that yet again efforts should be renewed for
2 a political dialogue, that negotiations should be direct. That
3 representatives of the international community could attend negotiations
4 based on mutual consent, but in the capacity of guests, having learned
5 from the experience of intermediaries in Rambouillet and Paris.
6 And finally, to establish as soon as possible an organ that would
7 act as a transition government, but primarily to resolve burning
8 humanitarian issues at the time. So that was the provisional Executive
9 Council of Kosovo. Those were the main points in these talks. It was my
10 impression that Mr. Rugova sincerely and as a human being wanted to find a
11 solution to the newly created situation.
12 Q. Do you remember, Professor, whether Dr. Rugova on that occasion
13 made a present -- gave a present to President Milutinovic?
14 A. I remember, but in view of the ban on presents, I don't want
15 President Milutinovic to be held responsible for something else. He got a
16 present from him, a mineral sort of, a crystal mineral, in a box and he
17 was very hospitable in that situation. The country was being bombed and
18 there were signs of the bombing all over.
19 Q. Thank you. Professor, you were present when they made a statement
20 for television, you stood there by them, didn't you?
21 A. Yes, yes, I was standing there, I was present.
22 Q. Thank you. Professor, I have one more question, one or two
23 questions, rather, and I think that we will be done.
24 A. Thank you.
25 Q. You're welcome. Professor, a moment ago you spoke about
1 statements made by President Milutinovic. I asked you about that I'm
2 interested in your opinion about the character of Mr. Milosevic, who's a
3 person you know who you --
4 THE INTERPRETER: Interpreter's correction, the interpreter
5 misspoke, it's not Milosevic, it's Milutinovic. We apologise.
6 MR. ZECEVIC: [Interpretation]
7 Q. The character of Mr. Milutinovic -- well, can you say what you
8 have to say. I don't want to lead you in any way in giving an answer.
9 A. I don't know what I can say to you specifically.
10 President Milutinovic came to that office with a great deal of diplomatic
11 experience. In that sense, he was an untypical politician, probably
12 because of that kind of experience and because of his nature, he was very
13 open to agreement, negotiations, dialogue. He was never in favour of any
14 kind of dictat, any orders, issuing orders, carrying things out without
15 any comment, anything that he may have said; so a person with whom one
16 could reach agreement and was always ready to hear out the other side and
17 to talk in a civilised manner to people who had different views.
18 Q. Thank you, Professor. In order to illustrate what you said just
19 now, can we look at tab 111, 1D642, agreement on parliamentary elections
20 in the Republic of Serbia, early parliamentary elections. All of this is
21 being done at a very serious moment for Serbia in October 2000. Do you
22 remember that?
23 A. Yes.
24 Q. Do you remember that?
25 A. Yes, absolutely. This was a decisive, crucial move that was made
1 and the transfer of government, transfer of power that occurred in the
2 Republic of Serbia in the month of October of 2000. This was a
3 far-reaching step, and I'm certain that this prevented political conflicts
4 which would not have ended only on the political scene but they might have
5 escalated and reached the proportions even of a civil war. This was one
6 of the most critical moments in the evolution of Serbia from the moment
7 when it adopted a multi-party system in 1990 and from the moment it was
8 constituted as a multi-party parliamentary democracy.
9 Q. On that occasion, President Milutinovic - how should I put
10 this? - managed to find a compromise even with his bitter political
11 opponents to find a solution that prevented bloodshed in Serbia, as you
12 had put it, right?
13 MR. HANNIS: Judge Bonomy, I just wanted to put an objection on
14 the record at this point. This evidence -- the same objection I made
15 regarding the introduction of the letter from ex -- former
16 President Djindjic. I don't think this is material to the issues in the
17 indictment. I understand it may go to mitigation at some point in time,
18 but I don't think it's relevant to the issues in the indictment.
19 JUDGE BONOMY: If it does go to mitigation, of course, it has to
20 be led at this stage.
21 So please continue, Mr. Zecevic.
22 MR. ZECEVIC: [Interpretation]
23 Q. Professor, you heard my question. On that occasion
24 President Milutinovic was the one who managed to find with his bitter
25 political opponents a compromise and a solution which avoided bloodshed in
1 Serbia, civil war at any rate?
2 A. On that occasion, proceeding from a conviction that the
3 then-government in Serbia that was quite constitutional and legal and the
4 National Assembly, that was also quite constitutional and legal, no longer
5 had legitimacy because of the new balance of political power, although
6 according to the constitution this government still had a mandate; its
7 term of office had not expired, and the Assemblies, too.
8 President Milutinovic talked to the leaders of the opposition and
9 the president of the Federal Republic of Yugoslavia,
10 Mr. Vojislav Kostunica, and he together with him was a guarantor of this
11 agreement. He established that the existing government would resign,
12 although it was quite legal and constitutional. There were no objections
13 in terms of constitutionality that could have been voiced against this
15 So this government would resign, a transitional government, a
16 provisional government, would be elected from among the signatories of
17 this agreement. This government would propose to the president to
18 dissolve the National Assembly, then the president would dissolve the
19 National Assembly, and a new National Assembly would be elected, which
20 would be legitimate in relation to the existing political constellation,
21 the balance of political forces that was in place. And then that Assembly
22 would in turn elect its own government. This was the Assembly that was
23 elected on the 23rd of December, and it elected a government and
24 Mr. Zoran Djindjic remained prime minister. So the mandate of the
25 Assembly was still in place.
1 Q. Please go ahead. I just wanted you to slow down.
2 A. The mandate both of the Assembly and of the government was still
3 in place. Their term of office had not expired, but in order to forestall
4 any kind of political enmity and unrest that could escalate, in order to
5 prevent that, this is the move that was made in order to prevent that and
6 to make it possible for there to be a transfer of power in the Republic of
7 Serbia along a legitimate track. I was deputy prime minister in that
8 government, and the prime minister then was Mirko Marijanovic, and he had
9 resigned on the 16th of October because this agreement had been reached.
10 So according to our constitution, according to the constitution of
11 1990, once the prime minister resigns, the mandate of the entire
12 government ceases; and I was deputy prime minister in that government. A
13 provisional government was elected. It proposed to the president to
14 dissolve the Assembly. The president dissolved the Assembly and new
15 parliamentary elections were about to be underway. This showed that as
16 far as the president of the Republic of Serbia is concerned and also the
17 president of the Federal Republic of Yugoslavia, that they were up to
18 their constitutional office; that is to say that they embodied state
19 unity, that they in a way were organs with the highest level of legitimacy
20 after the Assembly. So they proposed -- they proposed that the existing
21 authorities, because it was believed that there was no legitimacy, that
22 they should interrupt their mandate and that the new political forces be
23 given a chance to elect new organs of government.
24 So as you asked me about this move of President Milutinovic, we
25 see those characteristics of his personality and of his character, the
1 ones that I spoke about a few minutes ago.
2 Q. Professor, just one more question. This entire transition was
3 carried out in accordance with the laws in force at the time?
4 A. Yes. This transfer of power was in accordance with the
5 then-constitution that was in force; moreover, that constitution remained
6 in force for another six years. So it wasn't Milosevic's constitution, as
7 it was referred to, no. It was in force for another six years for the new
8 government. And it wasn't until last year in November of 2006 that Serbia
9 adopted a new constitution.
10 Q. Professor, thank you very much.
11 MR. ZECEVIC: Your Honours, no further questions for this witness.
12 JUDGE BONOMY: Mr. Zecevic, two tabs we encountered I think which
13 were not translated, tab 17, tab 80. From 17 you read the -- or you had
14 the Professor read the relevant part, therefore it does not need to be
15 translated into English.
16 MR. ZECEVIC: Yes.
17 JUDGE BONOMY: I think for tab 17 there should be an
18 extra -- there should be a translation, and it might be marked for
20 MR. ZECEVIC: Well, Your Honour, the translation is pending --
21 JUDGE BONOMY: Ah, yeah. So it's marked for identification.
22 MR. ZECEVIC: Yes.
23 JUDGE BONOMY: Pending translation.
24 MR. ZECEVIC: Yes.
25 JUDGE BONOMY: Just one other matter about your exhibits. You
1 haven't referred to them all, so what's the position in relation to the
2 ones you skipped over?
3 MR. ZECEVIC: Well, Your Honours, as our witness has adopted it in
4 92 ter statement, I didn't want to --
5 JUDGE BONOMY: Yeah, so does the 92 ter statement list everything
7 MR. ZECEVIC: That's right, Your Honour.
8 JUDGE BONOMY: And are you doing -- is it listed paragraph by --
9 are they all listed paragraph by paragraph or are you relying to any
10 extent on the annex, I think, which is the index for these --
11 MR. ZECEVIC: The annex is basically the very same list.
12 JUDGE BONOMY: Yeah.
13 MR. ZECEVIC: Except that it doesn't have tab numbers.
14 JUDGE BONOMY: But he does refer within his 92 ter statement --
15 MR. ZECEVIC: To all these documents which are contained in this
16 list, yes.
17 JUDGE BONOMY: -- before you get to the annex?
18 MR. ZECEVIC: That's right.
19 JUDGE BONOMY: Thank you very much.
20 MR. ZECEVIC: Thank you.
21 [Trial Chamber and registrar confer]
22 JUDGE BONOMY: Mr. Zecevic, can you remind me what 1D671 is. Was
23 that the -- it was the Politika article.
24 MR. ZECEVIC: Yes, that is -- well --
25 JUDGE BONOMY: Mr. Hannis --
1 MR. ZECEVIC: That's --
2 JUDGE BONOMY: -- does that require to be translated?
3 MR. HANNIS: No, Your Honour, I think the other exhibit he showed
4 is the English of what appears in Politika. The only difference is
5 Politika has the signatures for us to see.
6 JUDGE BONOMY: I think in these circumstances it remains as we
7 decided earlier admitted without need for you to submit any further
8 translation of it.
9 MR. ZECEVIC: Yes, Your Honour, because the previously admitted
10 document, the 1D18, the Professor Weller book actually cites the whole
11 declaration word by word in English. This is -- basically, this is just
12 for the purposes of photography because it has the signatures. Thank you.
13 JUDGE BONOMY: Thank you.
14 This is a suitable time for us to adjourn for our lunch break.
15 Professor, please go again with the usher. We will resume at
16 1.45, when you will start the cross-examination by Mr. Hannis.
17 [The witness stands down]
18 --- Luncheon recess taken at 12.42 p.m.
19 --- On resuming at 1.46 p.m.
20 [The witness takes the stand]
21 JUDGE BONOMY: Mr. Hannis.
22 MR. HANNIS: Thank you, Your Honour.
23 Cross-examination by Mr. Hannis:
24 Q. Good afternoon, Professor Markovic.
25 A. [In English] Good afternoon.
1 Q. My name is Tom Hannis, and I will be asking you some questions. I
2 want to ask you about your report, but before I do that, I think, while
3 you've still got the red binders there I want to ask you a couple of
4 questions about the decrees that were issued during the war. If you could
5 turn, sir, to what are tabs 92 through 95 in your red binder, and that is
6 exhibits 1D144, 147, 150, and 153. You're familiar with those, Professor?
7 A. Yes.
8 Q. Now, these are the four decrees that the text for the decrees that
9 ultimately issued, as well as the statement of reasons, were I guess
10 prepared by you or delivered through you to Mr. Milutinovic for the
11 signature and issuance. Is that how it worked?
12 A. This was formulated by the government at its session, the
13 Government of Serbia, because the government is the one that establishes
14 the proposal. I as deputy prime minister in charge of legislation signed
15 it on behalf of the government, and in the accompanying letter you see
16 that the Government of the Republic of Serbia at the 83rd Session in April
17 of 1999 formulated the following proposals. So the government formulated
18 this, and I signed it on behalf of the government. Later on, it was
19 submitted to President Milutinovic for promulgation and the promulgation
20 itself was announced in the Official Gazette.
21 Q. When you say the government met in a session on this matter, how
22 many people are we talking about? Is that the five deputy prime ministers
23 and the prime minister or is that some bigger group?
24 A. This involved the entire government, the entire cabinet. The
25 cabinet had 30-something members, and in its plenary session cabinet
1 adopted all decisions. That was the only possible way. The government
2 could only issue decisions in sessions where they had a quorum.
3 Q. How often were they meeting during the first two weeks of the NATO
4 bombing, did they meet on a daily basis?
5 A. As a rule, cabinet held sessions once a week; however, whenever
6 necessary they would meet more often. As far as I remember, at that time
7 the sessions were held two or three times a week because the country was
8 being bombed and it was very dangerous for the cabinet to meet frequently.
9 Q. Do you recall where the meetings were held?
10 A. Initially the sessions were held in the government building in
11 Nemanjina 11. However, since that building was bombed and destroyed,
12 subsequent sessions were held in the building of the national bank of
14 Q. With respect to these four decrees, I see that -- it appears to be
15 what's a cover letter to President Milutinovic, and it seems as though the
16 identical cover letter was prepared and a copy attached to each of the
17 four separate decrees, with a circle being drawn around the number of, I
18 guess, the particular decree to which it pertained. Do you recall is that
19 how it was done?
20 A. Yes, correct. There was a cover letter accompanying the text of
21 the decree and then there was also the statement of reasons.
22 Q. And the date on the top of the page on each of these appears to be
23 the 6th of April. So I take it, is that the day that you signed it and
24 that it would have been delivered to President Milutinovic?
25 A. That was the day when I signed the letter. Now, whether it was
1 delivered to President Milutinovic on the same day, I truly don't know
3 MR. IVETIC: Your Honour, this is less of an objection more of a
4 technical point. If counsel is going to refer to multiple documents as he
5 has now to each of these, it would be helpful if he at least gives the
6 exhibit numbers so they can be on the e-court. Because none of the
7 Defence counsel have any of these binders that the Judges and Prosecution
8 apparently have. So it's impossible for us to follow all this and I fear
9 we're going to get lost in the midst of all this as we try to look up
10 these documents, when we start referring to multiple documents that we
11 don't have in front of us, that we have to seek on e-court. Thank you.
12 JUDGE BONOMY: Mr. Hannis has, in fact, given you the numbers as
13 well as the tab numbers and we've only been referring to the first of
14 these so far. So he'll no doubt bear in mind to refer to each of the
15 others as he goes on.
16 MR. HANNIS: Yes, Your Honour 1D144 is the one that's on the
17 screen I understand, and these letters are identical except, as I
18 indicated, the four documents that are listed on 1, number 2 is circled,
19 that's on 1D144. And the others have either 1, 3, or 4 circled, but the
20 text of each letter is the same.
21 Q. Now, Mr. Markovic, you don't know when these would have been
22 delivered to Mr. Milutinovic, whether it was the same day or later?
23 A. I don't know that.
24 Q. In -- do you know how it was delivered and by whom?
25 A. I don't know that either with any certainty. I can only
1 speculate. These are technical issues after all, and normally deputy
2 prime minister doesn't know that.
3 Q. In relation to where the government met in their sessions, where
4 was Mr. Milutinovic's office, was it in the same building, a block away,
6 A. The office of President Milutinovic was always in the same place
7 and that place was not bombed, it was in Andricev Venac. That building
8 was not far from the government building which was bombed, and it was a
9 bit further away from the building of the National Bank of Serbia, which
10 is where the government held its sessions subsequently.
11 Q. In addition to your signature on each of these four cover letters,
12 beneath the text on the left side of the page it appears there's another
13 signature and the date of 6 April. Do you see that on your version?
14 A. I do.
15 Q. Do you know whose signature that is?
16 A. I can't decipher this. I wouldn't be able to tell you with any
17 certainty because the signature is not legible.
18 Q. And do you recall if that signature was on the document at the
19 time you signed it?
20 A. I don't think it was there when I signed it.
21 Q. And I assume, professor, as a deputy prime minister you weren't
22 yourself actually physically preparing these documents?
23 A. That's correct.
24 Q. Do you know who did that with regard to these four?
25 A. It was done by the secretariat of the government pursuant to the
1 decision taken by the government in one of its sessions.
2 Q. And do you recall the name of the individual who actually did that
3 hands-on work?
4 A. Well, at that time the secretary of the cabinet was a lady called
5 Zivka Knezevic and deputy secretary of the cabinet was
6 Mrs. Mira Djurekovic. I don't think that these are their signatures.
7 Q. Do you recall when these four decrees were actually published in
8 the Official Gazette?
9 A. I had the text in front of me several days ago when I was
10 interpreting it here before the Trial Chamber. I wouldn't be able to tell
11 you when they were actually published, but I did have this in my hands in
12 examination-in-chief when answering the questions of Defence and the Trial
14 Q. Okay. We'll look at -- we'll look at another document in a minute
15 that may help us with that, but before we move on I want you to look at
16 144, that's tab 92 for you. The second page in that document is the
17 actual decree on personal identification cards during a state of war. And
18 that page has the date of 31 March 1999 and President Milutinovic's name
19 on it. Is that how it appears on your copy -- I'm sorry, Professor, I may
20 have misled you. When I said number 144, I was referring to our exhibit
21 number in court. It's tab 92 for you. Do you have that? Yes, I think
22 it's the second page.
23 A. Yes.
24 Q. And the actual decree itself with President Milutinovic's
25 typewritten name at the bottom at any rate is dated 31 March 1999,
2 A. Yes, that's correct. Well, my explanation is -- yes. It says
3 here the 6th of April too. I thought that the government held its session
4 and then subsequently sent this to President Milutinovic, but now I see
5 that there's a difference in dates.
6 Q. Yes, that's what my question was about. Do you know why the
7 decree itself has the date of 31 March, which is six days before the date
8 on the cover letter?
9 A. I wouldn't be able to explain this, but one needs to see when this
10 decree was published in the Official Gazette of the Republic of Serbia.
11 You know what, the country was in the state of war. It was impossible to
12 keep orderly records. The secretariat of the government was moved to
13 another building, somebody else's building. So it's possible that such
14 errors crept up because the administration did not work under normal
15 circumstances. There were air-raids, air sirens going on constantly.
16 MR. HANNIS: Could you put up Exhibit P993, please.
17 Q. Professor, do you see that on the screen in front of you? Sorry,
18 I don't have a hard copy for you.
19 A. I see that.
20 MR. HANNIS: And I'd like to go to the page with the
21 identification cards, the first English page it was up. I'm not sure
22 which e-court page it is in this document.
23 Q. Professor, can you see the cover page for that issue of the
25 A. I see that.
1 Q. My Cyrillic's not that good, but that looks like the 7th of April,
3 A. Yes, the 7th of April, 1999.
4 MR. HANNIS: And if we could go I think to the last page of this
6 Q. Professor, I think it's item 306 is the law on identity cards.
7 A. Yes.
8 Q. There in the Official Gazette it has that date of 31 March 1999.
9 Let me ask you a question about how the process works. When you on behalf
10 of the government proposed this decree and forwarded it on to President
11 Milutinovic, what does he do with it? Does he actually sign it? Do you
12 know happens between the time it leaves your hands and the time it
13 actually appears in the Official Gazette?
14 A. Once it leaves the cabinet, President Milutinovic signs the
15 decree, and then it is sent to the Official Gazette to be published. This
16 is the path that a decree travels within the channels of the Government of
17 Serbia before it is published.
18 Q. Sorry, waiting for translation.
19 Sir, do you know what happens with the copy that the president
20 signs? Where is that kept once he signed it? Is it kept in an official
21 archive? In his office? Where would it be?
22 A. I can only speculate that it is kept in the archives of the
24 Q. Okay.
25 THE INTERPRETER: Could the witness repeat the end of his answer,
2 MR. HANNIS:
3 Q. Now, this tab --
4 MR. HANNIS: I'm sorry, was there a question.
5 JUDGE BONOMY: The interpreter seems to have missed part of your
6 last answer. Could you repeat that answer, please, Professor.
7 THE WITNESS: [Interpretation] Most likely it is kept in the
8 archives of the government and in the archives of the president of the
9 republic. But when it comes to these administrative issues, I'm not
10 knowledgeable about them because members of the cabinet did not deal with
11 such issues. It was the secretariat that dealt with them.
12 JUDGE BONOMY: Thank you.
13 MR. HANNIS:
14 Q. With regard to tab 92, Exhibit 1D144, the decree on identification
15 cards, do you know who actually drafted this decree? That wasn't you, was
17 A. No, no. Drafts of decrees, or rather, of all enactments are
18 prepared by the relevant ministry. In this case, it was done by the
19 Ministry of the Interior.
20 Q. And do you know who in the Ministry of the Interior would have
21 drafted this particular one?
22 MR. IVETIC: Your Honour.
23 JUDGE BONOMY: Just a moment, please, Professor.
24 Yes, Mr. Ivetic.
25 MR. IVETIC: The last couple of days the witness has said that
1 anything relating to the Ministry of Internal Affairs is beyond his
2 expertise and now we're getting a question for him to speculate who in the
3 Ministry of Internal Affairs would have done X, Y, and Z. I think that
4 we're getting afoul of the witness's capacity to answer.
5 JUDGE BONOMY: Well, the witness is perfectly able to tell us the
6 extent of his knowledge and to know the difference between that and
7 speculation, so we will allow the question to be answered.
8 Professor, do you know who in the ministry would have drafted this
9 particular order?
10 THE WITNESS: [Interpretation] In every ministry there was a
11 service dealing with regulations, and that service normally created drafts
12 of regulations adopted by the government, all laws that the government
13 prepared as its proposal for the National Assembly. So this was a service
14 drafting regulations, but only within the competence of every ministry.
15 In addition to that there was a government secretariat for
16 legislation, and every draft regulation had to pass through that
17 secretariat, every draft submitted to the government at its session. And
18 the secretariat had to approve it, approve it in the sense that they would
19 check whether it was in compliance with the constitution and the legal
20 system and to see whether it was valid in the legal technical sense of the
21 word, but they did not go into the content of such drafts.
22 MR. HANNIS:
23 Q. And I take it the -- well, I don't know. Let me ask you. The
24 statement of reasons supporting the proposed decree, is that drafted by
25 the same office or same individuals that wrote the substantive content of
1 the decree or is there a separate department that would deal with reasons?
2 A. The same service that wrote a draft regulation also writes the
3 statement of reasons for that draft.
4 Q. Okay. Now, this particular decree, and I guess the others as
5 well, by -- by looking at them it appears that they're intended to apply
6 throughout the entire Republic of Serbia, including Kosovo and Metohija,
8 A. That's correct. According to the constitution, the Republic of
9 Serbia is a single legal territory. The regulations adopted by the state
10 organs of the Republic of Serbia are considered valid in the territory of
11 the entire republic.
12 Q. Okay. You told us a little bit yesterday I think about the
13 changes, the differences, between this law and the previous Law on
14 Identification Cards.
15 MR. HANNIS: And I believe that's Exhibit P1832, if we could put
16 that up, please?
17 Q. Professor, I have this listed as tab 27, but I don't know if it's
18 27 in the red binder or in the blue binder. If, perhaps, Mr. Zecevic
19 could assist.
20 A. It's not in this binder.
21 Q. I hope I wrote the number down. It may have been --
22 MR. ZECEVIC: It is -- Your Honours, if I may be of assistance, it
23 is at tab 28 of the binder.
24 MR. HANNIS: Is that the red binder or the blue binder?
25 MR. ZECEVIC: The blue binder, this one.
1 MR. HANNIS: Thank you.
2 THE WITNESS: [Interpretation] My register is grey, it's neither
3 red nor blue.
4 MR. ZECEVIC: [Interpretation] Tab 28 of the grey register.
5 MR. HANNIS:
6 Q. My apologies, Professor, I think I'm the only one who had blue.
7 Do you have that?
8 A. Yes, yes, I do.
9 Q. I think you told us yesterday that some of the differences were
10 that there was a reduction in the age from 18 to 14, yes?
11 A. Yes.
12 Q. And I think you also indicated there was a change in the
13 requirements about how one went about getting an identity card, if they no
14 longer had theirs, in the new law. But could you look at Article 23 in
15 the old law, that's Exhibit P1832 or tab 28 for you.
16 MR. HANNIS: Could we go to I think it's the last page of this
17 document that has Article 23. And can we have the English up as well,
18 it's page 5.
19 Q. Do you have that before you?
20 A. Yes.
21 Q. Am I reading that correctly, Professor? That seems to say that
22 the Law on Identity Cards, the old Law on Identity Cards, applied
23 throughout the territory of the republic outside the autonomous provinces
24 and in Vojvodina. As I read that, it seems it does not apply to Kosovo
25 and Metohija.
1 A. You are entirely right. This is a law that was adopted in 1974,
2 under the 1974 constitution. And there was, indeed, the sort of regime in
3 place in terms of the division of legislative powers between the Republic
4 of Serbia on the one hand and the province on the other. There is
5 reference here to Article 301 of the Constitution of the Socialist
6 Republic of Serbia, however, as far back as in 1990, the constitution
7 ceased to apply. The 1974 constitution has 136 articles, therefore it's
8 impossible to invoke Article 301.
9 I think this Law on Identity Cards was followed on another Law on
10 Identity Cards that was in compliance with the 1990 constitution. This
11 law was adopted in 1974 when the Constitution of the Socialist Republic of
12 Serbia was in force and that's the name of the Official Gazette, too, the
13 Official Gazette of the Socialist Republic of Serbia, when it still was a
14 socialist republic, and that was for as long as 1990. Back in 1990, it
15 became the Republic of Serbia, and when the new constitution was adopted
16 the old 1974 constitution ceased to apply. This law was passed under the
17 1974 constitution and it had to be made consistent with the new 1990
18 constitution. I'm not sure about the number of the Official Gazette, when
19 these -- when this law was published -- in which this law was published.
20 Other than that, you are entirely right in what you are saying.
21 Q. After the Federal Republic of Yugoslavia was created, do you know
22 was there -- was there a national identity card that applied for everyone
23 in Serbia and Montenegro and were there separate identity cards for those
24 two republics? Do you know what the requirements were?
25 A. The Republic of Serbia had its own Law on Identity Cards, and the
1 Republic of Montenegro had its own. Given the fact that in addition to
2 their student records, our students also are asked to provide IDs at their
3 exams, I've had opportunity to see for myself and I have realised that the
4 two look differently.
5 Q. Thank you, Professor, that's all I had on that one.
6 JUDGE BONOMY: I have to say at the moment, Mr. Hannis, I don't
7 understand what the Law on Identity Cards between 1990 and 1999 was, do
9 MR. HANNIS: I don't know at this point, Your Honour.
10 JUDGE BONOMY: All right.
11 MR. HANNIS:
12 Q. Professor, then just a couple more questions regarding the
13 decrees. I think you've said it was your understanding there were 16
14 decrees in all that were issued during the 78 days of war when
15 President Milutinovic was in that position to issue decrees because the
16 National Assembly could not meet during the state of war. These four
17 were -- came through you because they fell under the area of expertise
18 regarding legal matters that you were responsible for, correct?
19 A. That's right.
20 Q. And I believe the other 12 all seem to have come from your -- one
21 of your fellow deputy prime ministers, Mr. Seselj, who was responsible for
22 the economy, matters related to that. Is that consistent with your
23 understanding? Who were the other three deputy prime ministers in the
24 government in March and April of 1999, do you recall?
25 A. I do. Professor Milovan Bojic --
1 MR. ZECEVIC: Your Honours --
2 THE WITNESS: [Interpretation] Then, of course, Mr. Seselj. I was
3 to -- I can't remember. I'm already feeling very tired. We did read the
4 relevant portion from the Official Gazette yesterday, didn't we.
5 JUDGE BONOMY: Mr. Zecevic.
6 MR. HANNIS: Just have a pause --
7 MR. ZECEVIC: Your Honours, the exhibit was shown in the court
8 this morning. It is -- it has its number and I don't see why --
9 MR. HANNIS: Well, I thought the exhibit I saw this morning
10 was -- perhaps I'm mistaken. I saw an earlier one with five deputy prime
11 ministers but Mr. Seselj wasn't one of them, so I assume there was a
12 change at one point in time.
13 MR. ZECEVIC: Both exhibits were -- the Official Gazettes were
14 both the 1994 and the 1998 government members and the vice-presidents
15 was -- was opened -- was exhibited in the court --
16 JUDGE BONOMY: Can you remember the number?
17 MR. ZECEVIC: Well, if you can give me just one minute, Your
19 JUDGE BONOMY: That would be helpful.
20 [Trial Chamber confers]
21 MR. ZECEVIC: Your Honour, it's 1D260.
22 JUDGE BONOMY: Have you a tab number for that?
23 MR. ZECEVIC: Just a second, Your Honour, I have to find it
24 in -- 1D260. I'm sorry, Your Honours. I'm sorry, Your Honour, we cannot
25 locate it. I'm sure that I showed it this morning to the witness.
1 THE WITNESS: [Interpretation] I've got it, Tomislav Nikolic and
2 Dragomir Tomic; Milovan Bojic; myself, Ratko Markovic. Tomislav Nikolic,
3 Dragomir Tomic, and Vojislav Seselj, this is number 7, the red tab. I was
4 involved in the work of two different cabinets. It's very difficult to
5 keep track of all the people who were there.
6 MR. ZECEVIC: [Previous translation continues]...
7 MR. HANNIS:
8 Q. Thank you, Professor. And with regard to those three others that
9 you named, Mr. Tomic, Mr. Bojic, and Mr. Nikolic, can you tell us what
10 their portfolios were, what areas were they responsible for, if you
12 A. Mr. Bojic was in charge of social activities, culture, the health
13 system, anything other than the economy. I think Mr. Nikolic was in
14 charge of public companies, and Mr. Tomic was in charge of commerce.
15 Q. Thank you. I think one last area of questions about the four
16 decrees. How -- what was the process before you signed it and passed it
17 on? Was there a discussion in the cabinet or was it merely presented to
18 you to rubber-stamp and pass on? How did that work? How did you decide
19 what was appropriate to rise to the level of being issued as a wartime
21 A. Well, the same thing applied as applied to the work of any
22 collective body. The cabinet had an agenda that was determined ahead of
23 time. Materials were provided in relation to each of the items on the
24 agenda. First there was discussion, and then came decisions. Minutes
25 were taken of each of the cabinet meetings. Once a decision was taken, it
1 would be signed on behalf of the government by a -- by whichever minister
2 was in charge of a particular area. I said several days ago that it was
3 the prime minister who tasked the individual members of the cabinet with
4 their respective responsibilities. The Law on the Government or the Law
5 on Ministries said nothing about the specific areas that members of a
6 cabinet were supposed to be in charge of.
7 Q. You said it worked the same as work of any collective body, but
8 who got to vote on particular issues? Did it require unanimous agreement
9 before this would go on or could you make the ultimate decision because
10 you were the prime minister in charge of that particular topic? How did
11 that work?
12 A. The decision-making process in the cabinet was prescribed by the
13 law and by the rules of procedure governing the work of the cabinet.
14 Decisions were made as a rule by consensus. All of the cabinets that I
15 was involved in were coalition cabinets, which means that what was
16 required was a consensus by all of the partners involved. Each and every
17 cabinet member attending a particular session had the right to involve
18 themselves in the discussion. No cabinet meeting could be held without a
19 minimum of those required present.
20 Q. Do you recall what the quorum was for government meetings?
21 A. The quorum was the majority of the total number of members of the
22 entire cabinet.
23 Q. And -- I'm sorry, just so I can be clear. That -- those members
24 of the cabinet would include the prime minister, the five deputy prime
25 ministers, and the ministers of each of the republic ministries, correct?
1 A. That's right. This also included ministers without portfolio.
2 The number of those was always rather low. There were normally a handful
3 of those, and their responsibilities were defined by the prime minister,
4 whereas all the other ministers had their responsibilities defined by the
5 Law on Ministries. The Law on Ministries provided detail provisions for
6 the work of any of the ministers taking part in the work of the cabinet.
7 Therefore, there were those ministers who headed ministries within a
8 cabinet and those without portfolio.
9 Q. Do you recall how many ministers without portfolio there were in
10 the cabinet in March/April of 1999?
11 A. We can have a look at the decision on appointments to the cabinet.
12 This is a decision that we mentioned a while ago. My apologies.
13 Q. It's quite all right.
14 MR. ZECEVIC: [Interpretation] Tab 7 marked in red.
15 THE WITNESS: [Interpretation] I keep confusing red and grey.
16 MR. HANNIS: Thank you, Mr. Zecevic.
17 THE WITNESS: [Interpretation] You can see about the second cabinet
18 that I was involved in, there was seven ministers without portfolio.
19 There were precious few in the first one, I think as many as three, but
20 even that can be checked. Yes, in the first cabinet there were three such
21 ministers, this is at tab 1, there were three ministers without portfolio
22 in the first and seven in the next one. Seven ministers without portfolio
23 and 23 ministers who actually headed specific ministries. Five deputy
24 prime ministers and a prime minister, a total of 36 members. That is how
25 many different members the cabinet comprised in 1998.
1 THE INTERPRETER: Interpreter's note: Could both of the witness's
2 microphones please be switched on. Thank you.
3 MR. HANNIS:
4 Q. Professor, you said the ministers without portfolio were
5 hand-picked. Who picked them, the prime minister?
6 A. No, they were picked in the same way as those who headed specific
7 ministries. They were appointed by the parliament, the People's Assembly,
8 at the proposal of the prime minister. But the difference between them on
9 the one hand and those ministers who headed actual ministries was that
10 they didn't have their specific area prescribed by law. They were
11 assigned responsibilities by the prime minister. Sometimes he would give
12 someone, for example, the assignment of monitoring problems related to
13 self-government and sometimes related to a different issue that may or may
14 not have arisen. But their principal relationship was to the prime
16 Q. With regard to these four decrees regarding matters related to
17 internal security, identity cards, do you recall the discussions that were
18 had regarding any of them?
19 A. I don't remember any discussions like that. Maybe I simply wasn't
20 party to any such discussions. Once again I have to underline the fact
21 that the circumstances prevailing in the country were quite irregular. It
22 was difficult to travel across the country. The cabinet secretariat was
23 in a different building altogether and the government meetings took place
24 elsewhere. The ministers were facing a great deal of hardship even trying
25 to reach the building where a session was taking place. The normal
1 communication between cabinet members at the time was disrupted due to the
3 Q. I understand. Thank you for that. Let me move on now. I want to
4 ask you some questions about your expert report. You mentioned a little
5 bit ago, Professor, that you were tired. Do you feel okay to continue?
6 Do you want a break?
7 A. No, thank you. I prefer to continue. There's no reason to stall
8 the work of this court. My age is my own problem.
9 Q. I have a similar problem, Professor. Your expert report - I don't
10 know what tab that is in your binder - number 1 in your grey binder I
11 guess, in the introduction the very first sentence - and this is Exhibit
12 1D682 for the record - it says: "The institution of the president of the
13 republic was the most contentious issue in political and expert
14 discussions at the time of and immediately after the adoption of the
15 Constitution of the Republic of Serbia of 1990."
16 And you note that: "At this time the Republic of Serbia for the
17 first time obtained an executive head of state." Now, are you referring
18 to the president as an executive head of state, correct?
19 A. Yes, you're quite right.
20 Q. Okay. But as I understand your testimony earlier this week, he
21 was not an operational executive?
22 A. In terms of his powers, he was no different from a president of
23 the republic under those constitutional systems where a president of the
24 republic is appointed or elected by the parliament. He has no effective
25 powers, such as is normally the case, in textbook parliamentary republics
1 such as Italy and Germany, where presidents do not have any great powers.
2 The same thing applied to the president of the republic in the Republic of
3 Serbia. Although he's directly elected by the citizens and directly
4 revoked or recalled by the citizens, he has the -- he enjoys the greatest
5 extent of democratic responsibility. But the president's powers did not
6 rise to quite the same level and that's why theorists do not see Serbia at
7 the same level as countries with a semi-presidential system.
8 MR. ZECEVIC: Your Honours, if I may be of assistance to my
9 learned friend. I believe he has been misled by not appropriate
10 translation and it was raised by Your Honours the very first day. The
11 word in Serbian is "inokosan" and we tried to find the proper
12 explanation. It is not executive, it is "inokosan" an individual or -- it
13 was translated "sole" or head of state or something like that. If you
14 remember, it was the issue we have been talking about the very first day.
15 Inokosan, we said individual or -- "executive" is definitely a wrong
17 JUDGE BONOMY: Perhaps it can be clarified, Professor, by you
18 telling us what was the difference between the role of the president prior
19 to 1990 and the role of the president from 1990.
20 THE WITNESS: [Interpretation] Under the 1974 constitution, Serbia
21 had no president of the republic. It did have a Presidency, though, which
22 was a collegial body. It had some members and had the following function.
23 It had the function of the head of state of the Republic of Serbia.
24 JUDGE BONOMY: I think that that is an adequate answer to the
25 issue that arises here because the detail of that's immaterial. It's
1 important to concentrate on the detailed powers of the president from 1990
3 Mr. Hannis.
4 MR. HANNIS: Thank you.
5 Q. And in describing the controversy or the debate that took place
6 around the time the constitution came into being regarding the office of
7 the president, you said that some of the critics of the constitution
8 claimed that the powers of the president under this new constitution were
9 unusually broad, correct?
10 A. Correct.
11 Q. And those same critics read it as making the president the most
12 powerful constitutional institution in Serbia. Isn't that what some of
13 those people said?
14 A. At the time when the Constitution of the Republic of Serbia was
15 adopted in 1990, the multi-party system of the Republic of Serbia was just
16 in its initial stage. And at that time the constitution of 1990 focused
17 on the constitution of the president of the republic, and that is what
18 most criticism was voiced at. And it was being said that it was being
19 tailor-made for the then president to the Presidency, Slobodan Milosevic.
20 And that is precisely why this criticism was more of a form of inter-party
21 political strife in Serbia rather than being argumented in an objective
22 sense, impartial sense based on scholarly arguments.
23 Q. Well, can you tell us who some of the critics were, the critics
24 were, I take it, academics, law professors, intelligent people with some
25 understanding of the law and constitutions, right? We're not talking
1 about the general public making these kind of criticisms, are we?
2 A. That's right. I mentioned that in my expert opinion. I mentioned
3 their words, the text that they actually uttered on that occasion. So it
4 was some of the scholars who spoke up for the same reasons, political
5 reasons, while putting into the background scholarly criteria. They
6 criticised the institution of the president of the republic.
7 The best answer to the question as to what the true reaches of the
8 office of the president are was given by Mr. Djindjic in 1997 when he
9 said - and we quoted that here - that that office does not have any
10 particular responsibilities, that the president of the republic cannot
11 even appoint a prime minister designate of his own free will and he cannot
12 of his own accord dissolve the Assembly, that it's only a symbolical
13 office. At that time, Mr. Djindjic was one of the opposition leaders and
14 this is his very own statement, and he said that he himself would not run
15 for that particular office.
16 So as soon as President Milosevic ceased to hold the office of the
17 president of the republic, automatically all criticism of that office
18 ceased. And what I said in my expert opinion is that it was only authors
19 of textbooks in constitutional law and professors of law at universities
20 that dealt with these questions. The broad public became totally
21 disinterested in the office of the president of the republic then.
22 Q. Okay. I guess I'm struggling with this controversy because, I
23 don't know, it seems to me if you're looking at a document to analyse the
24 document, it says what it says and your opinion about what it means, for
25 example, about the relative powers of the president vis-a-vis the National
1 Assembly and/or the government, that shouldn't change depending on who the
2 president is. Would you agree with me?
3 A. I fully agree. At that time as well the president had the same
4 powers that President Boris Tadic had according to this constitution, that
5 is the president in office right now. So the powers are completely the
6 same. However, the personality of Slobodan Milosevic had this magnetism.
7 So critics focused on that particular office in order to go for a
8 political show-down with him. That is what criticism of the office of the
9 president of the republic was based on. He did not have any greater
10 powers than the presidents who came after him. However, as a person, as a
11 personality, he had this charisma. And therefore, critics of the 1990
12 constitution focused on the office of the president of the republic
13 because he held that office.
14 Q. But, Professor, as a lawyer and as a constitutional law scholar
15 and someone whose written constitutions, would you agree with me that one
16 of the things that drafters of constitutions often try to do is trying to
17 strike a balance between having -- I don't know, having a document with
18 1.000 articles with every possible contingency outlined in strict rules
19 and having a very rigid inflexible document which has certain advantages
20 because everything's clear and everyone knows where the lines are; and on
21 the other hand, having a very flexible document with a lot of ambiguity in
22 it to allow for changes to circumstances in the future and not having the
23 necessity to amend the constitution every six weeks or six months because
24 of new changes. Isn't that part of the challenge in creating a
1 A. Yes, precisely, it is a challenge. The authors of the
2 constitution, or rather, all authors of constitutions have to bear in mind
3 a balance between these two extremes. That is to say, to what extent one
4 should go into detail and in this way make the constitution short-lived,
5 or should one opt for a constitution containing principles only and thus
6 making it longer lived. One of the reasons why the American constitution
7 is still valid for over 200 years is precisely because that is what its
8 authors opted for.
9 Q. And almost every constitution is going to have some ambiguity
10 built into it. It's just the nature of language and the nature of lawyers
11 as wordsmiths for that to happen, correct?
12 A. That's right. That's right. I agree with you. Answers to these
13 ambiguities are given by constitutional practice, by jurisprudence, or
14 interpretations provided by the Constitutional Court in its rulings.
15 Q. And at least the experience that I'm familiar with in the United
16 States is that partly because of that ambiguity in a constitution, the
17 office of the president can be seen as being stronger or not so strong
18 depending in part on the individual who's holding office, because of how
19 they work with the ambiguities inherent in our constitution. Would you
20 agree that's how it works in real life with presidents and constitutions?
21 A. Absolutely. I agree, and that is why in America there are some
22 great presidents, as it is said, although they all had the same powers in
23 accordance with the constitution of 1777, but some of them were simply
24 strong personalities and therefore, gave an imprint through their
25 presidency. On the other hand, there were presidents who went by
1 unnoticed on terms of their influence, except for the fact that they held
2 the office of president in a given period of time.
3 Q. Thank you, Professor. And because of that factor, isn't that the
4 reason that some of the critics raised such an alarm at the time was
5 because Mr. Milosevic, a strong personality, was in that position?
6 A. Precisely, that was the reason. He was a person with a great deal
7 of charisma and who was a party leader. So a president of the republic
8 who does not have a strong political party behind him is handicapped, one
9 who is not a leader of a major political party. He cannot have the same
10 kind of aura that a president who's a party leader can have.
11 Q. Thank you for that. One other thing in your introduction in your
12 expert report when you described the controversy, you say: "Those who
13 argued that the new constitution did not provide for a strong president
14 but only one who had somewhat broader powers than a monarch in a
15 constitutional parliamentary monarchy."
16 And can you give us an example of a constitutional parliamentary
17 monarchy. Would that be Queen Elizabeth in England?
18 A. Well, when we look at the powers of the president of the republic
19 according to the constitution of 1990 along with the explanations we've
20 already provided, he simply cannot apply some of these powers because the
21 federal constitution reserves that for the federal state. Part of them
22 cannot be carried out because certain laws had not been passed on the
23 basis of which he could exercise these powers. So when these powers were
24 measured against the Queen of England, well they're about the same because
25 the Queen of England cannot decide herself who the prime minister
1 designate is going to be, nor can she dissolve parliament, nor can she
2 refuse to support a law that was passed in parliament. I remember the
3 last person who did that was Queen Ann as far back as 1707, the last
4 British monarch to have done this.
5 Q. Okay. Professor, regarding the powers of the president under
6 Article 83 of that constitution, the last one, item number 12, which is
7 something I refer to as sort of the catch-all provision that says: "The
8 president can conduct other affairs in accordance with the constitution."
9 There are similar sort of catch-all powers for each the government
10 and the National Assembly in that constitution, correct, not worded
11 exactly the same but generically similar?
12 A. What is meant here are the powers of the president that are not
13 concentrated, not exactly enumerated in Article 83, but rather stipulated
14 in other articles, specifically 84, 85, 89, and 132, paragraph 1. Nowhere
15 else does the constitution give any powers to the president. This
16 provision means that a law cannot give him any new powers, and we saw what
17 happened with the law that gave such authority the president at one point
18 when the Constitutional Court ruled on this, the law ceased to exist.
19 Q. Well, I have a question about that. You say that it means -- "in
20 accordance with the constitution" means in accordance with his
21 presidential powers under the articles in, I think, 84 through 89 or 84,
22 85, and 89, and 132. But if that were the case, why wouldn't item number
23 12 just simply say: "And conduct other affairs in accordance with
24 Articles 84, 85, 89, and 132"? Then there would be no doubt about it.
25 A. You are right. It can be put that way, too. It's a matter of
1 expression, legal technique, if you will. It is more concise if it is put
2 the way you proposed just now. But it can also be put this way, too.
3 Now, the question is one of affinity, the affinity of the person drafting
4 the text.
5 Q. And you were part of the constitutional commission that drafted
6 the constitution, correct?
7 A. [No verbal response]
8 Q. How many people were on that commission?
9 A. That constitutional commission -- well, it's a big body. It had
10 tens of members, but a smaller body was created out of it called the
11 coordination committee of the commission and that body had 10 or 12
12 members. They established the draft constitution which was afterwards
13 adopted by the constitutional commission and then presented to the
14 Assembly for its further discussion in 1990.
15 Q. Can you talk with us a bit about how that worked. The
16 coordinating committee, were you a member of the coordinating committee?
17 A. Yes, yes, I was a member of the coordinating commission. The
18 president of the coordination commission was Mr. Slobodan Vucetic. He was
19 also the last president of the Constitutional Court of Serbia, and the
20 commission was formulate -- was actually a working team of experts; and
21 quite literally, they wrote the text. Since I was a person who dealt
22 directly with constitutional law for years, I was asked to come up with a
23 structure of the constitution, whereas we together sought specific
24 solutions at committee meetings, or rather, meetings of the coordinating
1 Q. Who was the -- was there a single overall head of the entire
3 A. There was. Ex officio it was the president of the National
4 Assembly; at that time, it was Mr. Zoran Sokolovic.
5 Q. Did he do any of the actual work of drafting?
6 A. He did not do any of the actual work for a simple reason. He had
7 a degree in agriculture, so he was not an expert in law. So -- well, on
8 that team, on the coordinating commission, there were people who had
9 professional knowledge of writing regulations and things like that.
10 Q. And what was the role of the coordinating commission vis-a-vis the
11 entire commission? Was the coordinating commission the one that was doing
12 the actual hands-on drafting or doing the editing and proofing of drafting
13 that came from the wider commission? What was your role?
14 A. Our role was to prepare texts for the constitutional commission.
15 So this was a working team. I remember that these meetings of ours went
16 on until late at night, until dawn almost. It is true that the
17 constitution is short, it has only 136 articles, but all of that had to be
18 formulated. It was necessary to debate different solutions before that
19 and to reach agreement. So this team did most of the work concerning the
21 As for the constitutional commission, perhaps there would just be
22 proposals for redrafting some of the provisions, but there weren't any
23 proposals that would change the very substance.
24 JUDGE CHOWHAN: Sorry, I have just a question with your
1 Now, did you have before you certain norms to be kept there for
2 framing of the constitution and also any grundnorm, and how did you
3 include political thoughts according to these norms in the constitution?
4 Who guided all that and what were those norms, if you could briefly tell
5 us. Thank you, learned Professor.
6 THE WITNESS: [Interpretation] Of course, we proceeded from the
7 historical point in time that Serbia was in. An attempt was made to do
8 away with the socialist self-management system that had existed until
9 then. We believed that the constitution that was closest to the situation
10 that Serbia was facing then, of course, it would have to be modified in
11 terms of political culture, history, Serbia's constitutional history,
12 because Serbia does have a rich constitutional history. It passed its
13 first constitution as far back as 1835. It was our belief that this was
14 the 1958 constitution of the 5th French Republic. So as far as the
15 organisation of power is concerned, the main ideas came from the French
16 constitution of 1958.
17 As for heading the work of the team, I said a few minutes ago that
18 the chairman of the coordinating commission was Mr. Slobodan Vucetic. He
19 chaired the meetings and the members of the coordinating commission very
20 actively participated in the work of the commission. So it was team work.
21 The constitution was a team effort. Journalists and other writers
22 simplified matters and kept referring to me as the writer or the author of
23 the constitution, which is impossible. A single person cannot be the
24 author of a constitution, that is impossible. Several people have to be
25 involved in writing a constitution.
1 JUDGE CHOWHAN: But did you, sir, have representation from the
2 various ethnic groups which constituted the populace and were they heard
3 and what were the political thoughts expressed and how were they
4 accommodated? Thank you.
5 THE WITNESS: [Interpretation] Absolutely. This constitutional
6 commission was a commission from the old period, so to speak, when there
7 was socialist self-management in Yugoslavia, where great attention was
8 paid to the equality of nations, of ethnic rights, of the Yugoslav nations
9 and nationalities, ethnic minorities. At that time, all bodies were
10 constituted on the basis of equal representation, parity. In every body
11 there were representatives of different ethnic communities and of
12 different national minorities. On the constitutional commission as well
13 we had such persons. I cannot remember exactly now, it was a long time
14 ago, but I do remember, for example, that there was an Albanian
15 Mr. Tefki Lugixhi [phoen], that he was one of the members. There were
16 other Albanians who were members of the constitutional commission too. Of
17 course, it depended on their professional knowledge and on their political
18 wishes that were clearly defined. And then they took part in these
19 debates accordingly.
20 JUDGE CHOWHAN: And did you decide the issues on a majority vote
21 within the commission or not when an issue was discussed? Thank you. And
22 that was the last.
23 THE WITNESS: [Interpretation] At the constitutional commission we
24 always decided by majority vote, but the chairman, Mr. Sokolovic, always
25 tried to reach a consensus to have general agreement, not to have any
1 out-voting. Efforts were made to satisfy all to a maximum and to find a
2 compromise. You will see that in this constitution an archaic term was
3 kept which doesn't really meaning anything linguistically, the term
4 "narodnost". The term "narodnost" was a term used for national
5 minorities because representatives of national minorities believed that
6 the word "minority" was offensive to them, so this term remained. And all
7 foreigners wondered when they heard the translation into foreign languages
8 what this "narodnost" meant and it's basically the same thing as a
9 national minority, however, respecting the feelings of the members of
10 national minorities that term was kept.
11 Then already in the preamble, for instance, the preamble of that
12 constitution you see proceeding from, et cetera, et cetera, the
13 centuries-long struggle, and then it says historical development and joint
14 life of all the peoples and nationalities in Serbia.
15 MR. HANNIS:
16 Q. Professor, you said that typically I think the votes were taken by
17 majority, the chairman tried to have a consensus reached. But I take it
18 that sometimes that didn't happen, that they couldn't have a consensus on
19 portions of this constitution. So who was the final arbiter in those
20 situations, was it just simply if there was a majority in favour it went
21 in or did the chairman have the authority to say yes or no to a
22 controversial provision? How did that work?
23 A. It was decided by majority vote at the time. I can't remember
24 exactly which chapters of the constitution were involved, but I remember,
25 for example, the article declaring the equality of various types of
1 ownership where one of the possible kinds of property is listed as social
2 property, this is Article 56. They wanted this term, socially-owned
3 property to be erased, so that the only ones remaining would be state,
4 private, and co-op types of ownership.
5 Some members of the commission believed that socially-owned
6 property had to be erased, and I remember who wanted that to be erased.
7 For example, Professor Budimir Kosutic who was a member of the
8 constitutional commission. However, by voting we decided that
9 socially-owned property ought to remain because it was a reality at the
10 time. We also believed that the market was that criteria which would
11 decide which types of ownership would remain and which wouldn't. In the
12 new constitution, we no longer have this term "socially-owned property."
13 MR. HANNIS: Pardon me?
14 JUDGE BONOMY: Did that answer your question?
15 MR. HANNIS: Yes, I think it did. I have --
16 JUDGE BONOMY: In the first third. Thank you.
17 MR. HANNIS: Yes. I have another question.
18 Q. Professor, of the 136 articles, were there any of those that you
19 were opposed to that got put in the constitution in spite of your personal
20 disagreement or objection?
21 A. I, for example, disagreed with the term "narodnost," which means
22 ethnic minority. I also was against the formulation where member of
23 parliament represents the citizens of the territory from which he was
24 elected. This is in Article 86. However, the mentality from the old
25 system was still quite strong. So an absolutely free mandate was
1 something that could not be accepted. Therefore, they believed that a
2 member of the parliament had to be linked to the electorate that elected
3 him. Perhaps I was against some other formulations as well that found
4 their way into the constitution.
5 Q. Thank you. I want to go back to Article 83, number 12, under the
6 powers of the president and what I call the catch-all phrase about:
7 "Conduct other affairs in accordance with the constitution." I had
8 proposed an alternative way of phrasing. Would you agree there's one way
9 it could be done, but you said this one was the one that was preferred.
10 Would you agree with me, however, Professor, under this one there is some
11 room for an argument to be made that there's an ambiguity here upon which
12 a strong president could argue that: Well, I take that as meaning I can
13 do anything that's consistent with the constitution and for which there is
14 no specific prohibition against my engaging in that activity. Do you
15 understand my question?
16 A. I understand. I think that that would not be possible. He can
17 only exercise the power explicitly given to him by the constitution, not
18 the power that he supposes he has within the spirit of the constitution
19 and his constitutional position, because his responsibility in relation to
20 this constitution is based on a violation of the constitution. He can
21 only be recalled if the Assembly establishes that he violated the
22 constitution, and he definitely violated the constitution if he exercised
23 the power not granted to him by the constitution.
24 All powers need to be explicitly specified. There are no assumed
25 powers. So you cannot give it this interpretation that the president of
1 the republic believes to have some power. For example, the power to
2 initiate legislative procedure. No. The constitution quite clearly
3 spells out who has the legislative initiative, and the president does not
4 have it. He has no right to address directly the parliament, members of
5 the parliament, and so on.
6 This paragraph in Article 83 means that in addition to these
7 powers, he has only those that are explicitly spelled out by the
8 constitution, not some powers that he assumes he has.
9 Q. Well, I'm recalling your testimony earlier in the week when we
10 were talking about the promotion of General Lukic, and that seemed to be
11 something where the president presumed he had a power that seemed to be in
12 the constitution until the Constitutional Court said otherwise, correct?
13 A. A correction. It is not that he believed that, rather the Law on
14 the Ranks of the Members of the Ministry of the Interior gave him that
15 power and the Law on Ranks of the Members of the Ministry of the Interior
16 in Articles 6 and 10 gave such a power to the president of the republic.
17 And the president of the republic applied or exercised that power all the
18 way up until the Constitutional Court said that the president of the
19 republic is not entitled to that power because that is not in accordance
20 with the constitution. And the constitution referred to the very same
21 reason that we mentioned now; namely, that the president of the republic
22 can have only those powers which you can see is in the decision of the
23 Constitutional Court here, that the president of the republic can have
24 only those powers which are explicitly stated in the constitution. This
25 is why the law in its provisions granting to the president the powers not
1 recognised by the constitution was unconstitutional.
2 Q. Okay. Thank you. I'll come back to a related topic later. In
3 your testimony on Monday, I think this was at page 12877 of the
4 transcript, you were talking about the situation in 1990 when the new
5 constitution was passed and that there was a danger of secession of
6 certain republics. And you mentioned that the Constitution of Serbia
7 provided sort of in anticipation of a possible constitutional vacuum, it
8 provided attributes of an independent state to Serbia. Can you explain to
9 us what attributes of an independent state are or the ones that were
10 provided for in the constitution. Is that the army and conducting foreign
11 affairs? Are those the matters you were referring to?
12 A. Yes, that's precisely the matters that I was referring to. A
13 federal unit cannot have its autonomous foreign policy in any federation
14 in the world; nor can it have its own Ministry of Foreign Affairs; nor can
15 it be represented in international organisations, such as the UN, for
16 example; nor can it have its own army. So these are the reserve powers
17 reserved for the president of the republic, and some others listed in
18 Article 72 of the constitution which specified the competencies of Serbia.
19 See, this Article 72 is completely atypical, and it exists
20 precisely because of the situation in which Serbia was at the time. In
21 case of secession, they didn't want there to be any competencies for which
22 nobody was in charge. And this is why these competencies were listed in
23 Article 72, even though some of them fell within the jurisdiction of the
24 Federation. This Constitution of Serbia in Article 135 clearly says that
25 everything that falls within the jurisdiction of the Federation, but also
1 within the jurisdiction of Serbia, will be carried out in accordance with
2 the Constitution of the Federation. The supremacy is given here to the
3 Constitution of the Federation, which is quite normal anywhere in the
4 world. Due to this atypical situation in which Serbia found itself in
5 1990, the Constitution of Serbia contains such provisions as well.
6 Q. Thank you, Professor. I'll have some questions about Article 135
7 later on.
8 MR. HANNIS: Your Honour, if I could ask one more question.
9 Q. You made reference to Serbia as being a federal unit. I take it
10 you mean the Republic of Serbia was a federal unit within the Federation
11 of Yugoslavia, correct?
12 A. Yes, certainly.
13 Q. Were the autonomous provinces federal units as well?
14 A. They were not. Autonomous provinces are not federal units. One
15 can see that in Article 2 of the Constitution of the Socialist Federative
16 Republic of Yugoslavia of 1974. In that article - and that article reads
17 that Socialist Federative Republic of Yugoslavia comprises six federal
18 units and it clearly specifies which ones, without listing two autonomous
19 provinces. Autonomous provinces were within the composition of Serbia as
20 a federal unit.
21 So in Article 2 of the 1974 constitution, the structure of the
22 then-Yugoslav Federation was established, and according to that article
23 the federation had six federal units. One of those six had within its
24 composition two autonomous provinces. We have the text of the 1974
25 constitution somewhere here, and if you wish I can read it from my own
1 copy here.
2 Q. Let's stop here for the day.
3 JUDGE BONOMY: Just before stopping, can you remind me, Professor,
4 whether an amendment to the 1990 constitution would require a referendum?
5 THE WITNESS: [Interpretation] Yes.
6 JUDGE BONOMY: So if you wished to amend that constitution,
7 roughly how long would it take for the process to be undertaken and
9 THE WITNESS: [Interpretation] Taken into account the deadlines in
10 the Law on Referendum, time-limits in that law, and in order, or rather,
11 if the Assembly was as expeditious as possible, it would take at least two
12 months, because the draft amendments had to be adopted in the National
13 Assembly by two-thirds majority. And then at a referendum by majority
14 votes of voters in registry lists, that had to be adopted too. And from
15 the moment the referendum was scheduled until it was held, there needed a
16 certain time-limit to lapse, as was established by the law, and I think
17 that it would take at least two months for that to be done according to
18 the 1990 constitution.
19 JUDGE BONOMY: Thank you.
20 Well, that completes our sitting for today. Your
21 cross-examination will continue tomorrow at 9.00. Meanwhile, can you
22 leave the courtroom again with the usher.
23 [The witness stands down]
24 JUDGE BONOMY: And the court is adjourned until 9.00 tomorrow.
25 --- Whereupon the hearing adjourned at 3.31 p.m.,
1 to be reconvened on Friday, the 10th day of
2 August, 2007, at 9.00 a.m.